FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOHN C. BOHDAN                                GREGORY F. ZOELLER
Deputy Public Defender                        Attorney General of Indiana
Fort Wayne, Indiana
                                              HENRY A. FLORES, JR.
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                              FILED
                                                                            Nov 16 2012, 9:24 am

                             IN THE
                                                                                   CLERK
                   COURT OF APPEALS OF INDIANA                                   of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




SHARMAIN J. SMITH,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 02A03-1204-CR-174
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck Jr., Judge
                            Cause No. 02D04-1006-FB-103



                                  November 16, 2012


                             OPINION - FOR PUBLICATION


BRADFORD, Judge
       While conducting a traffic stop, an officer discovered that Sharmain J. Smith was

driving while intoxicated. The officer placed Smith under arrest and then conducted a search

of Smith’s vehicle. During this search, the officer discovered open beer bottles and a

handgun. Smith was charged with numerous crimes, including illegal possession of a firearm

by a serious violent felon. Both prior to and at trial, Smith moved to suppress the evidence of

the handgun, contending that the search violated his rights under the Fourth Amendment to

the United States Constitution and Article I, Section 11 of the Indiana Constitution. The trial

court denied Smith’s request, and Smith was convicted of illegal possession of the firearm.

On appeal, we conclude that because the officer had probable cause to arrest Smith, the

search was a valid search incident to arrest, and, as such, Smith’s constitutional rights were

not violated. Therefore, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       During the early morning of June 20, 2010, Fort Wayne Police Officer Larry Tague

initiated a traffic stop of Smith’s vehicle after observing the vehicle make erratic and unsafe

lane changes. After initiating the traffic stop, Officer Tague observed Smith lean forward

and to the right as if to conceal something before stopping his vehicle. Upon approaching the

vehicle, Officer Tague observed that Smith, the sole occupant of the vehicle, displayed signs

of intoxication, including exceptional nervousness, a strong odor of alcohol on his breath,

and watery and bloodshot eyes.

       Officer Tague placed Smith under arrest for operating a vehicle while intoxicated.

After placing Smith under arrest, Officer Tague conducted a search of Smith’s vehicle for the

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purpose of discovering evidence of operating while intoxicated. During this search, Officer

Tague discovered open beer bottles and a handgun. One open bottle of beer was found

wedged between the passenger seat and the center console. The handgun was found under

the driver’s seat.

       On June 24, 2010, the State charged Smith with Count I - Class B felony unlawful

possession of firearm by a serious violent felon,1 Count II - Class D felony operating while

intoxicated, and Count III - Class D felony operating a vehicle with .08 or more alcohol

concentration equivalent in blood or breath. On July 27, 2010, the State amended the

charging information to include Count IV, which alleged that Smith was a habitual offender.

On October 15, 2010, Smith pled guilty to Counts II through IV, with sentencing to be

conducted after disposition of Count I.

       With respect to Count I, on January 27, 2012, Smith filed a motion to suppress the

evidence obtained during the search incident to his arrest. The trial court conducted a

hearing on Smith’s motion to suppress on February 10, 2012, after which it denied Smith’s

motion. At trial, Smith again objected to the admission of the evidence obtained as a result

of the search incident to his arrest, incorporating the reasons presented in his motion to

suppress. The evidence was admitted over Smith’s objection. At the conclusion of trial, the

jury found Smith guilty as charged. On March 19, 2012, the trial court sentenced Smith to an

aggregate sentence of twenty-one and one half years. The trial court further ordered that

Count III be merged into Count II. This appeal follows.


       1
           Ind. Code § 35-47-4-5 (2009).
                                             3
                             DISCUSSION AND DECISION

       Smith contends that the trial court erred in denying his motion to suppress the

evidence obtained following his arrest for operating a vehicle while intoxicated. Although

Smith originally challenged the admission of the evidence through a motion to suppress, he

appeals following a completed trial and thus challenges the admission of the evidence at trial.

“Accordingly, ‘the issue is more appropriately framed as whether the trial court abused its

discretion by admitting the evidence at trial.’” Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct.

App. 2007) (quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)).

       Our standard of review for rulings on the admissibility of evidence is
       essentially the same whether the challenge is made by a pre-trial motion to
       suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
       75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
       evidence, and we consider conflicting evidence most favorable to the trial
       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied. We also consider uncontroverted evidence in the defendant’s
       favor. Id.

Id.

       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct.

App. 2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of

evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at

273). An abuse of discretion involves a decision that is clearly against the logic and effect of

the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093,

1095 (Ind. Ct. App. 2000)). In the instant matter, Smith argues that the trial court abused its


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discretion in admitting the handgun recovered during the search incident to his arrest because

the handgun was discovered in violation of his constitutional rights under both the Fourth

Amendment to the United States Constitution and Article I, Section 11 of the Indiana

Constitution.

                                A. The Fourth Amendment

       Smith argues that the trial court abused its discretion because the handgun was

discovered during an illegal warrantless search. The Fourth Amendment provides “[t]he

right of the people to be secure in their persons, houses, papers and effects against

unreasonable searches or seizures shall not be violated.” The Fourth Amendment prohibits

unreasonable searches and seizures. Burkes v. State, 842 N.E.2d 426, 429 (Ind. Ct. App.

2006), trans. denied. Because the Fourth Amendment generally prohibits warrantless

searches and seizures, the State has the burden of proving that an exception to warrant

requirement existed at the time of the search when the search is conducted without a warrant.

Edmond v. State, 951 N.E.2d 585, 588 (Ind. Ct. App. 2011) (citing Ratliff v. State, 770

N.E.2d 807, 809 (Ind. 2002)).

       The United States Supreme Court has held that one exception to the warrant

requirement is a search incident to a lawful arrest. See Arizona v. Gant, 556 U.S. 332, 338

(2009). “The exception derives from interests in officer safety and evidence preservation that

are typically implicated in arrest situations.” Id. However, police may search a vehicle

incident to arrest only if the arrestee is within reaching distance of the passenger

compartment at the time of the search or if it is reasonable to believe the vehicle contains

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evidence of the offense of the arrest. Id. at 346-47.

       Here, the record demonstrates that Officer Tague conducted a search of Smith’s

vehicle after Smith was arrested for operating a vehicle while intoxicated. Smith does not

claim that the search was illegal because Officer Tague did not have probable cause to

validly place him under arrest for the above-stated offense, but rather that the search of his

vehicle went beyond that permitted following a valid arrest. Specifically, Smith asserts that

“[w]hile the vehicle did contain evidence in support of the arrest for operating while

intoxicated, there was insufficient support in the record to justify the more expansive search

ultimately undertaken by Officer Tague after his observation of two beer bottles in the car.”

Appellant’s Br. p. 15. For its part, the State argues that the continued search was proper

because it was reasonable for Officer Tague to believe that he might find additional evidence

of intoxication in the remaining unsearched parts of the passenger compartment of the

vehicle, including under the driver’s seat. We agree.

       After initiating the traffic stop, Officer Tague observed Smith lean forward and to the

right as if trying to conceal something before pulling over. Upon approaching the vehicle,

Officer Tague further observed that Smith, the sole occupant of the vehicle, displayed

multiple signs of intoxication. Smith was placed under arrest for operating a vehicle while

intoxicated.

       Officer Tague testified that he searched the entire passenger compartment after

placing Smith under arrest because, in his experience as a police officer, one can often find

evidence of operating while intoxicated “everywhere” within the passenger compartment,

                                              6
including under the driver’s seat, in the center console, on the passenger’s side of the vehicle,

hidden in the back seat, and in the pockets on the back of the driver’s and front passenger’s

seats. Sup. Hr. Tr. p. 10. Officer Tague further testified that during this search of Smith’s

vehicle, he was looking for beer bottles, beer caps, pills, and other evidence of Smith’s

intoxication, all of which, again based on his experience as a police officer, he believed could

possibly be found under the driver’s seat. As a result of his search, Officer Tague ultimately

discovered two open beer bottles and a handgun. Under the circumstances, we conclude that

Officer Tague reasonably believed that his search of the passenger compartment of Smith’s

vehicle, including under the driver’s seat, could turn up evidence of the offense for which

Smith was arrested. As a result, Officer Tague conducted a lawful search of Smith’s vehicle

incident to Smith’s arrest. Smith’s rights under the Fourth Amendment were not violated.

                                   B. Article I, Section 11

       Smith also argues that the search incident to his arrest violated his rights under Article

I, Section 11.

       Article I, Section 11 provides, “[t]he right of the people to be secure in their
       persons, houses, papers, and effects, against unreasonable search or seizure,
       shall not be violated....” The purpose of this article is to protect from
       unreasonable police activity those areas of life that Hoosiers regard as private.
       Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). The provision must receive
       a liberal construction in its application to guarantee the people against
       unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind.
       1995).

State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006).

               “While almost identical to the wording in the search and seizure clause
       of the federal constitution, Indiana’s search and seizure clause is independently
       interpreted and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App.
                                                7
       2008). Under the Indiana Constitution, the legality of a governmental search
       turns on an evaluation of the reasonableness of the police conduct under the
       totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.
       2005).… The burden is on the State to show that under the totality of the
       circumstances, the intrusion was reasonable. Id.

Hathaway v. State, 906 N.E.2d 941, 945 (Ind. Ct. App. 2009).

       For the reasons stated in our analysis relating to the Fourth Amendment, we conclude

that Officer Tague’s search of Smith’s vehicle was reasonable under the totality of the

circumstances and did not violate Article I, Section 11. Officer Tague, who had observed

furtive movements by Smith suggesting that Smith was trying to conceal evidence,

reasonably believed that the search could, and in fact did, result in the discovery of evidence

relating to the offense for which Smith was arrested, i.e., operating a vehicle while

intoxicated. During the search, Officer Tague found at least two open beer bottles in addition

to the handgun. Officer Tague found the handgun while searching under the driver’s seat for

additional evidence of intoxication including beer bottles, beer bottle caps, and pills. Officer

Tague testified that these items are small enough that each could have been found under the

driver’s seat. Because Smith’s arrest was valid and Officer Tague reasonably believed that a

search of the vehicle could lead to discovery of evidence relating to Smith’s arrest, we

conclude that Officer Tague had probable cause to search the vehicle for evidence relating to

the offense for which Smith was arrested. We further conclude that the search conducted by

Officer Tague was reasonable under the totality of the circumstances, and, as such, Smith’s

rights under Article I, Section 11 were not violated.

       Because Smith’s rights under the Fourth Amendment and Article I, Section 11 were

                                               8
not violated, the trial court acted within its discretion in admitting into evidence the handgun

found during the search of Smith’s vehicle following his arrest. Therefore, we affirm his

conviction.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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