                                                                           FILED
                                                                       Jun 23 2020, 2:18 pm

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
                                IN THE

        Indiana Supreme Court
                  Supreme Court Case No. 20S-CR-418

                           Brian E. Hardin,
                           Appellant (Defendant),

                                     –v–

                           State of Indiana,
                             Appellee (Plaintiff).


            Argued: September 26, 2019 | Decided: June 23, 2020

                   Appeal from the Morgan Circuit Court,
                          No. 55C01-1709-F2-1851
                 The Honorable Matthew G. Hanson, Judge

         On Petition to Transfer from the Indiana Court of Appeals,
                              No. 18A-CR-2629



                          Opinion by Justice Goff
                           Justice Massa concurs.
              Justice Slaughter concurs with separate opinion.
Justice David concurs in part, dissents in part with separate opinion in which
                          Chief Justice Rush joins.
Goff, Justice.

   Both our federal and state constitutions provide protections from
unreasonable searches and seizures. This case implicates those
protections by raising the following question: Do law-enforcement officers
violate either constitution by searching a person’s vehicle when the person
drives that vehicle up to his or her house while officers are there executing
a search warrant for the house that does not address vehicles? Based on
the circumstances here, we answer “no” and affirm the trial court. In
arriving at that answer, we provide guidance on the test applicable to
these specific types of situations under the Fourth Amendment to the
United States Constitution. We also survey our precedent under Article 1,
Section 11 of the Indiana Constitution and provide generally applicable
guidance on our totality-of-the-circumstances test.


Factual and Procedural History
   Late one night in September 2017, a team of four law-enforcement
officers prepared to execute a warrant to search Brian Hardin’s home in
Camby, Indiana. The search sprang from a multi-agency investigation
into the alleged drug-dealing activities of several people, including
Hardin. As part of this investigation, officers wiretapped one of Hardin’s
confederates, Jerry Hall, and intercepted communications between the
two men regarding the purchase and distribution of methamphetamine.
Officers also observed Hardin driving a truck, registered in his name, to
his home in Camby and Hall’s home in Indianapolis. Indiana State Police
(ISP) Detective Joshua Allen put this information in an affidavit seeking a
warrant to search Hardin’s home for drugs and related items. The
Morgan Superior Court issued the warrant but did not address the
treatment of vehicles that might be found on the premises.

   The four officers, including Detective Allen, forcibly entered Hardin’s
home, learned that no one else was there, and began their search. In the
garage, they found digital scales and “heat seal bags that contained a
crystal substance” which tested positive for methamphetamine. Tr. Vol. 2,
p. 93. The officers also found syringes and two “pay and owe sheets,”



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020        Page 2 of 21
which Detective Allen described as ledgers to keep track of who owed
money for drugs provided. Id. at 118. While the officers were at the
home, Hardin’s girlfriend and her daughter arrived, and the officers
escorted them both inside the home for supervision. Also during the
search, the officers learned from police executing a search warrant on
Hall’s home in Indianapolis that Hardin had recently obtained a large
amount of methamphetamine from Hall.

   Based on this information, Detective Allen and ISP Trooper John
Patrick left in separate vehicles to try to find Hardin. ISP Detective Matt
Fleener and ISP Trooper Kent Rohlfing stayed behind in case Hardin came
back to the home.

   While Detective Allen and Trooper Patrick looked for their suspect,
Hardin returned home. Trooper Rohlfing, covering the front door of
Hardin’s home, saw a truck pull into the driveway and heard the
overhead-garage door open. A few seconds later, Hardin opened the door
between the garage and kitchen, which Detective Fleener was covering.
Detective Fleener identified himself as a law-enforcement officer and
quickly closed the gap between himself and a backpedaling Hardin. After
a scuffle, Detective Fleener and Trooper Rohlfing handcuffed Hardin and
had him sit in a chair. They then called EMS to tend to Hardin’s minor
injuries and informed Detective Allen and Trooper Patrick that Hardin
was in custody at the home.

  Detective Allen and Trooper Patrick returned to the home, and
Detective Allen searched the vehicle Hardin drove into his driveway—the
same one officers observed him driving during previous surveillance.
Detective Allen found 108 grams of crystal methamphetamine in a black
bag underneath the driver’s seat.

   The State charged Hardin with two counts: dealing in
methamphetamine and possession of methamphetamine. It also sought a
habitual-offender enhancement, which it later dismissed.

   Hardin filed a pretrial motion to suppress the evidence obtained during
the search. Basing his argument on both the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020       Page 3 of 21
Constitution, Hardin argued that the officers exceeded the scope of the
warrant by searching his vehicle, which was not mentioned in the
warrant. After a hearing, the trial court denied the suppression motion.
Specifically, the trial court found that Hardin’s vehicle, parked in the
driveway to his home, was within the curtilage of the home and therefore
fell within the scope of the warrant. Alternatively, the court found that
probable cause and the automobile exception to the Fourth Amendment’s
warrant requirement supported the search of Hardin’s vehicle. Hardin
did not seek interlocutory appeal, and the case proceeded to a bench trial.

   At trial, Hardin objected to the introduction of the evidence obtained
during the search of his vehicle, reiterating and incorporating the
suppression arguments he previously made. The trial court overruled the
objection and admitted the evidence. Ultimately, the court found Hardin
guilty of both counts—dealing in and possession of methamphetamine—
and sentenced him to an aggregate term of nearly twenty-two years.

   Hardin appealed, challenging the admission of the evidence found in
his vehicle based on the Fourth Amendment and Article 1, Section 11. The
Court of Appeals affirmed in a split decision. Hardin v. State, 124 N.E.3d
117 (Ind. Ct. App. 2019). Relying on recent precedent from the Court of
Appeals and the fact that Hardin did not challenge the trial court’s finding
that his vehicle was within the curtilage of his home, the majority found
that the search did not violate the Fourth Amendment. Id. at 123–24. It
likewise found no violation of Article 1, Section 11 based on the totality of
the circumstances. Id. at 124. Judge Mathias, however, dissented. Id. at
125–26 (Mathias, J., dissenting). In concluding that the search violated
both our federal and state constitutions, he focused on the relative ease
with which the law-enforcement officers could have included a
description of Hardin’s vehicle in the warrant for the home and with
which they could have obtained a separate warrant specifically for the
vehicle. Id (Mathias, J., dissenting).

   Hardin petitioned for transfer, which we now grant, thereby vacating
the Court of Appeals opinion. See Ind. Appellate Rule 58(A).




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020        Page 4 of 21
Standard of Review
   We review a trial court’s ruling on the admissibility of evidence at trial
for an abuse of discretion. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014). “But the ultimate determination of the constitutionality of a search
or seizure is a question of law that we consider de novo.” Id.


Discussion and Decision
   Hardin argues that the trial court should not have admitted the
evidence found during the search of his vehicle because the search
violated the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Indiana Constitution. He acknowledges that
the law-enforcement officers obtained a warrant for his home and that the
trial court found that his vehicle was within the home’s curtilage when the
officers searched it. Neither Hardin nor the State asks us to address
whether the vehicle was parked within the home’s curtilage, so we
assume without deciding that the trial court correctly resolved that issue.
Instead, Hardin contends that the search was constitutionally
unreasonable and not supported by the warrant for his home, which
addressed neither vehicles generally nor his vehicle specifically. We
consider the nuances of this argument under the Fourth Amendment and
Article 1, Section 11 below.


I. The search of Hardin’s vehicle did not violate the
   Fourth Amendment because the vehicle fell within
   the scope of the warrant for Hardin’s home.
   The Fourth Amendment to the United States Constitution provides:


      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020         Page 5 of 21
       particularly describing the place to be searched, and the
       persons or things to be seized.


   A warrant covering a house allows searches of things and places within
the house that could contain the object of the search. United States v. Ross,
456 U.S. 798, 820–21 (1982) (“A lawful search of fixed premises generally
extends to the entire area in which the object of the search may be found
and is not limited by the possibility that separate acts of entry or opening
may be required to complete the search.”). The boundaries of a house for
Fourth Amendment purposes extend beyond the physical structure of the
house itself to include the curtilage—that is, “the area immediately
surrounding and associated with the home.” Collins v. Virginia, 138 S. Ct.
1663, 1670 (2018) (citations omitted). Thus, the holding of Ross extends
into the curtilage, meaning that a warrant for a house generally allows
searches of the things and places located in the curtilage that could
contain the object of the search. See Sowers v. State, 724 N.E.2d 588, 590–91
(Ind. 2000). This case tests the limits of that established Fourth
Amendment jurisprudence. Specifically, it requires us to answer the
following question: When can police, armed with a warrant to search a
home, search a vehicle located in the home’s curtilage?1

   In answering this question of first impression for our Court, “we
consider the opinions and law of other jurisdictions as helpful to our
analysis.” Ackerman v. State, 51 N.E.3d 171, 180 (Ind. 2016). Other courts
faced with this question have generally fallen into one of two broad
groups, differing in whether they consider who owns or controls the
vehicle to be searched.




1 The warrant here described the premises without placing any specific limitation on searches
of vehicles. The inclusion of such a limitation in a warrant could change the analysis. See
United States v. Johnson, 640 F.3d 843, 845–46 (8th Cir. 2011) (noting that warrants may contain
limitations on vehicle searches, constraining officers’ authority to search).



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                          Page 6 of 21
   Courts in one group don’t consider ownership or control of the vehicle
at all. They allow searches of any vehicle found on the premises for which
a warrant has been issued.
    • See, e.g., United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992)
        (“This court has consistently held that a warrant authorizing a
        search of ‘the premises’ includes vehicles parked on the
        premises.”);
    • United States v. Armstrong, 546 F. App’x 936, 939 (11th Cir. 2013)
        (unpublished) (stating that a search warrant for “the ‘property’ at
        the described location . . . is sufficient to support a search of a
        vehicle parked on the premises”);
    •   McLeod v. State, 772 S.E.2d 641, 646 (Ga. 2015) (citation omitted)
        (“Vehicles parked within the curtilage of a dwelling to be searched
        pursuant to a warrant may also be searched pursuant to that
        warrant.”).
    •   See generally 2 Wayne R. LaFave, Search and Seizure § 4.10(c), at
        955–56 (5th ed. 2012 & Supp. 2019) (noting that many decisions do
        not suggest a limitation to which vehicles on a property being
        searched pursuant to a warrant may be searched).

  Courts in the other group do consider ownership or control of the
vehicle in determining whether it falls within the scope of the warrant.
These courts differ slightly in how they describe the test, but they
generally exclude guests’ vehicles from the scope of a warrant for a home
while allowing law-enforcement officers to search the vehicles of the
home’s owner or resident.
   • See, e.g., United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir.
       1990) (defining the scope of a premises search warrant “to include
       those automobiles either actually owned or under the control and
       dominion of the premises owner or, alternatively, those vehicles
        which appear, based on objectively reasonable indicia present at
        the time of the search, to be so controlled”);
    •   United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002) (citing
        Gottschalk, 915 F.2d at 1461) (providing the same rule);
    •   United States v. Duque, 62 F.3d 1146, 1151 (9th Cir. 1995) (citation
        omitted) (holding that “a search warrant authorizing a search of a


Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020          Page 7 of 21
         particularly described premises may permit the search of vehicles
         owned or controlled by the owner of, and found on, the premises”);
    •    United States v. Pennington, 287 F.3d 739, 745 (8th Cir. 2002) (citation
         omitted) (noting that, even when not specifically listed in a
         warrant, “a vehicle found on the premises (except, for example, the
         vehicle of a guest or other caller) is considered to be included
         within the scope of a warrant authorizing a search of the
         premises”);
    •    United States v. Evans, 92 F.3d 540, 543–44 (7th Cir. 1996) (stating
         that a warrant to search a house allows law enforcement to search a
         vehicle within the premises “unless [the vehicle] obviously
         belonged to someone wholly uninvolved in the criminal activities
         going on in the house”);2
    •    State v. Patterson, 371 P.3d 893, 899 (Kan. 2016) (adopting the test as
         outlined by the Tenth Circuit in Gottschalk).
    •    See generally 2 LaFave, Search and Seizure § 4.10(c), at 955–56
         (asserting that “the conclusion that a description of premises covers
         vehicles parked thereon should at least be limited to vehicles under
         the control (actual or apparent) of the person whose premises are
         described”).
Although courts in this group initially spoke of searching vehicles of the
homeowner rather than resident (such as a renter), they later interpreted
the rule to cover both. See, e.g., Evans, 92 F.3d at 543 (“We cannot think of
any reason for distinguishing between an owner and a tenant, or for that
matter between an owner or tenant on the one hand and a sublessee or
intermittent occupant . . . on the other.”); United States v. Hohn, 606 F.
App’x 902, 909 (10th Cir. 2015) (unpublished).




2Evans appears to have shifted the Seventh Circuit’s jurisprudence in this area toward a
presumption that a vehicle found on premises subject to a search warrant may be searched,
except in special situations. Compare Evans, 92 F.3d at 543–44, with United States v. Percival, 756
F.2d 600, 612 (7th Cir. 1985) (holding “that a search warrant authorizing a search of
particularly described premises may permit the search of vehicles owned or controlled by the
owner of, and found on, the premises”).



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                            Page 8 of 21
    We find that the better of these two approaches is to consider
ownership or control of a vehicle in determining whether it falls within
the scope of a general premises warrant, excluding vehicles of guests or
other visitors from the warrant’s scope. Vehicles of guests and other
visitors to a home are on the property only temporarily, whether it’s to
visit with a friend, to deliver a package, or for some other reason. When a
warrant for a home fails to mention such a transient vehicle, the probable
cause supporting the warrant does not extend to that vehicle which
happens to be temporarily on the property when officers execute the
warrant. See 2 LaFave, Search and Seizure § 4.10(c), at 956–57 (“[T]he
probable cause determination made by the magistrate [regarding the
home to be searched] does not extend to the vehicle the visitor has left
outside.”). However, the probable cause supporting a warrant for a home
would extend to the owner or resident’s vehicle given the close, long-term
connections between the owner/resident, the home, and the vehicle. Thus,
we conclude that a general warrant to search a specifically described
premises like a home includes the ability to search vehicles within the
curtilage that could contain the object of the search and that are “either
actually owned or under the control and dominion of the premises owner
[or resident] or, alternatively, those vehicles which appear, based on
objectively reasonable indicia present at the time of the search, to be so
controlled.” Gottschalk, 915 F.2d at 1461. Accord 2 LaFave, Search and
Seizure § 4.10(c), at 955–56 (“[T]he conclusion that a description of
premises covers vehicles parked thereon should at least be limited to
vehicles under the control (actual or apparent) of the person whose
premises are described.”).3

   This test is easily met here. Neither party challenges the trial court’s
finding that Hardin’s vehicle was in the home’s curtilage when law
enforcement searched it, and the vehicle could contain the drugs and




3Applying this test under normal circumstances, a general warrant to search a home will
cover a vehicle in a garage attached to the home or in the curtilage. See State v. Lucas, 112
N.E.3d 726, 730–31 (Ind. Ct. App. 2018) (upholding this type of search under a slightly
tougher standard).



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                           Page 9 of 21
related items described in the search warrant. And three independent
bases supported the connection between Hardin and his vehicle. First,
police knew, based on their prior observations of Hardin and the vehicle’s
registration, that Hardin owned the vehicle. Second, police knew that the
vehicle was under Hardin’s control by their prior observations of him
driving it combined with the fact that he drove it to his house right before
the search. See United States v. Rivera, 738 F. Supp. 1208, 1218–19 (N.D.
Ind. 1990) (upholding a search of a truck that officers had seen the
defendant drive up the driveway of his house right before the search and
on other, prior occasions). Third, even if the police didn’t know that he
owned and controlled the vehicle, his act of driving it into his own
driveway right before the search represents an objectively reasonable
indicator of his control over the vehicle. As a result, the general premises
warrant permitting law enforcement’s search of Hardin’s home also
supported law enforcement’s search of his vehicle, and this search did not
violate the Fourth Amendment.4


II. The search of Hardin’s vehicle did not violate
    Article 1, Section 11 because it was reasonable
    based on the totality of the circumstances.
  Hardin also argues that the search of his vehicle violated Article 1,
Section 11 of the Indiana Constitution. Although Article 1, Section 11
contains language nearly identical to the Fourth Amendment, we interpret
Article 1, Section 11 independently. See Shotts v. State, 925 N.E.2d 719, 726
(Ind. 2010). In cases involving this provision of our Constitution, the State
must show that the challenged police action was reasonable based on the
totality of the circumstances. Robinson v. State, 5 N.E.3d 362, 368 (Ind.
2014). See also Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting
Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010)) (“‘[W]e focus on the actions of




4Because we find that the officers searched Hardin’s vehicle pursuant to the warrant, we do
not address Hardin’s alternate argument concerning the automobile exception to the Fourth
Amendment warrant requirement.



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                      Page 10 of 21
the police officer,’ and employ a totality-of-the-circumstances test to
evaluate the reasonableness of the officer’s actions.”).

   Important competing interests underlie this totality-of-the-
circumstances test to determine reasonableness. On one hand, Hoosiers
want to limit excessive intrusions by the State into their privacy. See, e.g.,
State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008) (citing State v. Quirk,
842 N.E.2d 334, 339–40 (Ind. 2006)) (“The purpose of this section is to
protect those areas of life that Hoosiers consider private from
unreasonable police activity.”); Membres v. State, 889 N.E.2d 265, 274 (Ind.
2008) (noting that the Article 1, Section 11 test “is designed to deter
random intrusions into the privacy of all citizens”). And so we liberally
construe Article 1, Section 11 to protect individuals. Marshall v. State, 117
N.E.3d 1254, 1261 (Ind. 2019) (quoting Holder v. State, 847 N.E.2d 930, 940
(Ind. 2006)); Grier v. State, 868 N.E.2d 443, 444 (Ind. 2007) (citing State v.
Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002)). On the other hand, Hoosiers
are interested in supporting the State’s ability to provide “safety, security,
and protection from crime.” Holder, 847 N.E.2d at 940 (quoting Gerschoffer,
763 N.E.2d at 966). By employing a totality-of-the-circumstances test, we
aim to strike the proper balance between these competing interests in light
of Article 1, Section 11’s protection from unreasonable searches and
seizures. See id. (“It is because of concerns among citizens about safety,
security, and protection that some intrusions upon privacy are tolerated,
so long as they are reasonably aimed toward those concerns.”).

   We provided a framework for conducting this totality-of-the-
circumstances test for reasonableness in Litchfield v. State, 824 N.E.2d 356,
361 (Ind. 2005). See also Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017)
(noting the comprehensive application of Litchfield to Article 1, Section 11
claims). While acknowledging the possibility of “other relevant
considerations under the circumstances,” we stated that the
reasonableness of a law-enforcement officer’s search or seizure requires
balancing three factors: “1) the degree of concern, suspicion, or knowledge
that a violation has occurred, 2) the degree of intrusion the method of the
search or seizure imposes on the citizen’s ordinary activities, and 3) the
extent of law enforcement needs.” Litchfield, 824 N.E.2d at 361. When
weighing these factors as part of our totality-of-the-circumstances test, we


Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020         Page 11 of 21
consider the full context in which the search or seizure occurs. Garcia v.
State, 47 N.E.3d 1196, 1199 (Ind. 2016). See also Austin, 997 N.E.2d at 1034–
37 (examining the challenged traffic stop and search as part of the longer
chain of interactions between the defendant and law enforcement around
the time of the stop and search); Quirk, 842 N.E.2d at 340–43 (same). So,
we examine, at different points in our analysis, the perspectives of both
the officer and the person subjected to the search or seizure. Garcia, 47
N.E.3d at 1199. And, while the existence of a valid warrant certainly plays
an important role in our review, a warrant does not necessarily make all
law-enforcement action related to the warrant reasonable. Sowers, 724
N.E.2d at 591. See also Watkins, 85 N.E.3d at 601–03 (analyzing whether
law enforcement’s method of executing a search warrant violated Article
1, Section 11). Thus, the Litchfield factors provide guidance and structure
to our analysis of Article 1, Section 11 claims while staying true to
considering the totality of the circumstances.

   With this general guidance in mind, we now address the Litchfield
factors, summarizing guiding principles specific to each and considering
the facts here.


   A. The Degree of Police Concern, Suspicion, or Knowledge


      1.    Specific Guiding Principles

   We begin our analysis by examining the law-enforcement officers’
“degree of concern, suspicion, or knowledge that a violation has
occurred.” Litchfield, 824 N.E.2d at 361. In evaluating the officers’ degree
of suspicion, we consider all “the information available to them at the
time” of the search or seizure. Duran, 930 N.E.2d at 18. This includes the
officers’ knowledge of the existence of a valid search warrant, which
provides strong support for an officer’s concern that a violation has




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020        Page 12 of 21
occurred and that evidence of the violation will be found in the place
identified in the warrant to be searched. Watkins, 85 N.E.3d at 601.5


      2.     Application

   Here, the search of Hardin’s vehicle was supported not only by a
warrant but also by very recent information indicating that evidence of
criminal activity would be in the vehicle.

  The officers had obtained a warrant for Hardin’s home, and Hardin
does not challenge the conclusion that he parked his vehicle within the
curtilage of the home—an area that, at least for Fourth Amendment
purposes, is considered “part of the home itself.” Collins, 138 S. Ct. at 1670
(citation omitted). While the warrant did not specifically identify
Hardin’s vehicle, it provided strong support for the officers’ belief that
Hardin was involved in illegal drug activity in and around his home.
Indeed, the search of the home prior to Hardin’s arrival confirmed this
belief when it revealed items consistent with dealing drugs. And in
conducting surveillance prior to obtaining the warrant, officers observed
Hardin driving his vehicle to and from his home, and they knew that the
vehicle was registered to him.

   In addition to the warrant, the officers also had recent information
indicating that Hardin would have drugs in his vehicle. During the search
of Hardin’s home, the officers learned from police executing a separate
warrant that Hardin had recently picked up a large amount of
methamphetamine from Jerry Hall.

   So, before officers searched Hardin’s vehicle, they knew he was
involved in illegal drug activities in and around his home, they found
drug-related items in the home but a conspicuous absence of the drugs
themselves, and they heard that Hardin had just received a large amount



5The focus of this factor can change slightly depending on the action challenged. For
example, when a defendant challenges the reasonableness of an arrest-warrant execution, we
do not test the arresting officer’s concern that a violation has occurred. Instead, we test the
officer’s belief regarding the location and presence of the defendant. Duran, 930 N.E.2d at 18.



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                        Page 13 of 21
of methamphetamine. Hardin then drove his vehicle up the driveway to
his home. At this point, with all the information the officers knew, they
had an extremely strong basis to believe that they would find drugs in
Hardin’s vehicle. See Tr. Vol. 2, p. 25 (Detective Allen testifying, “[W]hen
we were done searching the house and we hadn’t found [the
methamphetamine], it . . . was my thought that [Hardin] would have that
on his person. Which is common.”).


   B. The Degree of Intrusion


      1.    Specific Guiding Principles
   The second Litchfield factor we consider is “the degree of intrusion the
method of the search or seizure imposes on the citizen’s ordinary
activities.” Litchfield, 824 N.E.2d at 361. In the years since Litchfield, we
have given several points of guidance regarding this factor.

   First, we consider the degree of intrusion from the defendant’s point of
view. Carpenter, 18 N.E.3d at 1002. Thus, a defendant’s consent to the
search or seizure is relevant to determining the degree of intrusion.
Duran, 930 N.E.2d at 18 n.4.

   Second, when examining the degree of intrusion into the citizen’s
ordinary activities, we consider the intrusion into both the citizen’s
physical movements and the citizen’s privacy. We have focused on the
degree of intrusion into the defendant’s physical movements in our traffic-
stop cases. See Austin, 997 N.E.2d at 1035–36 (comparing the facts of that
case with those in Quirk); State v. Hobbs, 933 N.E.2d 1281, 1287 (Ind. 2010).
And in our trash-search cases and others, we have focused on the
intrusion into the defendant’s privacy. See Duran, 930 N.E.2d at 18;




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020         Page 14 of 21
Litchfield, 824 N.E.2d at 363–64. But both types of intrusions—into
physical movement and privacy—are relevant to this Litchfield factor.6

   Third, by focusing on the degree of intrusion caused by the method of
the search or seizure, we’re saying that how officers conduct a search or
seizure matters. For example, we have found a high degree of intrusion
when officers executed a search warrant using a battering ram, flash-bang
grenade, and SWAT team as well as when officers conducted a
warrantless strip search of a misdemeanor arrestee as a matter of course.
Watkins, 85 N.E.3d at 601–02 (search warrant); Garcia, 47 N.E.3d at 1201–02
(citing Edwards v. State, 759 N.E.2d 626, 629 (Ind. 2001)) (strip search). In
examining the way that officers conduct a search or seizure, we continue
to consider the totality of the circumstances and look at “all of the
attendant circumstances”—not a single aspect of the search or seizure in
isolation. Garcia, 47 N.E.3d at 1202. This includes considering whether
officers conduct their search or seizure pursuant to a warrant since a
warrant informs the subject of the search or seizure of the limitations
imposed on the officers’ actions by a detached judicial officer. See
Carpenter, 18 N.E.3d at 1002 (considering the lack of a warrant in
examining the degree of intrusion).7

   Fourth, privacy interests in vehicles do not render them beyond the
reach of reasonable police activity. Hardin relies on our statement that
“Hoosiers regard their automobiles as private and cannot easily abide




6Considering privacy in this factor should not be confused with a test for reasonableness that
focuses exclusively on the defendant’s expectation of privacy, which we’ve expressly rejected.
Litchfield, 824 N.E.2d at 359. Instead, as noted above, “‘we focus on the actions of the police
officer,’ and employ a totality-of-the-circumstances test to evaluate the reasonableness of the
officer’s actions.” Austin, 997 N.E.2d at 1034 (quoting Duran, 930 N.E.2d at 17). Considering
how an officer’s actions intrude on the defendant’s privacy constitutes merely a piece of our
totality-of-the-circumstances test.
7We hasten to reiterate that whether officers have a warrant is only one piece of the puzzle.
Specifically regarding this degree-of-intrusion factor, officers may still greatly intrude on a
person’s ordinary activities when armed with a warrant. See Watkins, 85 N.E.3d at 601–02
(noting a high degree of intrusion despite the existence of a warrant). See also Duran, 930
N.E.2d at 18–19 (noting that the possibility that officers could have obtained a warrant did not
reduce the degree of intrusion).



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                        Page 15 of 21
their uninvited intrusion” to argue for a high degree of intrusion here. See
Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995). But Hardin reads Brown too
broadly in connection with this factor. We agree that Hoosiers regard
vehicles as private areas not subject to random police rummaging. See
Taylor v. State, 842 N.E.2d 327, 334 (Ind. 2006) (“Automobiles are among
the ‘effects’ protected by Article 1, Section 11.”). But that doesn’t mean
that vehicles are beyond the reach of reasonable law-enforcement
activities. We’ve recognized that “[h]ouses and premises of citizens
receive the highest protection,” Carpenter, 18 N.E.3d at 1002 (citation
omitted), yet they are not completely off limits to law enforcement. Read
in the proper context, Brown is more about low police suspicion or concern
and a lack of law-enforcement needs (Litchfield factors one and three) than
an overly excessive intrusion (this Litchfield factor). Brown, 653 N.E.2d at
80 (noting both the delay between when a similar-looking vehicle left a
crime scene and when police found Brown’s vehicle parked on a public
street and searched it as well as the lack of need for an immediate,
warrantless search). See also Myers v. State, 839 N.E.2d 1146, 1153–54 (Ind.
2005) (upholding a warrantless search of a vehicle and distinguishing
Brown based in part on the low degree of suspicion that the vehicle
searched in Brown contained contraband). Thus, while we continue to
recognize that Hoosiers regard their vehicles as private, Brown does not
provide an impenetrable shield for those vehicles.

   With these specific guiding principles in mind, we turn to the facts of
this case to determine the degree of intrusion.


      2.    Application

  Here, considering all the attendant circumstances, the search of
Hardin’s vehicle resulted in a moderate degree of intrusion. We begin by
recognizing the obvious intrusion into Hardin’s privacy by the search of
his vehicle. Myers, 839 N.E.2d at 1154 (“[T]he interior search of the
defendant’s personal car was likely to impose an intrusion . . . .”).
However, the degree of that intrusion was lessened by the way officers
conducted the search. Hardin does not argue that the officers searched his
vehicle in an egregious manner as could’ve been the case if officers had



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020       Page 16 of 21
torn apart his seats or ripped out his dashboard looking for hidden
compartments. Cf. Bell v. State, 818 N.E.2d 481, 486 (Ind. Ct. App. 2004)
(finding a warrantless search unreasonable under Article 1, Section 11
based on the totality of the circumstances, but before Litchfield, when
officers “dismantle[d] the vehicle’s glove box and searched inside the
vehicle’s chassis”). Instead, the search appears to have been no more
extensive than a visual inspection of the interior of the vehicle—
something someone might do to find a credit card or french fry dropped
between a seat and the center console. In addition to moderating the
intrusion into Hardin’s privacy, the officers did not intrude into his
physical movements by searching his vehicle since he was already in
police custody. See Hobbs, 933 N.E.2d at 1287. As a result, the officers’
search of Hardin’s vehicle resulted in a moderate intrusion.8


    C. The Extent of Law-Enforcement Needs


      1.     Specific Guiding Principles
    We round out our analysis under the Litchfield framework by
considering “the extent of law enforcement needs” related to the search or
seizure. Litchfield, 824 N.E.2d at 361. These law-enforcement needs exist
not only when officers conduct investigations of wrongdoing but also
when they provide emergency assistance or act to prevent some imminent
harm. Carpenter, 18 N.E.3d at 1002; Trimble v. State, 842 N.E.2d 798, 804
(Ind. 2006).




8We also note that the officers possessed a warrant to search Hardin’s home, and they
searched his vehicle in connection with that warrant. However, a warrant does little to lessen
the degree of intrusion into a person’s privacy—from that person’s perspective—when it
authorizes a search as a matter of law rather than by its express language. The warrant here
did not expressly reference Hardin’s vehicle or any other vehicles, so we give it little weight
in evaluating the degree of intrusion. But had the warrant expressly included Hardin’s
vehicle—something the officers could have easily requested—we would have given it more
weight, and the admissibility of the evidence from the search may have been clearer.



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020                        Page 17 of 21
   In reviewing the extent of law-enforcement needs, we look to the needs
of the officers to act in a general way. See Marshall, 117 N.E.3d at 1262
(recognizing the “need to enforce traffic-safety laws”); Austin, 997 N.E.2d
at 1036 (recognizing the need to combat drug trafficking).

   But we also look to the needs of the officers to act in the particular way
and at the particular time they did. See Duran, 930 N.E.2d at 19 (finding
“[t]he law enforcement needs were not pressing” to execute an arrest
warrant when the officers had shaky information on the location of the
subject and he was not a flight risk); Myers, 839 N.E.2d at 1154 (upholding
a search of a vehicle based in part on elevated law-enforcement needs
when the vehicle’s owner was not under arrest and might have driven the
vehicle away). In considering the needs of law-enforcement officers in
this more specific way, however, we take a practical approach and do not
require officers to undertake duplicative tasks. See Garcia, 47 N.E.3d at
1203 (quoting Guilmette v. State, 14 N.E.3d 38, 42 (Ind. 2014)) (noting that it
“would be extremely cumbersome to require law enforcement to take the
‘belt-and-suspenders’ approach of applying for an independent warrant
anytime they wish to examine or test a piece of evidence they have
already lawfully seized”).


      2.    Application
  Here, the officers had a moderate need to search Hardin’s vehicle
immediately when he arrived at his home.

  Regarding the broad need to act in this situation, we’ve recognized that
law-enforcement needs in combating drug trafficking—“from individual
operators to large-scale, corporate-like organizations”—are great. Austin,
997 N.E.2d at 1036. The officers here knew of Hardin’s
methamphetamine-dealing activities from their previous surveillance, and
they found evidence of those activities in Hardin’s home. Thus, the
officers had a general need to stop Hardin’s criminal activities.

   Hardin argues, however, that the officers did not have a pressing need
to immediately search his vehicle, so they should have obtained a separate
warrant. This presents a closer question. On one hand, officers may not



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020          Page 18 of 21
have had a pressing need to search the vehicle because Hardin was
secured and unable to drive the vehicle away. Also, given the number of
law-enforcement agencies and officers involved in executing two search
warrants simultaneously, it seems plausible—at least on this record—that
the officers at the scene could have called on additional officers to get a
separate warrant for the vehicle. On the other hand, there were only four
officers present at the scene. They had to secure the people on the
property (Hardin, Hardin’s girlfriend, and Hardin’s girlfriend’s daughter)
and the property itself, assist EMS personnel, and respond to anyone that
might show up later. See Tr. Vol. 2, pp. 124–25 (noting that Hardin’s
mother and her husband arrived at Hardin’s home toward the end of the
search). And one officer injured his rotator cuff while entering Hardin’s
home, which impacted his ability to physically secure people. If no other
officers were able to assist, it may not have been practical to obtain a
separate warrant for the car, increasing the need to immediately search it.

   However close a question the officers’ immediate needs were, we
cannot ignore the other facts of the situation. The officers had a warrant
for the home, and Hardin drove his vehicle into the home’s driveway,
which neither party disputes was part of the curtilage. Requiring the
officers to obtain a separate warrant for Hardin’s vehicle in this situation
would amount to adopting the “cumbersome . . . ‘belt-and-suspenders’
approach” we rejected in Garcia and Guilmette. See Garcia, 47 N.E.3d at
1203 (quoting Guilmette, 14 N.E.3d at 42).

  With the officers’ general need to combat drug trafficking and their
warrant for the home, the officers had at least a moderate need to search
Hardin’s vehicle.


   D. Balancing the Totality of the Circumstances

   Balancing the three Litchfield factors based on the totality of the
circumstances, we find this search reasonable. First, based on the warrant
and developments from other investigations, the officers had an extremely
high degree of concern that Hardin’s vehicle contained illegal drugs. This
factor weighs heavily in the State’s favor. Second, while officers intruded
on Hardin’s privacy by searching his vehicle, they reduced the degree of


Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020        Page 19 of 21
that intrusion by exercising restraint in conducting their search. Their
search also did not intrude on Hardin’s physical movements since he had
already been detained. Thus, while officers moderated the intrusion, they
still intruded into his ordinary activities, and this factor weighs
moderately in Hardin’s favor. Third, given the general need to combat
drug trafficking and their possession of a warrant for Hardin’s home,
officers had at least a moderate need to search Hardin’s vehicle when they
did. This factor weighs moderately in the State’s favor. On balance, the
moderate intrusion here did not outweigh the law-enforcement concerns
and needs, and the search did not violate Article 1, Section 11 of the
Indiana Constitution.


Conclusion
   The Fourth Amendment to the United States Constitution and Article 1,
Section 11 protect against unreasonable searches and seizures. The search
here did not violate the Fourth Amendment because the law-enforcement
officers knew that Hardin owned and controlled the vehicle searched and
objectively reasonable indicia showed the same, so the vehicle in this
situation fell within the scope of the warrant for the home. The search did
not violate Article 1, Section 11 because the high degree of law-
enforcement concern and moderate law-enforcement need outweighed the
moderate intrusion caused by the search, so the search was
constitutionally reasonable based on the totality of the circumstances.
Thus, we affirm the trial court’s admission of the evidence obtained from
the search of the vehicle.


Massa, J., concurs.

Slaughter, J., concurs with separate opinion.

David, J., concurs in part, dissents in part with separate opinion in
which Rush, C.J., joins.




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020       Page 20 of 21
ATTORNEY FOR APPELLANT
Glen E. Koch, II
Boren, Oliver & Coffey, LLP
Martinsville, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Angela Sanchez
Andrew Kobe
Monika Prekopa Talbot
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020   Page 21 of 21
Slaughter, J., concurring.

    I agree that the warrantless search of Hardin’s vehicle did not violate
his rights under the Fourth Amendment to the United States Constitution
or its counterpart in the Indiana Constitution. I join the Court’s opinion
because I agree with its legal analysis, including how it applied our three-
factor Litchfield test to Hardin’s claims under Article 1, Section 11 of our
state constitution. See Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).

    I write separately, however, to highlight a recurring problem with
Litchfield. In the fifteen years since we decided Litchfield, our case reports
have ballooned with examples of ongoing uncertainty among litigants and
lower courts with how to apply its three factors for assessing whether
challenged law-enforcement activity violates our constitution. See, e.g.,
State v. Washington, 898 N.E.2d 1200 (Ind. 2008) (applying Litchfield to
undisputed facts, trial court granted motion to suppress, court of appeals
affirmed 2–1, and Supreme Court reversed trial court 3–2); Webster v. State,
908 N.E.2d 289 (Ind. Ct. App. 2009) (applying Litchfield, trial court denied
motion to suppress, and court of appeals reversed 2–1).

    This longstanding uncertainty is evident here. Although the
underlying facts are undisputed, respected jurists at all levels of our
judiciary have arrived at different conclusions about what Litchfield means
for Hardin. The nine judges who have reviewed his case have looked at
the same facts and applied the same legal standard. Yet we have reached
widely varying conclusions about the legal consequence of these
uncontested facts. I cannot imagine a clearer sign of precedent in need of
reconsideration.

   Under Litchfield, no one can predict how courts will decide a given case
with a given set of facts. The resulting uncertainty is not good for law
enforcement, which needs clear rules so it can conform its conduct to the
law. It is not good for individuals, who need clear guidance on whether
law enforcement has violated their rights. And it is not good for courts,
which must vindicate these rights. In practice, Litchfield amounts to a legal
Rorschach test—an “eye-of-the-beholder” inquiry incompatible with the
rule of law. The problem, I submit, lies not with the disputed
constitutional provision but with the test we have devised for interpreting
it. Like most totality-of-the-circumstances tests that balance multiple
factors, Litchfield is not susceptible to a clear application that produces an
obvious legal outcome.

   Going forward, I hope the opportunity arises to consider a bright-line
rule as a successor test to Litchfield for interpreting Article 1, Section 11—
one consistent with our framers’ constitution and with the text, history,
and structure of this constitutional provision.




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020            Page 2 of 2
David, Justice, concurring in part, dissenting in part.

   I concur in Part I of this opinion and wish to commend the majority’s
well-reasoned Fourth Amendment analysis. I respectfully dissent from
Part II, however, because our state’s constitution provides heightened
protections for Hoosiers and, in my view, the facts of this particular case
weigh differently than the majority’s conclusion. I would find that the
evidence obtained from Hardin’s vehicle must be suppressed because the
search was unreasonable under Article 1, Section 11 of the Indiana
Constitution.

   As the majority correctly recites, even though the language in Article 1,
Section 11 of the Indiana Constitution closely tracks the language of the
Fourth Amendment, our state’s courts interpret the Section separately and
independently from the Fourth Amendment. Robinson v. State, 5 N.E.3d
362, 368 (Ind. 2014). Section 11’s purpose is “to protect from unreasonable
police activity those areas of life that Hoosiers regard as private.” Brown v.
State, 653 N.E.2d 77, 79 (Ind. 1995) (citing Moran v. State, 644 N.E.2d 536,
540 (Ind. 1994)). Our Court has previously determined that the
reasonableness of a search or seizure turns “on a balance of: 1) the degree
of concern, suspicion, or knowledge that a violation has occurred, 2) the
degree of intrusion the method of the search or seizure imposes on the
citizen’s ordinary activities, and 3) the extent of law enforcement needs.”
Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Bearing these factors in
mind, the State must demonstrate that the police conduct at issue was
reasonable under a totality of the circumstances. Robinson, 5 N.E.3d at 368
(quoting State v. Washington, 898 NE.2d 1200, 1205-06 (Ind. 2008), reh’g
denied). Importantly, however, these factors are non-exclusive. See Jacobs v.
State, 76 N.E.3d 846, 852 (Ind. 2017).

  In the present case, I believe a warrant not only could have been
obtained, but that it should have been obtained. Much like the majority, I
agree that this case demands careful application of our precedent in
Litchfield. Respectfully, however, I would balance these factors in a way
similar to our Court of Appeals colleague Judge Mathias and find that the
search of Hardin’s vehicle was unreasonable. See Hardin v. State, 124
N.E.3d 117, 125–26 (Ind. Ct. App. 2019) (Mathias, J., dissenting). Thus, I
would suppress the evidence and remand for a new trial.

   The first factor we analyze under Litchfield is the degree of concern,
suspicion, or knowledge that a violation occurred. 824 N.E.2d at 361.
Admittedly, there was a high degree of concern that Hardin was dealing
in methamphetamine. The record indicates plenty of validly obtained
intelligence that he was discussing buying and selling the drug with
another party. While I agree with the majority’s conclusion that “very
recent information indicat[ed] that evidence of criminal activity would be
in the vehicle” (Slip Op. at 13), I disagree that the search of Hardin’s
vehicle was supported by the warrant obtained in this case because the
vehicle was neither mentioned in the warrant nor was it present at the
onset of the search. Thus, although there was a high degree of concern
that a crime was being committed, there are other factors in play that must
be analyzed.

   Regarding Litchfield’s second factor—the degree of intrusion the
method of a search or seizure imposes on a citizen’s ordinary activities—I
believe the search was highly intrusive for several reasons. Our Court’s
decision in Brown v. State, 653 N.E.2d 77 (Ind. 1995), provides a solid
foundation for analyzing this factor. While the Brown decision predates
the formal totality of the circumstances test announced in Litchfield, the
case nonetheless turns on the reasonableness of police behavior with
respect to “those areas of life that Hoosiers regard as private.” Id. at 79
(citation omitted). In that case, a police officer seized a vehicle that was
thought to have been used in a robbery. After impounding the vehicle, the
officer began looking for evidence of the robbery. During that search,
Brown arrived and was placed under arrest, and the officer discovered
incriminating evidence. Brown challenged the admissibility of the
evidence on Article 1, Section 11 grounds, but his motion to suppress was
denied and he was ultimately convicted. See id. at 79, 81.

   On transfer, our Court held the search of the automobile was
unreasonable under Article 1, Section 11 based on several, fact-specific
circumstances. Id. at 80. Of particular note, our Court observed that “there
was little likelihood that the car would be moved and thus lost to the



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020          Page 2 of 4
police.” Id. Additionally, “[t]here was neither a shortage of time nor an
emergency,” and “the police were not engaged in a community caretaking
function.” Id. Our Court also declared, “With respect to automobiles
generally, it may safely be said that Hoosiers regard their automobiles as
private and cannot easily abide their uninvited intrusion.” Id.

   While I agree with the majority’s conclusion that “Brown does not
provide an impenetrable shield” for Hoosiers’ vehicles (Slip Op. at 16), I
read Brown for the broader proposition that courts should give pause
whenever police engage in searches of a vehicle without a warrant or
under the guise of a valid exception to the warrant requirement. My
concern extends to other vehicles that may have arrived at Hardin’s
residence during the search. Would police have carte blanche access to
any vehicle that comes on to the property during a warrant’s execution?
While certainly the State would say “no” to parcel delivery trucks or
utility maintenance vehicles, the lines start to blur when it comes to a
visiting friend or the occasional person that uses a stranger’s driveway to
turn their vehicle around. Would these individuals be at risk of a sudden
search of their vehicle because they happened to be in the wrong place at
the wrong time?

   For these reasons, I would conclude there was a high degree of
intrusion. True, the police did not use flash-bang grenades, see Watkins v.
State, 85 N.E.3d 597, 601 (Ind. 2017), nor did police rip apart the car to
discover evidence, see Bell v. State, 818 N.E.2d 481, 486 (Ind. Ct. App. 2004).
And though it is also true that Hardin was under arrest at the time of the
search, this is just one consideration when evaluating the level of intrusion
imposed by a particular search. The fact remains that Hardin was secured,
mere feet away as the officer rifled through his truck, and there was
neither a shortage of time nor an emergency. Given Brown’s broad
statement that Hoosiers regard their vehicles as private, I believe these
facts elevate the degree of intrusion.

   Finally, with regard to the extent of law enforcement needs, I return
again to the fact that Hardin had already been detained. It would have
been a minor inconvenience for the police to obtain a separate warrant for
the vehicle. In fact, prior opinions of this Court instruct that it would have



Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020           Page 3 of 4
been “best practice” for the police to take the additional step of obtaining
a warrant. Our opinion in Brown, for example, explained, “Judicial
approval makes it much more likely that the police are doing everything
possible to make certain that the search is appropriate.” 653 N.E.2d at 80.
Stated differently, seeking and securing a warrant based on probable
cause increases the odds police conduct will be viewed as reasonable.
Indeed, the “preference for warrants is based on the belief that a neutral
and detached magistrate is more likely to be a fair evaluator of the
relevant circumstances than the police officer actively involved in
investigating a particular crime.” Id.; see also Lacey v. State, 946 N.E.2d 548,
553 (Ind. 2011) (finding constitutional uncertainty is minimized when
police obtain express judicial authorization).

    Beginning from this proposition—that it is best practice for officers to
obtain a warrant—and ending with the facts that Hardin was no longer a
flight risk and the vehicle was not going anywhere, I would find that the
extent of law enforcement needs in this situation was extremely low.
Though combatting the use and sale of drugs in our communities is
certainly of utmost importance, I cannot agree that, on these facts, this
factor weighs at all in the State’s favor.

  On balance, I believe the search was unreasonable under Article 1,
Section 11 of the Indiana Constitution because, although the degree of
concern or suspicion was relatively high, both the level of intrusion and
needs of law enforcement weigh heavily against the State. I would
suppress the evidence obtained from Hardin’s vehicle and remand this
matter for a new trial.


Rush, C.J., joins.




Indiana Supreme Court | Case No. 20S-CR-418 | June 23, 2020             Page 4 of 4
