Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                              Nov 20 2013, 9:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                          GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

HOWARD MOFFITT,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 49A04-1304-CR-186
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable Lisa F. Borges, Judge
                    Cause Nos. 49G04-1203-FB-18417, 49G04-1102-FD-11750



                                     November 20, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Howard Moffitt appeals his convictions for burglary as a class B felony, theft as a

class D felony, and operating never having received a license as a class C misdemeanor.

Moffitt raises one issue, which we revise and restate as whether the trial court abused its

discretion by admitting evidence obtained during a search of a vehicle. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On March 19, 2012, at about 7:30 in the morning, Marcy Gordy was in her garage

and about to leave for work when she heard the sound of glass breaking. She observed a

man exit the home of her neighbor, Terri Cummings, through a broken sliding glass door

while holding a large television and walk across the yard. The man walked to a car, a

gold or tan older four-door vehicle parked next to Gordy’s driveway, opened the trunk,

and placed the television inside. The man then sat down in the driver’s seat of the car

and stayed there for a few minutes. Gordy called 911 from her cell phone and told the

911 operator her neighbor’s address. The car drove away while she was making the 911

call, and Gordy told the operator that the car was proceeding north. Gordy also described

the man to the 911 operator as a young black male.

       Sergeant Larry Jones of the City of Lawrence Police Department received a

dispatch of a burglary in progress, specifically that “a tan four-door car last seen

northbound on Louden Drive and driven by a young black male who stole a TV out of the

residence,” and he arrived in the neighborhood about two minutes after the 911 call.

Transcript at 155. Sergeant Jones was familiar with the layout of the sub-division and

Louden Lane, and he knew that since “the vehicle had went north, rather than south . . . it

was locked in the neighborhood up there. There is no exit out from up there . . . . unless

                                            2
you backtrack.” Id. at 153. As he approached the intersection of Long Lake and High

Timber, he observed a tan colored Malibu being driven by a young, black male, and, as

the car turned on to High Timber, Officer Jones activated his vehicle’s emergency lights.

The car pulled over, and the driver exited the vehicle. After Sergeant Jones ordered the

man back into the car he obtained the man’s identification and ran the information

through dispatch. The man was identified as Howard Moffitt. Dispatch then informed

Sergeant Jones that Moffitt had never received a driver’s license. The license plate came

back registered to Angela Mitchell, who is Moffitt’s mother. At that time, Sergeant Jones

decided to arrest Moffitt for operating while never having received a license and to

impound the car.

      Another officer, Officer Jeremy Kurth, came upon the scene after receiving the

dispatch of “a four-door car going northbound on Louden Drive, young black male,

television taken out of a residence,” and he observed Sergeant Jones and a car consistent

with the dispatch. Id. at 176. Officer Kurth performed a search pursuant to impounding

the vehicle and observed work gloves and what he thought was a screwdriver which

turned out to be a nail pull. Id. He recovered the keys from the driver’s side and tried to

open the trunk, but it would not open, and when asked how to open the trunk, Moffitt told

Officer Kurth that the trunk would not open. Officer Kurth pulled back the corner of the

back passenger seat to access the trunk and shone his flashlight in the trunk, and he

observed a television. Officer Kurth then found a trunk release button on the passenger

side of the vehicle and gained access to the trunk. The television was identified as the

one removed from Cummings’s house. Exhibits at 20.

                                            3
       On March 20, 2012, the State charged Moffitt with Count I, burglary as a class B

felony; Count II, theft as a class D felony; and Count III, operating while never having

received a license as a class C misdemeanor. On July 3, 2012, Moffitt filed a motion to

suppress evidence on the grounds that the evidence of the television in the vehicle’s trunk

was seized pursuant to an illegal search and seizure. On November 21, 2012, the court

denied Moffitt’s motion to suppress. On February 14, 2013, the court held a bench trial

in which evidence consistent with the foregoing was presented, and the court found

Moffitt guilty as charged. On March 22, 2013, the court held a sentencing hearing and

sentenced Moffitt to ten years with four years suspended including two years of probation

on Count I, 545 days on Count II, and 60 days on Count III, to be served concurrently.

                           ISSUE / STANDARD OF REVIEW

       The issue is whether the trial court abused its discretion by admitting evidence

obtained during a search of a vehicle.       Although Moffitt originally challenged the

admission of the evidence through a motion to suppress, he now challenges the admission

of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court

abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80

(Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct.

App. 2005).

       We review the trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied.

We reverse only where the decision is clearly against the logic and effect of the facts and

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if

                                             4
the trial court’s decision was an abuse of discretion, we will not reverse if the admission

constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g

denied, trans. denied. Also, we may affirm a trial court’s decision to admit evidence

seized as a result of the search based on any legal theory supported by the record.

Edwards v. State, 724 N.E.2d 616 (Ind. Ct. App. 2000), trans. denied.

                                      DISCUSSION

       Moffitt argues that the search was illegal under the Fourth Amendment and Article

1, Section 11 of the Indiana Constitution.

       We begin by addressing Moffitt’s Fourth Amendment claims.              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 particularly describing the place to be searched,
       and the persons or things to be seized.

       Thus, the Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures by the government. Patterson v. State, 958 N.E.2d

478, 482 (Ind. Ct. App. 2011). “Searches performed by government officials without

warrants are per se unreasonable under the Fourth Amendment, subject to a ‘few

specifically established and well-delineated exceptions.’” Holder v. State, 847 N.E.2d

930, 935 (Ind. 2006) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507,

514 (1967)). A search without a warrant requires the State to prove an exception to the

warrant requirement applicable at the time of the search. Id.



                                             5
       Moffitt challenges the admission of the television into evidence on the basis that

the search did not pass muster under the inventory search exception, which is the

justification the State sought in order to admit the evidence. As noted above, however,

we may affirm a court’s decision to admit evidence on any legal theory supported by the

record, and here we elect to address the search under the automobile exception to the

Fourth Amendment’s warrant requirement.

       A search falls within the automobile exception when a vehicle is readily mobile

and there is probable cause to believe it contains contraband or evidence of a crime.

Meister v. State, 933 N.E.2d 875, 878-879 (Ind. 2010) (citing Maryland v. Dyson, 527

U.S. 465, 467, 119 S. Ct. 2013 (1999)). Where there is probable cause to search a

vehicle, a search is not unreasonable if it is based on facts that would justify the issuance

of a warrant, even though a warrant has not been obtained. Id. The automobile exception

is based on the inherent mobility and reduced expectation of privacy of an automobile.

Masterson v. State, 843 N.E.2d 1001, 1004 (Ind. Ct. App. 2006), trans. denied; see also

Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005). The United States Supreme Court

has specifically stated that when there is probable cause that a vehicle contains evidence

of a crime, a warrantless search of the vehicle does not violate the Fourth Amendment.

Meister, 933 N.E.2d at 879 (citing California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct.

1982 (1991)); see also Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485

(1996) (“If a car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits police to search the vehicle without

more.”) (citing California v. Carney, 471 U.S. 386, 393, 105 S. Ct. 2066 (1985)). Also,

                                             6
“when police officers have probable cause to believe there is contraband inside an

automobile that has been stopped on the road, the officers may conduct a warrantless

search of the vehicle, even after it has been impounded and is in police custody.”

Cheatham v. State, 819 N.E.2d 71, 75 (Ind. Ct. App. 2004) (quoting Michigan v. Thomas,

458 U.S. 259, 261, 102 S. Ct. 3079, 3080 (1982)).

       Also, “[f]acts necessary to demonstrate the existence of probable cause for a

warrantless search are not materially different from those which would authorize the

issuance of a warrant if presented to a magistrate.” Meister, 933 N.E.2d at 879 (quoting

Masterson, 843 N.E.2d at 1004). Probable cause to issue a search warrant exists where

the facts and circumstances would lead a reasonably prudent person to believe that a

search would uncover evidence of a crime. Esquerdo v. State, 640 N.E.2d 1023, 1029

(Ind. 1994).

       Here, Sergeant Jones received a dispatch of “a tan four-door car last seen

northbound on Louden Drive [sic] and driven by a young black male who stole a TV out

of the residence,” and he arrived in the neighborhood about two minutes thereafter.

Transcript at 155. Sergeant Jones was familiar with the layout of the sub-division and

Louden Lane, and he knew that since “the vehicle had went north, rather than south . . . it

was locked in the neighborhood up there. There is no exit out from up there . . . . unless

you backtrack.” Id. at 153. As he approached the intersection of Long Lake and High

Timber, which is an intersection in the sub-division north of Louden Lane and in which

the only exit to the sub-division was to backtrack and head south and pass Louden Lane,

State’s Exhibit 1, Sergeant Jones observed a tan colored Malibu being driven by a young,

                                            7
black male, and he initiated a stop of the vehicle. Under the circumstances, notably the

proximity in time between the 911 phone call and Sergeant Jones’s encounter with

Moffitt, the fact that Moffitt, who was a young black male, and the car matched the

description provided by Gordy, the neighbor of Cummings, and that Sergeant Jones knew

that Moffitt could not have exited the sub-division when he proceeded north from Louden

Lane, we conclude that probable cause existed for a reasonably prudent person to believe

that a search of the vehicle, and specifically the trunk, would uncover evidence of a

crime. See Johnson v. State, 766 N.E.2d 426, 431-433 (Ind. Ct. App. 2002) (holding that

the police had probable cause to search under the hood of a vehicle where police

responded to a report of shots fired and an officer was informed by witnesses of a

description of one of the shooters, the vehicle, and that a handgun had been stashed under

the hood of the car, and police subsequently stopped a vehicle and driver matching the

description given by the witnesses), trans. denied.

       Moffitt also argues that the search of the vehicle violated Article 1, Section 11 of

the Indiana Constitution, which provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable search or seizure, shall not be violated; and no
       warrant shall issue, but upon probable cause, supported by oath or
       affirmation, and particularly describing the place to be searched, and the
       person or thing to be seized.

“Although this language tracks the Fourth Amendment verbatim, we proceed somewhat

differently when analyzing the language under the Indiana Constitution than when

considering the same language under the Federal Constitution.” Trimble v. State, 842

N.E.2d 798, 803, adhered to on reh’g, 848 N.E.2d 278 (Ind. 2006). “Instead of focusing

                                             8
on the defendant’s reasonable expectation of privacy, we focus on the actions of the

police officer, concluding that the search is legitimate where it is reasonable given the

totality of the circumstances.” Id. “We will consider the following factors in assessing

reasonableness: ‘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.’” Id. (quoting

Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

       We begin by considering “the degree of concern, suspicion, or knowledge that a

violation has occurred.” Litchfield, 824 N.E.2d at 361. As noted above, Sergeant Jones

had just minutes before been dispatched to the sub-division concerning a burglary and

received a description of the perpetrator and the car he had been driving, as well as the

direction in which the perpetrator had fled. The stop took place in the same sub-division.

We conclude that the degree or concern, suspicion, or knowledge that a violation had

occurred is high. Next, regarding the degree of intrusion, Moffitt does not challenge in

his brief the validity of the stop, and he concedes that the officers correctly determined

that he was driving after having never received a driver’s license. Upon stopping Moffitt,

the officers suspected him to be the person they were dispatched to apprehend based on

the description given by Gordy. Also in order to access the trunk, although Officer Kurth

initially pulled back the corner of the back passenger seat and shone his flashlight in the

trunk and observed a television, he ultimately gained access to the trunk using a trunk

release button found on the passenger side of the vehicle. Under these circumstances,



                                            9
this degree of intrusion was not high. Finally, the extent of law enforcement needs was

strong given the circumstances leading to Sergeant Jones’s stop of Moffitt.

      Under the totality of the circumstances, we conclude that the search of Moffitt’s

vehicle was reasonable and did not violate his rights under Article 1, Section 11 of the

Indiana Constitution.

                                     CONCLUSION

      For the foregoing reasons, we affirm Moffitt’s convictions for burglary, theft, and

operating while never having received a license.

      Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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