                                                         FILED
                                                       Jan 31 2012, 9:19 am


                                                              CLERK
FOR PUBLICATION                                             of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                        GREGORY F. ZOELLER
Indianapolis, Indiana                        Attorney General of Indiana

                                             ANDREW R. FALK
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

CHRISTOPHER STARK,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 49A05-1104-CR-152
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Rebekah Pierson-Treacy, Judge
                          Cause No. 49F19-1010-CM-76319


                                  January 31, 2012


                            OPINION - FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       In this interlocutory appeal, Christopher Stark appeals the denial of his motion to

suppress a handgun. We affirm.

                                           Issue

       Stark raises two issues, which we consolidate and restate as whether the search of

Stark’s coat after his arrest violated the Fourth Amendment of the United States

Constitution or Article 1, Section 11 of the Indiana Constitution.

                                           Facts

       On October 3, 2010, Officer Ronald Shockey, a reserve officer with the Lawrence

Police Department, passed a car parked on Englewood Drive.            The car had four

occupants, was not running, did not have any lights on, and was in a high crime area.

Officer Shockey approached the vehicle and asked the occupants for identification. Stark

was sitting in the right rear passenger seat. Stark appeared to slide something under his

coat, which was on his lap. Then he pulled his hand out from under the coat, and placed

his hand on top of his coat. Stark reached into his pocket to get his identification card

while his other hand remained on top of the coat.           Stark was holding his jacket

“extremely still.” Tr. p. 19.

       Officer Shockey approached Stark’s door, and Stark switched hands to give

Officer Shockey his identification card. Stark’s identification card showed that he was

not yet twenty-one years old. Officer Shockey also saw a plastic cup on the floor near

Stark’s feet, and Stark admitted that the cup contained alcohol. Officer Shockey noticed

that Stark had bloodshot eyes and smelled of alcohol. At that point, Officer Shockey had

                                             2
Stark get out of the vehicle, but Stark slid the jacket off of his lap and left his jacket in the

vehicle. Stark was then arrested for public intoxication and possession of alcohol by a

minor and handcuffed. The other three occupants remained in the car. During the arrest,

Stark and Officer Shockey were next to the vehicle with Stark between Officer Shockey

and the vehicle. Officer Shockey retrieved Stark’s jacket from the vehicle and found a

loaded semi-automatic handgun. Officer Shockey learned that Stark did not have a

firearms permit and that the handgun had been reported as stolen.

       The State charged Stark with carrying a firearm without a license as a Class A

misdemeanor. Stark filed a motion to suppress the handgun, arguing in part that the

search of his jacket was improper under the Fourth Amendment of the United States

Constitution and Article 1, Section 11 of the Indiana Constitution. Stark relied on the

United States Supreme Court’s opinion in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710

(2009). After a hearing, the trial court denied Stark’s motion to suppress, but the trial

court certified the order for interlocutory appeal. This court accepted jurisdiction of the

interlocutory appeal pursuant to Indiana Appellate Rule 14(B)(3).

                                           Analysis

        Stark argues that the search of his coat after his arrest violated the Fourth

Amendment of the United States Constitution and Article 1, Section 11 of the Indiana

Constitution. Our standard of review for the denial of a motion to suppress evidence is

similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.

2003), trans. denied. We determine whether substantial evidence of probative value

exists to support the denial of the motion. Id. We do not reweigh the evidence, and we

                                               3
consider conflicting evidence that is most favorable to the trial court’s ruling.                  Id.

However, the review of a denial of a motion to suppress is different from other

sufficiency matters in that we must also consider uncontested evidence that is favorable

to the defendant. Id. We review de novo a ruling on the constitutionality of a search or

seizure, but we give deference to a trial court’s determination of the facts, which will not

be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.

2008).

                                      I. Fourth Amendment

         Stark contends that the warrantless search of the vehicle violated the Fourth

Amendment to the United States Constitution, which 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.

Unless one of several established exceptions applies, law enforcement officers must

obtain a warrant based on probable cause before executing a search or a seizure. State v.

Hobbs, 933 N.E.2d 1281, 1284 (Ind. 2010).

         One such exception is the search incident to arrest.1 This exception to the warrant

requirement was articulated in Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034,

2040 (1969), where the Court held that a search incident to arrest may include “the


1
  The State also argues that the search was proper under the automobile exception because Officer
Shockey had probable cause to believe the vehicle contained evidence of a crime. However, the State did
not make this argument to the trial court, and we will not consider it on appeal.
                                                  4
arrestee’s person and the area ‘within his immediate control’ – construing that phrase to

mean the area from within which he might gain possession of a weapon or destructible

evidence.” Then, in New York v. Belton, 453 U.S. 454, 455-57, 101 S. Ct. 2860, 2861-

62 (1981), the Court was asked to consider whether the search incident to arrest

exception applied to permit an officer to search a jacket found inside an automobile after

the automobile’s four occupants were arrested. The Court held that when an officer

lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident

of that arrest, search the passenger compartment of the automobile” and any containers

therein. Belton, 453 U.S. at 460, 101 S. Ct. at 2864.

       Recently, in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), the Court

considered the search incident to arrest exception where the defendant had been arrested,

handcuffed, and placed in the back of a patrol car and officers searched his car, finding a

gun and cocaine. There were no passengers in his car, and bystanders had also been

arrested and placed in police cars. The Court noted that the search incident to arrest

exception “derives from interests in officer safety and evidence preservation. . . .” Gant,

556 U.S. at 332, 129 S. Ct. at 1716 (citing in part Chimel, 395 U.S. at 763, 89 S. Ct. at

2040). The Court clarified that “[p]olice may search a vehicle incident to a recent

occupant’s arrest only if the arrestee is within reaching distance of the passenger

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

evidence of the offense of arrest.” Gant, 556 U.S. at 332, 129 S. Ct. at 1723. “When

these justifications are absent, a search of an arrestee’s vehicle will be unreasonable

unless police obtain a warrant or show that another exception to the warrant requirement

                                             5
applies.” Id. at 332, 129 S. Ct. at 1723-24. The Court concluded that the search incident

to arrest exception did not justify the search of the defendant’s vehicle.

       Here, the State contends that Stark was “within reaching distance of the passenger

compartment” and was “relatively unsecured,” but we do not find this argument

convincing. Appellee’s Br. p. 6. At the time of the search, Stark was out of the car and

was handcuffed. However, the circumstances here are different than the circumstances in

Gant. In Gant, the defendant was alone in his car when he was arrested, and the vehicle

was searched after he and some bystanders were handcuffed and placed in police cars.

Here, although Stark was removed from the vehicle and handcuffed, three other

unsecured persons remained in the vehicle.        Indiana courts have not encountered a

situation like this since the United States Supreme Court’s holding in Gant, but other

courts have.

       In United States v. Davis, 569 F.3d 813 (8th Cir. 2009), an officer stopped a

vehicle for speeding and smelled marijuana during the traffic stop. The officer conducted

a pat-down search of the defendant and found marijuana, resulting in the defendant’s

arrest and placement in a patrol car. The officer then removed three passengers from the

car and left them unsecured while he searched the vehicle.           During the search, he

discovered a weapon and opened bottles of alcohol. The defendant sought to suppress

the weapon based on Gant.

       In discussing Gant, the Eighth Circuit noted that “police may validly search an

automobile incident to an “arrest only if the arrestee is within reaching distance of the

passenger compartment at the time of the [sic] of the search or it is reasonable to believe

                                              6
the vehicle contains evidence of the offense of arrest.” Davis, 569 F.3d at 817 (quoting

Gant, 556 U.S. at 332, 129 S. Ct. at 1723). Focusing on the first portion of the Gant test,

the court noted that “[t]he within-reach requirement places the search-incident-to-arrest

exception within the boundaries set by the two underlying rationales for the rule set forth

in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969) - ensuring

officer safety and protecting perishable evidence.” Id. at 816. The court concluded that

the search was permissible because the passengers were “not in secure custody and

outnumbered the two officers at the scene.” Id. at 817. Those facts, the court concluded,

were “textbook examples of ‘[t]he safety and evidentiary justifications underlying

Chimel’s reaching-distance rule . . . .’” Id. (quoting Gant, 556 U.S. at 332, 129 S. Ct. at

1714)).

       Then, in United States v. Goodwin-Bey, 584 F.3d 1117 (8th Cir. 2009), cert.

denied, the Eighth Circuit again considered Gant and the search incident to arrest

exception. There, an officer stopped a vehicle for a traffic violation, and the vehicle was

driven by the defendant and had three other passengers. The officer received a report that

the occupants of the vehicle had earlier displayed a firearm. After a passenger was

arrested for an outstanding warrant, officers conducted pat-down searches of the other

occupants and searched the vehicle. The officers found a gun inside the locked glove

box, and the defendant was arrested on weapons charges.

       He argued that the gun should be suppressed because the search incident to arrest

was impermissible under Gant. The government argued that because the defendant and

the other passengers “were not secured, unlike the bystanders in Gant, officer safety

                                            7
concerns justified the search.” Goodwin-Bey, 584 F.3d at 1119. Relying on Davis, the

Eight Circuit held that the “earlier incident report, along with the number of the vehicle’s

occupants, sufficiently implicated officer safety concerns to justify a search incident to

arrest under Belton.” Id. at 1120.

       Finally, in Commonwealth v. Young, 940 N.E.2d 885 (Mass. App. Ct. 2011),

review denied, the Massachusetts Appeals Court also considered the search incident to

arrest exception after Gant. There, after responding to a report of gunshots, officers

initiated a traffic stop on a vehicle for a traffic violation. They immediately noticed

illegal drugs protruding from the driver’s shirt pocket and arrested him. The officers then

returned to the vehicle and ordered the two passengers, including the defendant, out of

the car. The defendant acted strangely, but he ultimately got out of the car, and the

officers found a handgun in his waistband.

       The defendant argued that the officers “lacked a basis to order him from the

vehicle because the discovery of drugs on [the driver’s] person did not justify a search of

the passengers or of the vehicle itself for drugs.” Young, 940 N.E.2d at 887. Noting that,

at the time the defendant was ordered to exit the vehicle, there was no danger from the

driver because he was already restrained and handcuffed inside a police vehicle, the court

stated: “Had [the driver] been the sole occupant of the vehicle, we agree with the

defendant that under the Fourth Amendment and art. 14 a vehicle search incident to [the

driver’s] arrest would not be justified in order to prevent his accessing a weapon or

destroying evidence.” Id. at 889. However, unlike Gant, who was alone in the vehicle,

the driver in Young was accompanied by two passengers who remained in the vehicle.

                                             8
Also unlike Gant, who was arrested for driving with a suspended license, “an offense for

which police could not expect to find evidence in the passenger compartment of Gant’s

car,” the driver in Young was arrested for a drug offense, an offense for which the police

could reasonably expect to find such evidence in the passenger compartment. Id. “The

same concern regarding the hiding or destruction of evidence that authorizes a vehicle

search incident to arrest when the arrestee is not secured also exists when others with

whom the arrestee is traveling remain unsecured inside the vehicle.” Id. at 890. “Police

action literally has to be ‘now or never’ to preserve evidence of the crime of arrest that

remains inside the vehicle and in proximity to the vehicle’s unsecured occupants.” Id.

The passengers’ “presence in the vehicle rendered them able to destroy or conceal

evidence inside the passenger compartment relevant to the crime for which [the driver]

was arrested . . . .” Id. As a result, the court concluded that the police properly ordered

the defendant to get out of the vehicle so they could conduct a vehicle search incident to

the driver’s arrest.

        Davis, Goodwin-Bey, and Young indicate that, where unrestrained passengers

remain in a vehicle, a search of the vehicle incident to a defendant’s arrest is permissible

to alleviate officer safety concerns and to prevent the destruction of evidence. We find

this analysis persuasive. The Court in Gant emphasized the officer safety basis for the

search incident to arrest exception. Gant, 556 U.S. at 332, 129 S. Ct. at 1716. The three

passengers here were unsecured during Officer Shockey’s arrest of Stark, Stark had

behaved suspiciously regarding his jacket, and they were in a high crime area. An

objective officer considering these facts would have been warranted in conducting a

                                             9
search of the vehicle incident to Stark’s arrest under Gant’s officer safety considerations.2

See United States v. Salamasina, 615 F.3d 925, 930 (8th Cir. 2010) (holding that, where

the defendant’s fiancée repeatedly entered and exited the vehicle, spoke to the defendant

in a foreign language, and attempted to close the garage door, “[a]n objective officer

considering these facts, in conjunction with the fact that officers had just executed an

arrest warrant on [the fiancée] on drug charges, would be warranted in conducting a

search of the vehicle incident to [the defendant’s] arrest under Gant’s officer-safety

consideration”). The search of the vehicle incident to Stark’s arrest was permissible

under Gant, and the trial court properly denied Stark’s motion to suppress.

                                     II. Indiana Constitution

        Stark also claims that the warrantless search violated Article 1, Section 11 of the

Indiana Constitution. The text of this provision of the Indiana Constitution is identical to

the Fourth Amendment, but the two have been given somewhat different interpretations.

Hobbs, 933 N.E.2d at 1287. Conformity of a search to the Indiana Constitution turns on

an evaluation of the “reasonableness” of the conduct of the law enforcement officers, not

on the expectation of privacy commonly associated with Fourth Amendment analysis. Id.

Relevant considerations in evaluating reasonableness of a search under all the

circumstances include the degree to which the search or seizure disrupts the suspect’s

normal activities, and those facts and observations that support the officer’s decision to

initiate the search or seizure.          Id.    Although there may well be other relevant

2
 Stark argues that Officer Shockey was not suspicious of the passengers and only took the coat so that
Stark would have it later. However, based on Salamasina, 615 F.3d at 930, we look to the objective facts,
not Officer Shockey’s subjective thoughts.
                                                   10
considerations under the circumstances, the reasonableness of a search or seizure

generally 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).

      Stark argues that, although a violation of Indiana’s alcohol laws had occurred, the

degree of the officer’s intrusion was “extremely high” because the officer entered the

vehicle and searched Stark’s coat. Appellant’s Br. p. 9. Stark also argues that there was

no evidence to justify the search based on law enforcement needs.

      It is clear that a violation had occurred because Stark was arrested public

intoxication and possession of alcohol by a minor.       Despite Stark’s argument, we

conclude that the degree of intrusion was minimal here. Stark had already been arrested,

and Officer Shockey merely retrieved Stark’s coat from the vehicle. Although Stark

attempts to minimize the law enforcement needs here, officer safety concerns existed.

The three passengers were unsecured during Officer Shockey’s arrest of Stark, Stark had

behaved suspiciously regarding his jacket, and they were in a high crime area. Under

these circumstances, we conclude that Officer Shockey’s search did not violate Article 1,

Section 11 of the Indiana Constitution. The trial court properly denied Stark’s motion to

suppress.

                                       Conclusion

      The search did not violate the Fourth Amendment or the Indiana Constitution.

The trial court properly denied Stark’s motion to suppress. We affirm.

                                            11
      Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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