MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Nov 09 2017, 7:58 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Doyle Burton,                                           November 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1702-CR-220
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Certo, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        49G12-1610-CM-40891



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017         Page 1 of 8
                                                 Case Summary
[1]   Doyle Burton brings this interlocutory appeal of the trial court’s denial of his

      motion to suppress evidence. We affirm.


                                                         Issue
[2]   The sole issue before us is whether the trial court erred in denying Burton’s

      motion to suppress evidence obtained pursuant to a warrantless vehicle search.


                                                         Facts
[3]   On October 17, 2016, the State charged Burton with Class A misdemeanor

      operating a vehicle while intoxicated, Class B misdemeanor operating a vehicle

      while intoxicated endangering a person, and Class C misdemeanor operating a

      motor vehicle without ever receiving a license. On November 28, 2016, Burton

      moved to suppress evidence obtained pursuant to a warrantless search of his

      vehicle. The trial court heard evidence and argument on December 14, 2016.

      The parties stipulated to the following underlying facts: 1


               On October 16, 2016 at about 9:32 pm, Mark Ford was
               facing westbound in the left turn lane at High School
               Road sitting at the red left turn arrow, when he was rear-ended
               by a maroon 2000 Toyota minivan (bearing Indiana
               2017 plate WEG307). Ford got out of his CRV and spoke
               with the occupants of the minivan. They accused him of



      1
        The transcript reveals that on the day of the suppression hearing, the State’s law enforcement witness
      notified counsel for the State that he was ill and unable to testify. The State proposed “bifurcat[ing] and
      bring[ing] him in.” Tr. pp. 13-14. The trial court indicated a willingness to proceed as necessary. See Tr. p.
      16 (“If there are other facts we ought to come back and discuss, let’s do that.”). In lieu of the officer’s
      testimony, the parties stipulated to the admission of the first two paragraphs of the probable cause affidavit.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017               Page 2 of 8
              being drunk and the driver pulled away as Ford protested
              and told him he needed to stay. The driver of the Toyota
              which had heavy front end damage, who Ford described
              as a black male wearing a maroon sweater, drove around
              Ford’s CRV and turned south on High School Road and
              then turned into the apartment complex south of
              Rockville Road on the east side of the street.
              Officers Robert Ferguson and James Beliles of the
              Indianapolis Metropolitan Police Department responded
              to the crash and spoke with Ford, who told them what
              had happened. They went to the apartment complex and
              found the damaged minivan with heavy front end damage
              leaking fluids parked in front [sic] 6016 Cheshire. Ferguson
              found the registration in the glove box and found mail addressed
              to 6014 Cheshire Apartment D. Ferguson and
              Beliles went to that location and knocked on the door. A
              black male answered the door and Ferguson asked him if
              he had been involved in a crash. Before the male
              answered the question, Doyle Burton B/M/46, 4/29/70,
              came around the corner and told Ferguson that he was
              the driver of the van. Ferguson saw that Burton had a
              burgundy sweater. Ferguson noticed Burton’s eyes were
              red and glassy, his speech was slurred and he had an odor
              of an alcoholic beverage on his breath. He advised Burton
              of his Miranda warning and Burton admitted to drinking.
              Ford was brought to the parking lot of the Bob Evans and
              positively identified Burton as the driver of the van that
              struck him. [Affidavit for Probable Cause, p. 24].

[4]   The trial court heard the parties’ arguments and denied Burton’s motion to

      suppress, stating:


              . . . [I]t is no surprise to me that an officer investigating a hit and
              run accident would pursue the kind of investigation they pursued
              here. It does seem to me that Indiana law requires that a person
              keep his registration with his vehicle, and the logical place to
              look for it would be the glove box. That said, if there was a gun
              in the glove box, if there was contraband in the glove box, it
              would be perfectly reasonable to suppress that kind of seized
              item. But, consulting a registration, which is required to be in a
              vehicle, seems proper to me, even if it’s found in the glove box. I

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 3 of 8
              haven’t heard any testimony that the glove box was locked or
              had to be broken or that the vehicle had to be broken into. We
              can talk about those things, too, because these inquiries are
              always fact sensitive. But, at this time I believe it’s proper to
              deny the motion to suppress, because I think this is well within
              the exception for vehicles.

      Tr. pp. 15-16. Burton now appeals.

                                                  Analysis
[5]   Burton argues that the trial court erred in denying his motion to suppress

      evidence. In reviewing a trial court’s denial of a motion to suppress evidence,

      we determine whether the record discloses “substantial evidence of probative

      value that supports the trial court’s decision.” State v. Renzulli, 958 N.E.2d

      1143, 1146 (Ind. 2011) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)).

      We do not reweigh the evidence, but consider conflicting evidence most

      favorably to the trial court’s ruling. Id. (quoting Quirk, 842 N.E.2d at 340).

      “[T]he ultimate determination of the constitutionality of a search or seizure is a

      question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,

      1001 (Ind. 2014). We may affirm the denial of a motion to suppress on any

      basis apparent in the record. Faris v. State, 901 N.E.2d 1123, 1126 (Ind. Ct.

      App. 2009), trans. denied.


[6]   We initially note that Burton has failed to present argument on appeal as to the

      reasonableness of the search under the Indiana Constitution. His brief contains

      no reference to the Indiana Constitution, much less the “separate legal analysis”

      that is required to argue in admissibility under our state constitution. See State

      v. Friedel, 714 N.E.2d 1231, 1243 (Ind. Ct. App. 1999). Therefore, he has

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 4 of 8
      waived any argument regarding Article 1, Section 11 of the Indiana

      Constitution. See id. (holding party “failed to preserve any argument it might

      have under the Indiana Constitution”).


[7]   The centerpiece of federal search and seizure jurisprudence is the warrant

      requirement of the Fourth Amendment, which provides as follows:


              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.


      U.S. CONST. amend. IV. A warrantless search or seizure is per se

      unreasonable, and the State bears the burden to show that one of the well-

      delineated exceptions to the warrant requirement applies. Osborne v. State, 63

      N.E.3d 329, 331 (Ind. 2016).


[8]   The automobile exception is a well-recognized exception to the Fourth

      Amendment’s warrant requirement. See Myers v. State, 839 N.E.2d 1146, 1150

      (Ind. 2005). The exception is grounded in two notions: (1) a vehicle is readily

      moved and, therefore, evidence therein may disappear while a warrant is being

      obtained; and (2) citizens have lower expectations of privacy in their vehicles

      than in their homes. State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind. 2010) (citing

      California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066, 2069 (1985)). “One

      reason for this diminished expectation of privacy in a car and its contents is that


      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 5 of 8
       cars travel along public highways and are subject to pervasive government

       regulation.” Hobbs, 933 N.E.2d at 1285; see Carney, 471 U.S. at 392-93.


[9]    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 v. State, 933

       N.E.2d 875, 879 (Ind. 2010) (citing California v. Acevedo, 500 U.S. 565, 569, 111

       S. Ct. 1982, 1986 (1991)); see also Pennsylvania v. Labron, 518 U.S. 938, 940, 116

       S. Ct. 2485, 2487 (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.”); see Justice v. State, 765 N.E.2d 161, 166 (Ind.

       Ct. App. 2002), clarified on reh’g, 767 N.E.2d 995, 996 (Ind. Ct. App. 2002)

       (holding warrantless seizure of items from an automobile is only justified where

       officer has probable cause to believe that property to be seized is connected to

       criminal activity”). Probable cause alone cannot justify a warrantless search or

       seizure absent exigent circumstances; however, exigent circumstances may be

       presumed from the inherent mobility of automobiles. Id. at 996; see Johnson v.

       State, 766 N.E.2d 426, 432 (Ind. Ct. App. 2002) (holding that Fourth

       Amendment does not require a separate exigency requirement for the

       automobile exception).


[10]   We initially note that sufficient probable cause existed for the police to believe

       that evidence of a crime—namely, the unidentified driver’s involvement in a hit

       and run as well as the driver’s vehicle registration—would be found in Burton’s

       vehicle.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 6 of 8
[11]   Burton argues that the automobile exception does not apply because his vehicle

       was not readily mobile. Although it is undisputed that the vehicle sustained

       significant damage in the collision, the fact remains that the vehicle was

       operable immediately after the hit-and-run, as Burton fled the scene under its

       power. See Hobbs, 933 N.E.2d at 1286 (holding that under automobile

       exception to warrant requirement, an operational vehicle is inherently mobile

       whether driver is behind the wheel or has ready access).


[12]   Next, Burton contends that the automobile exception is inapplicable because

       his vehicle was parked in a residential apartment parking lot “in front of or at

       the very least near to Mr. Burton’s apartment.” Tr. p. 7. Specifically, he

       testified that the vehicle was parked in front of his apartment in the parking lot

       of the multi-family apartment complex in which he lived. Tr. pp. 6, 7.


[13]   Burton’s vehicle was parked in the parking area of a multi-family apartment

       complex. Unlike a private driveway, such a parking area is akin to the parking

       area of a restaurant. See Hobbs, 933 N.E.2d at 1286 (finding police search of

       defendant’s readily mobile vehicle as located in restaurant’s parking area was

       subject to automobile exception where police officers had probable cause to

       believe vehicle contained evidence of crime); see also United States v. Sparks, 750

       F. Supp. 2d 384, 389 (D. Mass. 2010) (finding parking area that was “available

       for shared benefit of multi-family residence” was not part of sacrosanct

       curtilage).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 7 of 8
[14]   For the foregoing reasons, the automobile exception to the search warrant

       requirement was applicable, and the trial court’s denial of Burton’s motion to

       suppress evidence seized from his vehicle was proper under the Fourth

       Amendment.


                                                Conclusion
[15]   We uphold the trial court’s denial of Burton’s motion to suppress evidence. We

       affirm.


[16]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-220 | November 9, 2017   Page 8 of 8
