      MEMORANDUM DECISION                                                             FILED
                                                                                  Oct 24 2017, 8:50 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                                    CLERK
                                                                                  Indiana Supreme Court
      precedent or cited before any court except for the                             Court of Appeals
                                                                                       and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jeffrey A. Baldwin                                        Curtis T. Hill, Jr.
      Tyler D. Helmond                                          Attorney General of Indiana
      Voyles Zahn & Paul
                                                                James B. Martin
      Indianapolis, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jamie Cole,                                              October 24, 2017

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               58A01-1612-PC-2797
              v.                                               Appeal from the Ohio Circuit Court.
                                                               The Honorable James D.
                                                               Humphrey, Judge.
      State of Indiana,                                        Trial Court Cause No.
      Appellee-Respondent.                                     58C01-1410-PC-2




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Jamie Cole appeals the denial of his petition for post-conviction relief. We

      affirm.



      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017             Page 1 of 12
                                                     Issue
[2]   Cole raises one issue, which we restate as: whether the post-conviction court

      erred in denying his claim of ineffective assistance of counsel.


                               Facts and Procedural History
[3]   On May 23, 2012, an officer employed by the Rising Sun Police Department

      (RSPD) stopped a Jeep in Ohio County. Katherine Cole (Katherine) was

      driving. Her husband, Jamie Cole, and their infant child were in the vehicle.


[4]   Other officers arrived at the scene to assist. They arrested Katherine for driving

      with a suspended license, driving with an expired license plate, and operating a

      vehicle without proof of financial responsibility. Cole also lacked a valid

      driver’s license. The officers impounded the Jeep, and an officer conducted an

      inventory search of its contents, including Katherine’s purse. The purse

      contained fifty (50) grams of marijuana, thirty-three (33) pills that were later

      identified as various controlled substances (all opioid painkillers), a pill grinder,

      a plastic straw, and a set of digital scales.


[5]   The police took Cole into custody after finding the contraband. Detective

      Norman Rimstidt of the RSPD questioned Cole and Katherine separately.

      Katherine claimed the marijuana and pills belonged to her and that “Jamie had

      nothing to do” with those items. Tr. Ex. Vol., Petitioner’s Ex. 1. Similarly,

      Cole denied any involvement with the marijuana and controlled substances,

      claiming Katherine “had a pill problem” and had “snorted pills and smoked

      marijuana in the past.” Id. After questioning Cole and Katherine, the police

      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 2 of 12
      obtained search warrants for an apartment and a unit at a storage facility, as

      well as for Katherine’s phone.


[6]   On May 25, 2012, the State charged Cole with dealing in cocaine or a narcotic

      drug, a Class B felony; dealing in a schedule I, II, or III controlled substance, a

      Class B felony; dealing in a schedule IV controlled substance, a Class C felony;

      dealing in marijuana, a Class D felony; possession of cocaine or a narcotic

      drug, a Class D felony; possession of a controlled substance, a Class D felony;

      possession of marijuana, a Class D felony; possession or use of a legend drug or

      precursor, a Class D felony; possession of paraphernalia, a Class A

      misdemeanor; maintaining a common nuisance, a Class D felony; and neglect

      of a dependent, a Class D felony. The State also filed an habitual offender

      sentencing enhancement.


[7]   Cole and the State negotiated a plea agreement. Pursuant to the agreement,

      Cole pleaded guilty to dealing in a narcotic drug, a Class B felony. Sentencing

      would be left to the discretion of the trial court, and the State promised not to

      recommend a specific sentence. In turn, Cole agreed to waive his right to

      appeal the sentence imposed by the trial court. Finally, the State agreed to

      dismiss all other charges and the habitual offender sentencing enhancement.


[8]   On April 26, 2013, the court sentenced Cole to twenty (20) years. Per the terms

      of his plea agreement, Cole did not appeal his sentence.




      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 3 of 12
[9]    On October 20, 2014, Cole filed a pro se petition for post-conviction relief. He

       later obtained counsel, who amended the petition for post-conviction relief to

       raise a claim of ineffective assistance of counsel. The post-conviction court held

       an evidentiary hearing on October 7, 2016. Cole’s trial counsel did not testify at

       the hearing.


[10]   After the hearing, the post-conviction court denied Cole’s petition, concluding,

       “Petitioner has failed to show that his trial attorney’s performance fell below an

       objective standard of reasonableness, and that this deficient performance

       prejudiced him.” Appellant’s App. Vol. II, p. 126. This appeal followed.


                                    Discussion and Decision
[11]   In post-conviction proceedings, the petitioner bears the burden of establishing

       the grounds for relief by a preponderance of the evidence. Helton v. State, 907

       N.E.2d 1020, 1023 (Ind. 2009). To prevail on appeal from the denial of post-

       conviction relief, the petitioner must show that the evidence as a whole leads

       unerringly and unmistakably to a conclusion opposite that reached by the trial

       court. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). We will not reweigh

       the evidence or judge the credibility of witnesses. Wine v. State, 637 N.E.2d

       1369, 1373 (Ind. Ct. App. 1994), trans. denied. We review the trial court’s

       findings for clear error but do not defer to its conclusions of law. Talley v. State,

       51 N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied.


[12]   Cole argues his trial counsel rendered ineffective assistance by failing to file a

       motion to suppress all evidence discovered through the seizure of the Jeep and

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 4 of 12
       the inventory search, which led to the discovery of contraband in Katherine’s

       purse. He claims that the officers acted unconstitutionally in impounding the

       Jeep and in conducting the search. Cole further claims that if his counsel had

       filed a motion to suppress, it would have been successful, and he would not

       have needed to plead guilty. The State responds that Cole had no grounds to

       object to the inventory search, and in any event the impoundment of the Jeep

       and the inventory search did not infringe upon his rights.


[13]   To establish a claim of ineffective assistance of counsel, a defendant must

       demonstrate that counsel performed deficiently and the deficiency resulted in

       prejudice. Helton, 907 N.E.2d at 1023. Counsel performs deficiently when his

       or her work falls below an objective standard of reasonableness based on

       prevailing professional norms. Polk v. State, 822 N.E.2d 239, 245 (Ind. Ct. App.

       2005), trans. denied. Counsel’s performance is presumed effective, and a

       defendant must offer strong and convincing evidence to overcome this

       presumption. Talley, 51 N.E.3d at 303. As for the test for prejudice, the

       petitioner must show there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.

       Polk, 822 N.E.2d at 245.


[14]   To prevail on an ineffective assistance of counsel claim based upon counsel’s

       failure to file a motion, such as a motion to suppress, the petitioner must

       demonstrate that the motion, if filed, would have been successful. Talley, 51

       N.E.3d at 303. We must consider whether the seizure of the vehicle and the

       search of Katherine’s purse was unconstitutional as to Cole.

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[15]   The Fourth Amendment provides in relevant part, “the right of the people to be

       secure in their persons, houses, papers, and effects, against unreasonable

       searches and seizures, shall not be violated.” Similarly, article I, section 11 of

       the Indiana Constitution provides, in relevant part: “the right of the people to

       be secure in their persons, houses, papers, and effects, against unreasonable

       search or seizure, shall not be violated.”


[16]   A key question is whether Cole could have raised a valid objection to the

       admission of evidence obtained from the search of Katherine’s purse. For

       purposes of the Fourth Amendment, a defendant may not challenge the

       constitutionality of a search unless he or she can demonstrate that he or she had

       a reasonable expectation of privacy in the place to be searched. Sidener v. State,

       55 N.E.3d 380, 384 (Ind. Ct. App. 2016). A defendant aggrieved by an illegal

       search and seizure only through the introduction of prejudicial evidence secured

       by the search of a third person’s premises has not suffered infringement upon

       his or her Fourth Amendment rights. Bradley v. State, 4 N.E.3d 831, 839 (Ind.

       Ct. App. 2014), trans. denied.


[17]   In this case, when Detective Rimstidt questioned Cole, he “denied any

       involvement with the drugs.” Tr. Ex. Vol., Petitioner’s Ex. 1, p. Instead, he

       stated “Katherine had a pill problem and that she had snorted pills and smoked

       marijuana in the past.” Id. Katherine told Detective Rimstidt that Cole had

       nothing to do with the contraband. Detective Rimstidt further testified that he

       had asked Cole if anything in the purse belonged to him, and Cole said no. In

       addition, the officer stated that aside from a prescription medicine bottle

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 6 of 12
       bearing Cole’s name, he did not see anything in the purse that appeared to

       belong to Cole.


[18]   Cole testified during the post-conviction hearing that he lied when he originally

       told the detective that he had no interest in the purse. Cole further testified that

       he regularly stored personal items in Katherine’s purse and sometimes carried it

       with him when Katherine was not around. The post-conviction court found

       Cole’s testimony on this issue to be “unpersuasive.” Appellant’s App. Vol. II,

       p. 126. We may not second-guess the court’s credibility determinations. We

       conclude that Cole has failed to demonstrate that he had a reasonable

       expectation of privacy in Katherine’s purse. See Rawlings v. Kentucky, 448 U.S.

       98, 105, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980) (defendant failed to

       prove he had expectation of privacy in acquaintance’s purse, in which he had

       hidden controlled substances).


[19]   Turning to the Indiana Constitution, as a general rule a challenge to a search

       under article I, section 11 “differs in some respects from standing to assert a

       Fourth Amendment claim.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008).

       The Indiana Constitution provides protections for claimed possessions

       regardless of the defendant’s interest in the place where the possession was

       found. Id. Nevertheless, it remains true that “if the facts fail to establish that

       the alleged illegal search and seizure actually concerned the person, house,

       papers or effects of the defendant,” he or she will not have standing to challenge

       the alleged illegality. Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996).



       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 7 of 12
[20]   In this case, viewing the facts in the light most favorable to the judgment, at the

       time of the police investigation Cole disclaimed any interest in the purse or its

       contents. Later, during the post-conviction hearing he claimed an interest in

       the purse and in a prescription bottle bearing his name that was found in the

       purse, but the post-conviction court did not find Cole’s testimony to be credible.

       We cannot conclude that Cole demonstrated an ownership interest in the purse

       for purposes of article I, section 11, and he thus lacked standing to challenge a

       search of the purse.


[21]   Even if Cole had grounds to raise constitutional challenges to the search and

       seizure of the Jeep and its contents, Cole would have had to demonstrate that

       the impoundment and the subsequent inventory search was inappropriate. The

       Fourth Amendment, as applied to the states through the Fourteenth

       Amendment, generally requires a warrant for a search to be considered

       reasonable. Jackson v. State, 890 N.E.2d 11, 17 (Ind. Ct. App. 2008). One well-

       recognized exception to the warrant requirement is a valid inventory search of a

       vehicle following a valid impoundment. Id. Impoundment is proper when it is

       part of the routine administrative caretaking function of the police or is

       otherwise authorized by statute. Id.


[22]   Indiana Code section 9-18-2-43 (2005) provides, in relevant part:

               a law enforcement officer authorized to enforce motor vehicle
               laws who discovers a vehicle required to be registered under this
               article that does not have the proper certificate of registration or
               license plate:
       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 8 of 12
               (1) shall take the vehicle into the officer’s custody; and
               (2) may cause the vehicle to be taken to and stored in a suitable
               place until:
               (A) the legal owner of the vehicle can be found; or
               (B) the proper certificate of registration and license plates have
               been procured.

[23]   There is no dispute that Katherine and Cole’s vehicle did not have a proper

       license plate. As a result, the officer was required by statute to take the Jeep

       into his custody, and he properly arranged to have it towed. Cole

       acknowledges he did not have a valid license but argues the officer should have

       let him call his roadside assistance program to have the vehicle towed without

       being impounded. Allowing Cole to tow the Jeep without impoundment would

       not necessarily have fulfilled Indiana Code section 9-18-2-43’s goal of ensuring

       the vehicle is not driven again until proper license plates have been procured.

       The officers’ decision to impound the vehicle did not violate the Fourth

       Amendment.


[24]   Next, to be valid under the Fourth Amendment, an inventory search must be

       conducted pursuant to and in conformity with standard police procedures.

       Whitley v. State, 47 N.E.3d 640, 645 (Ind. Ct. App. 2015), trans. denied.

       Inventory searches serve three purposes: (1) protection of private property in

       police custody; (2) protection of police against claims of lost or stolen property;

       and (3) protection of police from possible danger. Id. An inventory search


       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 9 of 12
       must not be a ruse for general rummaging to discover incriminating evidence.

       Id. (quotation omitted).


[25]   In the current case, Cole does not argue that the officers failed to follow

       standard inventory procedures. Rather, he claims the officers should have

       simply given him Katherine’s purse without searching it. As the petitioner,

       Cole bore the burden of proving that the officers failed to comply with

       established police department policies in conducting the search. He failed to

       submit any evidence to the post-conviction court regarding relevant department

       policies on inventory searches and whether the officers complied with them.

       The department’s inventory policy reasonably could have required the officers

       to search the purse. See, e.g., Moore v. State, 637 N.E.2d 816, 820 (Ind. Ct. App.

       1994) (considering a police department’s impoundment policy that required an

       “[i]nventory of all items in the vehicle, which are not regular parts or

       accessories to the car”), trans. denied. Indeed, in this case the RSPD issued a

       receipt for the purse and its contents. Cole has failed to demonstrate that the

       inventory search violated the Fourth Amendment.


[26]   Turning to article I, section 11 of the Indiana Constitution, as a general rule the

       Indiana Supreme Court interprets and applies that provision independently

       from the Fourth Amendment. Whitley, 47 N.E.3d at 648. The purpose of

       article I, section 11 is to protect from unreasonable police activity those areas of

       life that Hoosiers regard as private. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 10 of 12
       2001). In resolving challenges under section 11, courts must consider whether

       the police intrusion was reasonable under the totality of the circumstances. Id.

       We consider: (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. Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017),

       trans. denied.


[27]   In this case, the officers’ decision to impound the Jeep was authorized by

       statute, and they were aware that the driver, Katherine, had committed several

       criminal offenses. Furthermore, the seizure was a minimal, reasonable

       intrusion on Cole’s right of ownership in the Jeep because he was not licensed

       to drive, and without proper license plates the vehicle was not drivable in any

       event. Further, impoundment served important law enforcement needs,

       namely ensuring the Jeep was not driven again without proper plates,

       insurance, and a properly licensed driver.


[28]   The inventory search was also reasonable under the totality of the

       circumstances. Again, the officers were already aware that Katherine had

       committed offenses. Based on the record before us, the intrusion caused by the

       search was minimal because there is no indication that the officers permanently

       seized anything other than the contraband. Finally, the officers needed to

       conduct the search to ensure that the Coles’ personal property would be taken
       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 11 of 12
       care of during impoundment and to protect themselves from possible claims of

       theft. See Whitley, 47 N.E.3d at 649 (impoundment of car in roadway and

       inventory search of vehicle, which led to discovery of contraband, did not

       violate article I, section 11).


[29]   In summary, if Cole’s trial attorney had filed a motion to suppress evidence

       obtained from the inventory search on grounds that the search and seizure

       violated Cole’s rights under the Fourth Amendment and article I, section 11,

       that motion would not have prevailed because Cole did not have an expectation

       of privacy in Katherine’s purse or standing to challenge that portion of the

       inventory search. Furthermore, the impoundment of the vehicle and the search

       of the purse did not infringe upon Cole’s constitutional protections against

       unconstitutional search and seizure. As a result, the post-conviction court did

       not err in rejecting Cole’s claim of ineffective assistance, because prevailing

       professional norms do not require counsel to file a motion that would not have

       been granted.


                                                Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


       Kirsch, J., and Bailey, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017   Page 12 of 12
