MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Dec 20 2016, 6:14 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John M. Smith,                                          December 20, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A04-1601-CR-148
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Sally McLaughlin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        15D02-1402-FA-6



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 1 of 23
[1]   John M. Smith appeals his conviction and sentence for conspiracy to deal

      heroin as a class A felony. Smith raises two issues which we revise and restate

      as:


             I.   Whether the court abused its discretion in admitting evidence
                  of a search; and

            II.   Whether Smith’s sentence is inappropriate in light of the nature
                  of the offense and his character.

      We affirm.

                                      Facts and Procedural History

[2]   On June 22, 2012, Indiana State Police Trooper James Wells was parked on a

      median cross-over on I-74 when, just before 11:00 a.m., he observed a car

      tailgating a minivan traveling east on I-74. As the car passed, Trooper Wells

      observed that the posture of the driver, later identified as Destanee Gaines,

      looked “a little unusual” as she was leaning forward off the seat with her mouth

      locked open and her eyes wide open “like she was kind of in a state of panic.”

      Transcript at 141. Trooper Wells then initiated a stop for the traffic violation.


[3]   Trooper Wells approached the passenger side door, greeted Gaines, and asked

      for her license. He observed that Gaines was “very, very nervous,” that she was

      breathing heavily, and that her hands were shaking uncontrollably when she

      handed him her license. Id. at 142. He asked her who owned the car, and she

      said that it was a rental. Gaines handed him the rental agreement and had a

      “blank look on her face like she was in shock and said it’s right there at the




      Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 2 of 23
      bottom.” Id. at 143. Trooper Wells asked what was the name on the

      agreement, and Gaines said John Smith.


[4]   He then asked Gaines to come back to his vehicle with him while he checked

      her license and registration, and Gaines sat in the front seat of his vehicle. He

      asked her about her trip, and she said she was coming from Chicago and was

      on her way home to Cincinnati. He asked her when she went to Chicago, and

      she started to say “we went up there,” but then stopped midsentence and said,

      “I went up there last week,” which was unusual. Id. at 144. He noticed that

      Gaines was struggling for answers to very simple questions and changing them

      midsentence and her nervousness was “just getting worse and worse.” Id. at

      145. In addition to her heavy breathing and shaking hands, Trooper Wells,

      who had received training on the “adrenalin dump” and the physical changes it

      causes, as well as observing nervousness, could see “her heart beating in her

      carotid.” Id. at 145, 183.


[5]   He asked her why she was so nervous, and she said that she was terrified of the

      highway. He did not believe her and asked her if she was traveling with

      anything illegal, to which she responded: “No sir.” Defendant’s Exhibit B1 at

      6:15-6:20. He asked if she had any drugs with her, and Gaines answered that

      she probably had a joint in her purse. Trooper Wells said: “[Y]ou know, this

      nervousness seems like more than that, is there anything else in the car[?]”

      Transcript at 189. Gaines looked away from him, stared at the car, and just

      shook her head. He then placed her in handcuffs and searched the car.



      Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 3 of 23
[6]   Trooper Wells first checked the trunk and noticed that there was no luggage or

      overnight bags or anything consistent with traveling for a week. He then found

      Gaines’s purse and a small bag containing marijuana in the side pocket of a

      wallet on the passenger side of the seat. He continued searching the car and

      eventually observed that the mounting hardware, the screws, and the bolts in

      the door that hold the plastic shell to the metal shell were all missing paint,

      indicating they had been “tooled up.” Transcript at 150. He rolled the window

      down, but the window stopped about an inch or two before going all the way

      down because it hit something. His training indicated that there was something

      at the bottom of the door preventing the window from going all the way down.

      He then spread the weather stripping open, shined his light into the door, and

      observed a package wrapped in green plastic and another package wrapped in a

      t-shirt.


[7]   Trooper Wells then went to talk to Gaines about the contraband in the door,

      and she denied knowledge of it. He eventually took the door apart and

      retrieved three packages containing approximately three kilograms of heroin.


[8]   Trooper Wells transported Gaines to the police department, and she eventually

      agreed to cooperate and call Aldon Webb. Gaines told Webb she was stopped

      by the police and arrested for possession of marijuana and her vehicle was

      impounded, that the rental company was going to retrieve it later the same

      evening, and she requested that Webb come and recover her personal

      belongings from the rental car.



      Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 4 of 23
[9]    Numerous officers went to the towing business, and Detective Tim Wuestefeld

       posed as a tow truck driver. Webb later arrived at the towing business and

       spoke with Detective Wuestefeld, who told Webb that he could have access to

       the vehicle to retrieve Gaines’s personal belongings. Other officers

       apprehended Webb, and Webb admitted that he was there to retrieve the

       heroin, that his supplier was Smith, and that Smith advised him to obtain

       certain tools to release the screw on the door.


[10]   On February 6, 2014, the State charged Smith with conspiracy to commit

       dealing in heroin as a class A felony. On October 19, 2015, Smith filed a

       motion to dismiss and to suppress evidence. In his memorandum in support of

       his motion, he argued that the evidence was obtained improperly under the

       United States Constitution.


[11]   After some discussion concerning the motion at the beginning of the trial on

       October 21, 2015, the court said the State would proceed with calling the first

       witness and that, if the court made the decision to suppress the evidence, then

       the case would be dismissed.


[12]   Trooper Wells testified that he attended the Law Enforcement Academy in

       2001, was assigned to the Versailles Post from 2001 to 2012, and received

       extensive training in criminal interdiction, human trafficking, and smuggling,

       had been doing interdiction enforcement since 2008, was assigned as a DEA

       task force officer, and had made 15,000 traffic stops since 2008. He testified

       that he received training in concealment methods and in noticing things that are


       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 5 of 23
       inconsistent with the normal innocent motoring public, and that Gaines’s level

       of nervousness was much higher than someone who would be pulled over for

       speeding. He also testified that rental cars are usually brand new and that it is

       rare to see any type of mechanical defect on a rental car. On cross-

       examination, Trooper Wells testified that when someone gives up a small

       amount of marijuana, it is for a reason, and that they call it a “drop dope,”

       which means “give up a small amount, go to jail for a misdemeanor and keep

       something bigger hidden.” Id. at 193.


[13]   After the presentation of evidence, Smith’s counsel presented argument

       regarding the motion to suppress and asked that the stop and resulting evidence

       be suppressed. The court found there was probable cause for the stop and noted

       Trooper Wells’s training and observations about Gaines, and the car and her

       statement about marijuana, and concluded that Trooper Wells had probable

       cause to search the car. The court also found that the evidence need not be

       suppressed under the Indiana Constitution.


[14]   Smith’s counsel then moved for dismissal or acquittal and argued that there was

       no evidence of a conspiracy, and the court denied the motion. The jury found

       Smith guilty as charged.


[15]   At the sentencing hearing, the court admitted the Government’s Sentencing

       Memorandum from a federal case in the United States District Court for the

       Northern District of Illinois, in which the government alleged that Smith sold

       heroin to a confidential source on four occasions for a total of 193 grams of


       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 6 of 23
       heroin in 2010 in exchange for $16,125. The government also referred to the

       arrest in the present case and evidence of narcotics trafficking subsequent to the

       offenses in the federal case. Smith spoke at the hearing and mentioned his

       family and taking youths off the street and signing them as artists to his record

       label. Smith also stated that he was not going to say that what he did was right

       but that he was not involved in dealing anymore and that “[i]t’s not the drug

       that’s killing; it’s the cut that the street cutters put on this drug and here it is a

       street dealer he’s seven (7) years but he’s asking the Court to give me fifty

       (50).” 1 Id. at 533.


[16]   The court observed that Smith was serving a sentence of 216 months on a

       conviction in the United States District Court for the Northern District of

       Illinois for four counts of distributing heroin for offenses prior to November 23,

       2010. It noted that Smith was not without resources to earn an income legally

       and that he actively participated in the sale of drugs solely for profit. The court

       also stated that Smith’s comments that it is the street dealer who is killing the

       individuals using heroin illustrates his character, and that, if not intercepted by

       police, he would have distributed three kilograms of pure heroin for profit to be

       cut and distributed by street dealers. The court found Smith’s character was

       such that long term incarceration was appropriate to protect community safety.

       The court found the excessive amount of heroin, Smith’s criminal history, and




       1
         Webb testified that he received a sentence of twenty years with five years suspended and that if he had good
       time credit he would serve seven and one-half years.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016          Page 7 of 23
       his inability to respond affirmatively to prior rehabilitative programs, probation,

       or incarceration to be aggravating factors, and that these aggravating factors far

       outweighed any mitigating circumstances including the effect incarceration

       would have on his children. The court found that “although the instant case

       may have been utilized as an argument by the Prosecutor in Federal Court to

       show significant ongoing escalating drug trafficking and may have impacted

       [the] length of sentence in Federal Court; the instant offense occurred after and

       was separate from the counts leading to the Federal conviction and were not

       charged in Federal Court.” Id. at 544. The court sentenced Smith to fifty years

       to be served consecutive to the federal sentence.


                                                   Discussion

                                                         I.


[17]   The first issue is whether the court abused its discretion in admitting evidence of

       the search. The admission and exclusion of evidence falls within the sound

       discretion of the trial court, and we review the admission of evidence only for

       an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An

       abuse of discretion occurs “where the decision is clearly against the logic and

       effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.

       2001). Even if 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. “[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).
       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 8 of 23
[18]   Smith raises arguments under: (A) the Fourth Amendment of the United States

       Constitution; and (B) Article 1, Section 11 of the Indiana Constitution.


       A. Fourth Amendment


[19]   Smith argues that Gaines’s admission to having marijuana in her purse gave

       Trooper Wells a reasonable belief that he would find contraband in her purse,

       not anywhere in the rental vehicle. He argues that the problem with the trial

       court’s analysis is that discovery of the marijuana along with Gaines’s

       nervousness would not have caused a reasonable person to believe tearing apart

       the driver’s door of a rental car would yield bricks of heroin. He also asserts

       that Trooper Wells did not focus on the door until the search was well under

       way. The State argues that Trooper Wells had probable cause to search the car

       based upon Gaines’s admission to possessing marijuana in her purse and that

       Trooper Wells’s observations of Gaines’s nervousness added to the probable

       cause.


[20]   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


       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 9 of 23
       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.


[21]   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 grounded in two notions: “1) a

       vehicle is readily moved and therefore the evidence 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 (1985)).

       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, 2487 (1996) (“If

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 10 of 23
       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 Carney, 471 U.S. at 393, 105 S. Ct. 2066)).


[22]   The Indiana Supreme Court has held:


               In light of the Supreme Court’s recent emphatic statement in
               [Maryland v.] Dyson that the automobile exception “does not have
               a separate exigency requirement,” 527 U.S. [465,] 467, 119 S. Ct.
               [2013,] 2014 [(1999)], we conclude that this exception to the
               warrant requirement under the Fourth Amendment does not
               require any additional consideration of the likelihood, under the
               circumstances, of a vehicle being driven away. Rather, we
               understand the “ready mobility” requirement of the automobile
               exception to mean that all operational, or potentially operational,
               motor vehicles are inherently mobile, and thus a vehicle that is
               temporarily in police control or otherwise confined is generally
               considered to be readily mobile and subject to the automobile
               exception to the warrant requirement if probable cause is present.
               This broad understanding of “readily mobile” is also consistent
               with the recognition that, for Fourth Amendment purposes, an
               individual is deemed to have a reduced expectation of privacy in
               an automobile. [Pennsylvania v.] Labron, 518 U.S. [938,] 940, 116
               S. Ct. [2485,] 2487 [(1996)]; [California v.] Carney, 471 U.S. [386,]
               393, 105 S. Ct. [2066,] 2070 [(1985)].


       Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005). See also Hobbs, 933 N.E.2d at

       1286 (holding that the “automobile exception does not require that there be an

       imminent possibility the vehicle may be driven away”).


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

       warrantless search are not materially different from those which would


       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 11 of 23
       authorize the issuance of a warrant if presented to a magistrate.” Meister, 933

       N.E.2d at 879 (quoting Masterson v. State, 843 N.E.2d 1001, 1004 (Ind. Ct. App.

       2006), trans. denied). 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).


[24]   In United States v. Ross, the United States Supreme Court considered the extent

       to which police officers who have legitimately stopped an automobile and who

       have probable cause to believe that contraband is concealed somewhere within

       it may conduct a probing search of compartments and containers within the

       vehicle whose contents are not in plain view. 456 U.S. 798, 800, 102 S. Ct.

       2157, 2160 (1982). In that case, an informant told the police that an individual

       was selling narcotics kept in the trunk. Id. at 800, 102 S. Ct. at 2160. The

       police stopped the vehicle, arrested and handcuffed the driver, Ross, took

       Ross’s keys, opened the trunk, found a closed brown paper bag, opened the bag,

       and found a number of glassine bags containing a white powder. Id.


[25]   On appeal, the Court held that the police “may conduct a search of the vehicle

       that is as thorough as a magistrate could authorize in a warrant ‘particularly

       describing the place to be searched.’” Id. (quoting U.S. CONST. amend. IV).

       The Court noted that “[d]uring virtually the entire history of our country –

       whether contraband was transported in a horse-drawn carriage, a 1921 roadster,

       or a modern automobile – it has been assumed that a lawful search of a vehicle



       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 12 of 23
would include a search of any container that might conceal the object of the

search.” Id. at 820 n.26, 102 S. Ct. at 2170 n.26. The Court also held:


        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. Thus, a warrant that
        authorizes an officer to search a home for illegal weapons also
        provides authority to open closets, chests, drawers, and
        containers in which the weapon might be found. A warrant to
        open a footlocker to search for marihuana would also authorize
        the opening of packages found inside. A warrant to search a vehicle
        would support a search of every part of the vehicle that might contain the
        object of the search. When a legitimate search is under way, and
        when its purpose and its limits have been precisely defined, nice
        distinctions between closets, drawers, and containers, in the case
        of a home, or between glove compartments, upholstered seats, trunks,
        and wrapped packages, in the case of a vehicle, must give way to the
        interest in the prompt and efficient completion of the task at hand.


Id. at 820-821, 102 S. Ct. at 2170-2171 (emphases added and footnote omitted).

The Court noted:

        The practical considerations that justify a warrantless search of
        an automobile continue to apply until the entire search of the
        automobile and its contents has been completed. Arguably, the
        entire vehicle itself (including its upholstery) could be searched
        without a warrant, with all wrapped articles and containers found
        during that search then taken to a magistrate. But prohibiting
        police from opening immediately a container in which the object
        of the search is most likely to be found and instead forcing them
        first to comb the entire vehicle would actually exacerbate the
        intrusion on privacy interests. Moreover, until the container
        itself was opened the police could never be certain that the
        contraband was not secreted in a yet undiscovered portion of the
Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 13 of 23
        vehicle; thus in every case in which a container was found, the
        vehicle would need to be secured while a warrant was obtained.
        Such a requirement would be directly inconsistent with the
        rationale supporting the decisions in Carroll [v. United States, 267
        U.S. 132, 45 S. Ct. 280 (1925)] and Chambers [v. Maroney, 399
        U.S. 42, 90 S. Ct. 1975 (1970), reh’g denied].


Id. at 821 n.28, 102 S. Ct. at 2171 n.28. The Court went on to hold:


        In the same manner, an individual’s expectation of privacy in a
        vehicle and its contents may not survive if probable cause is given
        to believe that the vehicle is transporting contraband. Certainly
        the privacy interests in a car’s trunk or glove compartment may
        be no less than those in a movable container. An individual
        undoubtedly has a significant interest that the upholstery of his
        automobile will not be ripped or a hidden compartment within it
        opened. These interests must yield to the authority of a search,
        however, which – in light of Carroll – does not itself require the
        prior approval of a magistrate. The scope of a warrantless search
        based on probable cause is no narrower – and no broader – than
        the scope of a search authorized by a warrant supported by
        probable cause. Only the prior approval of the magistrate is
        waived; the search otherwise is as the magistrate could authorize.


        The scope of a warrantless search of an automobile thus is not
        defined by the nature of the container in which the contraband is
        secreted. Rather, it is defined by the object of the search and the
        places in which there is probable cause to believe that it may be
        found. Just as probable cause to believe that a stolen lawnmower
        may be found in a garage will not support a warrant to search an
        upstairs bedroom, probable cause to believe that undocumented
        aliens are being transported in a van will not justify a warrantless
        search of a suitcase. Probable cause to believe that a container
        placed in the trunk of a taxi contains contraband or evidence
        does not justify a search of the entire cab.


Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 14 of 23
                                                    *****


               If probable cause justifies the search of a lawfully stopped
               vehicle, it justifies the search of every part of the vehicle and its
               contents that may conceal the object of the search.


       Id. at 823-825, 102 S. Ct. at 2172-2173 (footnote omitted).


[26]   With respect to probable cause, the record reveals that Trooper Wells observed

       Gaines driving “like she was in a state of panic,” that she was “very, very

       nervous” and breathing heavily, her hands were shaking uncontrollably, she

       was struggling for answers to very simple questions and changing them

       midsentence, her nervousness was “just getting worse and worse,” and that he

       saw “her heart beating in her carotid.” Transcript at 141-142, 145. Further,

       when Trooper Wells asked her if she was traveling with anything illegal, Gaines

       initially responded “No sir.” Defendant’s Exhibit B1 at 6:15-6:20. He asked

       her if she had any drugs with her, and Gaines then answered that she probably

       had a joint in her purse. Trooper Wells said: “[Y]ou know, this nervousness

       seems like more than that, is there anything else in the car[?]” Transcript at

       189. Gaines looked away from him, stared at the car, and just shook her head.

       We also observe that Trooper Wells testified that when someone gives up a

       small amount of marijuana, it is for a reason, and that is to “keep something

       bigger hidden.” Id. at 193. Trooper Wells found Gaines’s purse and a small

       bag containing marijuana in the side pocket of a wallet on the passenger side of

       the seat. Based upon the circumstances including Gaines’s extreme

       nervousness, her initial denial of traveling with anything illegal, her admission

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 15 of 23
       that she had marijuana, and Trooper Wells’s discovery of marijuana in her

       purse, we conclude that Trooper Wells had probable cause to search the

       vehicle. See Meister, 933 N.E.2d at 877, 879-880 (observing that after an officer

       received confirmation that a driver he was following was driving on a

       suspended license, defendant exited the truck, the officer patted down the

       defendant and found a hollowed-out pen containing “powdery looking residue

       inside of it,” and he then conducted a warrantless search of the vehicle; holding

       that even if the testimony of the officer’s knowledge of the defendant’s recent

       history of possession of illegal drug possession was not considered, the pen and

       the powdery residue alone was sufficient to provide the requisite probable cause

       to search the vehicle; and concluding that the warrantless search was justified

       under the automobile exception). 2


[27]   To the extent Smith challenges the scope of the search and the search of the

       door, we note that Trooper Wells saw scratch marks in the paint and that the

       mounting hardware, screws, and the bolts in the door that hold the plastic shell

       to the metal shell were all missing paint indicating they had been “tooled up” as

       if someone had tampered with the panel, and that the window would not roll




       2
         To the extent Smith relies upon Sanders v. State, we observe that case involved officers stopping a driver for failing
       to make two right turns without using his turn signal, and officers found marijuana inside an envelope in the car
       and found marijuana in the ash tray. Sanders v. State, 576 N.E.2d 1328, 1328 (Ind. Ct. App. 1991). One officer
       testified that they had information from a confidential informant that the defendant was possibly in possession of
       some narcotics, and another officer testified that they had information that the defendant was operating a specific
       vehicle. Id. at 1329. We observed that there was no attempt to establish the trustworthiness of the information
       allegedly provided by the informant and held that neither of the general, vague statements gave rise to the notion
       that the officers had probable cause to believe the defendant was in possession of drugs. Id. We also observed that
       the State did “not really argue the officers had probable cause to search the car.” Id. at 1330. Given Trooper
       Wells’s observations as well as Gaines’s admission to the marijuana in the vehicle, we find Sanders distinguishable.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016                   Page 16 of 23
       all the way down. Id. at 150. Under the circumstances, we cannot say that the

       search of the door was improper. See Krise v. State, 746 N.E.2d 957, 964 (Ind.

       2001) (“[P]robable cause to search a vehicle and a warrant to search a home

       authorizes the search of every part of the vehicle or home and closed containers

       therein that may conceal the object of the search despite the suspect’s wishes to

       place limitations and regardless of the officer’s belief as to the type of the

       container to be searched.”) (citing Ross, 456 U.S. at 825, 102 S. Ct. 2157;

       Acevedo, 500 U.S. at 572; 111 S. Ct. 1982).


[28]   Smith argues that “[r]ather than retrieving [Gaines’s] purse and verifying the

       presence of the joint, Trooper Wells began an extensive search of the car during

       which he opened the trunk, peered under the hood, looked around inside and

       ultimately got out his toolkit and started tearing apart the door.” Appellant’s

       Brief at 22 (citing Defendant’s Exhibit B1). However, at trial, Trooper Wells

       testified that the first place he checked was the trunk and that he did not find

       anything. When asked what happened next, he mentioned Gaines’s purse on

       the passenger side of the seat and that he found a small bag containing

       marijuana inside. The video of the stop, Defendant’s Exhibit B1, supports

       Trooper Wells’s testimony that he initially searched the trunk and then




       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 17 of 23
       proceeded to the front passenger side. Accordingly, the record reveals that

       Trooper Wells discovered the marijuana prior to searching the door. 3


       B. Indiana Constitution


[29]   Smith asserts that to the extent he failed to specifically raise the Indiana

       Constitution, he addresses it as fundamental error and that fundamental error

       applies because all parties agreed the State had no chance of conviction without

       the heroin. He states that the degree of intrusion was great, that Gaines was

       going to jail once Trooper Wells discovered the marijuana, and that law

       enforcement had no compelling need to disassemble the car door while it sat on

       the side of the highway because the car would have been towed. The State

       points out that the trial court’s finding that the search was permissible under

       Article 1, Section 11 of the Indiana Constitution was not responsive to any

       contentions made by Smith, and that regardless, the search complied with

       Indiana’s constitutional protections against unreasonable search and seizure.


[30]   The Indiana Supreme Court has held even if evidence was obtained in violation

       of constitutional protections against unlawful searches and seizures, its

       introduction at trial “does not elevate the issue to the status of fundamental

       error that may be raised for the first time on appeal.” Swinehart v. State, 268

       Ind. 460, 466-467, 376 N.E.2d 486, 491 (1978); see also Covelli v. State, 579




       3
         Smith does not develop an argument regarding the impact of Trooper Wells searching the trunk prior to
       finding the marijuana or argue that any evidence was improperly seized prior to Trooper Wells discovering
       the marijuana.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016       Page 18 of 23
       N.E.2d 466, 471 (Ind. Ct. App. 1991), trans. denied. This is consistent with the

       Court’s more recent pronouncement that “the exclusionary rule that prohibits

       introduction into evidence of unlawfully seized materials is an example of a rule

       that does not go to the fairness of the trial.” Membres v. State, 889 N.E.2d 265,

       272 (Ind. 2008), reh’g denied. In other words, the products of unlawful searches

       and seizures are not excluded because they are unreliable or immaterial or

       unduly prejudicial evidence, but only because it is an effective means of

       deterring improper intrusions into the privacy of all citizens. Id.


[31]   More recently, in Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied,

       the Indiana Supreme Court indicated that there may be some occasions when

       an illegal seizure of evidence may amount to fundamental error. In Brown, the

       Court held that “an error in ruling on a motion to exclude improperly seized

       evidence is not per se fundamental error.” 929 N.E.2d at 207. “Indeed,

       because improperly seized evidence is frequently highly relevant, its admission

       ordinarily does not cause us to question guilt.” Id. “We do not consider that

       admission of unlawfully seized evidence ipso facto requires reversal.” Id. The

       Court observed that there was no claim of fabrication of evidence or willful

       malfeasance on the part of the investigating officers and no contention that the

       evidence was not what it appeared to be and concluded that “[i]n short, the

       claimed error does not rise to the level of fundamental error.” Id. There are no

       such claims in this case. Thus, we cannot say that the introduction of evidence

       seized from the vehicle constituted fundamental error in the context of the

       Indiana Constitution. See id.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 19 of 23
                                                        II.


[32]   The next issue is whether Smith’s sentence is inappropriate in light of the nature

       of the offense and his character. Ind. Appellate Rule 7(B) provides that we

       “may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, [we find] that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       “[A]ppellate review should focus on the forest—the aggregate sentence—rather

       than the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225,

       (Ind. 2008).


[33]   Smith argues that all of his drug-related activity occurred in a two-year period

       between 2010 and 2012 when he was in his early thirties, that his federal

       conviction resulted from years of intense scrutiny by the FBI who became

       suspicious of him in 2010, and that piling on an additional fifty years for the

       same sort of behavior renders the sentence in this case both punitive and

       ineffective. He also points out that though he could have received a life

       sentence in his federal case, the government did not recommend a life sentence




       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 20 of 23
       in that case, and that sentencing him to an additional fifty years in Indiana is

       not warranted. 4


[34]   The State argues that the trial court identified multiple valid aggravating

       circumstances and any of them would support Smith’s fifty-year sentence as

       well as the trial court’s order that it be served consecutive to his federal

       sentence. The State contends that there was no evidence in the record that the

       federal court actually sentenced Smith based on this case and that, even if it

       had, the trial court’s order that his sentence be served consecutively was not an

       abuse of discretion. The State asserts that the offense involved over 1,000 times

       the amount of heroin to make it punishable as a class A felony and that Smith’s

       character is that of an unrepentant chronic dealer of narcotics on a large scale

       undaunted by numerous convictions.


[35]   Our review of the nature of the offense reveals that Smith conspired to deal

       heroin as a class A felony in 2012 and paid Gaines to transport heroin for him.

       Our review of the character of the offender reveals that Smith, who was born in

       1979, was convicted of manufacture / delivery of a controlled substance in 1998

       in Illinois, “felon possess/use weapon/firearm” in 2000 in Illinois, possession

       of a controlled substance in 2004 in Illinois, drug trafficking in 2006 in Ohio,




       4
         To the extent Smith cites Article 1, Section 18, of the Indiana Constitution, which provides that “[t]he penal code
       shall be founded on the principles of reformation, and not of vindictive justice,” we observe that the Indiana
       Supreme Court has held that “particularized, individual applications are not reviewable under Article 1, Section 18
       because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges.” Ratliff v.
       Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g denied.



       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016                Page 21 of 23
       and possession of a controlled substance and use of a weapon by a felon in 2007

       in Illinois. 5 Smith was also found guilty of four counts of distribution of a

       schedule I controlled substance in Illinois for events related to the distribution

       of heroin in 2010 and ordered to serve 216 months or eighteen years. The

       presentence investigation report lists Smith’s criminal history domain level as

       moderate. Smith reported that he has five children and has always financially

       taken care of them. He reported that he was involved in a gang between ages

       fourteen and twenty-two, but that he is no longer in a gang. He reported

       receiving his GED and taking business in vocational school and that he finished

       real estate classes while incarcerated. His overall risk assessment score puts

       him in the moderate risk category to reoffend.


[36]   After due consideration and under the circumstances, we conclude that the

       imposition of the maximum sentence to be served consecutive to the sentence in

       federal court is not inappropriate.


                                                      Conclusion

[37]   For the foregoing reasons, we affirm Smith’s conviction and sentence for

       conspiracy to commit dealing in heroin as a class A felony.




       5
         The presentence investigation report also reveals that Smith was charged with disorderly conduct in 1995,
       burglary and possession of a controlled substance in 1996, battery and damaging property in 1999, possession
       of cannabis in 2001, aggravated assault and domestic battery in 2002, and manufacture/delivery of cannabis
       in 2003. The report either does not list the disposition for these offenses, indicates that some were “stricken
       off with leave to reinstate,” or lists “nolle prosequi.” Appellant’s Appendix Vol. III at 110-111.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016          Page 22 of 23
[38]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-148 | December 20, 2016   Page 23 of 23
