MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Mar 19 2019, 9:04 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Darren D. Bedwell                                        Attorney General of Indiana
Marion County Public Defender Agency
                                                         Monika Prekopa Talbot
Appellate Division                                       Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Harris,                                            March 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1242
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Shatrese M. Flowers, Judge
                                                         The Honorable
                                                         James K. Snyder, Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1705-F2-16166



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019              Page 1 of 17
[1]   Kevin Harris (“Harris”) brings this interlocutory appeal from the trial court’s

      order denying his motion to suppress the methamphetamine found during a

      warrantless search of his vehicle. On appeal, Harris raises the following two

      issues:


                I. Whether the methamphetamine was seized in violation of his
                rights under the Fourth Amendment to the United States
                Constitution; and


                II. Whether the methamphetamine was seized in violation of his
                rights under Article 1, Section 11 of the Indiana Constitution.


      The State files a cross appeal, contending that this appeal should be dismissed

      because Harris’s belated filings deprive this court of jurisdiction. Concluding

      that we have jurisdiction to address the issues before us, we affirm the trial

      court’s denial of the motion to suppress and remand to the trial court for further

      proceedings.


[2]   We affirm and remand.


                                 Facts and Procedural History
[3]   On April 28, 2017, at approximately 2:45 p.m., Indianapolis Metropolitan

      Police Department (“IMPD”) Officer Aaron Ramos (“Officer Ramos”) was

      dispatched to a Marathon gas station near Moeller Road and 34th Street to

      investigate a call of “a person unresponsive in a vehicle, possibly sleeping, or

      under the influence of drugs.” Tr. Vol. II at 8. When Officer Ramos arrived at

      the scene, he saw a vehicle parked facing the front of the business. Harris was

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 2 of 17
      sitting in the driver seat and appeared to be either asleep or unconscious.

      Before approaching the vehicle, Officer Ramos went inside the gas station and

      confirmed that Harris was the man about whom the call was made.


[4]   Officer Ramos then returned to the vehicle and knocked on the driver’s

      window, trying to rouse Harris When Harris did not respond, Officer Ramos

      looked through the window and saw on the passenger seat a “syringe with an

      orange cap on top” sticking out of a black pouch. Id. at 10. Officer Ramos

      knew it was a syringe because “[w]ith the orange cap, and the—object was

      sticking out . . . [he] could see part of it.” Id. The pouch was open and facing

      Harris. Seeing the syringe, Officer Ramos was concerned that Harris was under

      the influence of drugs and may have suffered an overdose.


[5]   Officer Ramos opened the car door and continued trying to wake Harris by

      tapping him and yelling at him. Id. “Eventually, [Harris] did come out of it.”

      Id. Officer Ramos asked Harris “if he had been using,” and “[Harris] said,

      nothing.” Id. at 11. Officer Ramos “had [Harris] step out of the vehicle” and

      noticed that he was “unsteady,” “shaky,” “jittery,” and “couldn’t stand still.”

      Id. Harris was wearing one shoe, with no shoe or sock on his other foot. His

      “clothes appeared disheveled,” and he was sweating. Id.


[6]   With Harris out of his vehicle, Officer Ramos had an unobstructed view of the

      pouch and its contents, and he could see, without touching the pouch, that it

      contained two larger-size baggies of a crystal substance. Based on his “training

      and experience,” Officer Ramos believed the substance was crystal


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 3 of 17
      methamphetamine. Id. at 12-13. Because the baggies contained a substantial

      amount of methamphetamine, Officer Ramos suspected that Harris was

      “involved in the dealing, or the sale of methamphetamine.” Id. at 13. Officer

      Ramos placed Harris in handcuffs, stating that he believed that Harris was “a

      possible threat to [the officer’s] safety” because:


              [T]here was a syringe that had possibly been used recently in the
              vehicle, within arm’s reach of Mr. Harris. Also, because of his
              demeanor, I wasn’t sure -- I was there by myself. I wasn’t sure
              what -- what the reason for his behavior, so I placed him in
              handcuffs for officer safety, just to keep control of him, until back
              up arrived.


      Id. at 12. Officer Ramos contacted a narcotics officer and then retrieved the

      baggies of methamphetamine and placed them inside an evidence bag.


[7]   Officer Ramos arrested Harris, placed him inside the cruiser, and transported

      him to the northwest district roll call. Id. at 14, 20. There, Harris signed a

      “waiver of rights” before being interviewed by IMPD Detective James Smith

      (“Detective Smith”). Id. at 21. During the interview, Harris said he did not

      deal drugs; instead, he was a “middle man.” Id. Explaining that a middle man

      was the one who made the connection between customers and dealers, Harris

      gave Detective Smith names and “possible identities” of people for whom he

      arranged transactions. Id. On May 5, 2017, the State charged Harris with




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 4 of 17
      dealing in methamphetamine1 as a Level 2 felony and alleged that he was an

      habitual offender.2 Appellant’s App. Vol. II at 12-13.


[8]   On January 18, 2018, Harris filed a motion to suppress both the

      methamphetamine found in his vehicle and the statements he made to

      Detective Smith during the interview. At the hearing on the motion, Harris

      argued that there had been no reasonable suspicion or probable cause to detain

      him and that, by illegally cuffing him, anything thereafter discovered was fruit

      of the poisonous tree. Id. at 60. The trial court denied Harris’s motion on

      March 8, 2018 (“March 2018 Order”), saying, “Given the officer’s observations

      and the open view cap to a syringe in the vehicle, Ramos had probable cause to

      arrest [Harris] for a crime.” Id. at 61. It also stated, “Probable cause to believe

      that an operable vehicle contains contraband is an exception to the warrant

      requirement under Fourth Amendment analysis.” Id. The trial court

      concluded, “Under the totality of the circumstances, the officers’ actions were

      reasonable under the United States and Indiana Constitutions.”3 Id. at 61.


[9]   On April 24, 2018, Harris belatedly filed a petition asking the trial court: (1) to

      certify the March 2018 Order for interlocutory appeal; and (2) to stay

      proceedings in the trial court pending the outcome of the appeal. Id. at 68-70.



      1
          See Ind. Code § 35-48-4-1.1(a)2, (e)(1).
      2
       The habitual offender count was later amended, but only to reflect the correct conviction date for an
      underlying offense. Appellant’s App. Vol. II at 45-47.
      3
       Harris does not appeal the trial court’s denial of his motion to suppress the statements he made to Detective
      Smith.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019                    Page 5 of 17
       That same day, the trial court issued an order granting Harris’s motion. Id. at

       9, 71. On May 21, 2018, Harris filed a motion asking the trial court to issue an

       amended order reflecting there was good cause for granting the belated petition

       for certification. Id. at 72-75. The trial court issued its amended order on May

       22, 2018, certifying the March 2018 Order for interlocutory appeal and finding

       good cause for Harris’s belated filing. Id. at 76. Specifically, the trial court

       found that “[Harris]’s counsel has been and continues to be in the midst of an

       ongoing family medical emergency, the delay was not intentional nor an

       attempt to gain an advantage, and the delay was through no fault of the

       defendant himself.” Id.


[10]   On May 24, 2018, Harris filed with this court a verified motion to accept

       jurisdiction of a discretionary interlocutory appeal. Id. at 77-84. On June 29,

       2018, our court accepted jurisdiction over the interlocutory appeal. Id. at 113.

       In that order, our court specified that Harris was to comply with Appellate Rule

       14(B)(3), which requires an appellant to file a notice of appeal with the clerk

       within fifteen days of our court having accepted jurisdiction over the

       interlocutory appeal. Id. at 113. Harris failed to file a timely notice of appeal

       with this court but, on August 7, 2018, filed a verified motion for leave to file a

       belated notice of interlocutory appeal. Our court granted Harris’s motion on

       August 17, 2018, and Harris filed his notice of appeal that same day.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 6 of 17
                                      Discussion and Decision

                                         Timeliness of Appeal
[11]   On cross-appeal, the State contends that our court does not have jurisdiction to

       hear this appeal. Since a question of jurisdiction must be decided prior to

       analyzing the merits, we address the State’s cross-appeal first. See Arflack v.

       Town of Chandler, 27 N.E.3d 297, 300 (Ind. Ct. App. 2015) (court addressed

       appellant’s procedural issue of jurisdiction prior to proceeding on the merits).

       The State cites Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind. Ct. App.

       2009) for the proposition that “[t]he timeliness of an appeal is a jurisdictional

       matter.” Appellee’s Br. at 10. Noting that the Appellate Rules’ authorization of

       interlocutory appeals is “strictly construed,” the State maintains that Harris’s

       belated appeal from the interlocutory order deprives this court of jurisdiction.

       Id. Specifically, the State claims that the following circumstances preclude this

       appeal: (1) Harris’s late request for certification of the trial court’s denial of his

       motion to suppress; (2) his failure to comply with Appellate Rule 14; (3) his

       untimely notice of appeal; and (4) his inability to proceed under Indiana Post-

       Conviction Rule 2. The State also notes that, since Harris will be able to litigate

       this issue during trial and can appeal any adverse judgment, Harris will not be

       prejudiced by our court’s refusal to accept jurisdiction over this appeal. Id.

       These claims can be consolidated and restated as whether Harris’s untimely

       filings with the trial and appellate courts deprived this court of jurisdiction.


[12]   Appellate Rule 14(B) governs discretionary interlocutory appeals and, in part,

       provides for a two-step process to initiate a discretionary interlocutory appeal:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 7 of 17
       (1) the trial court must certify its order for interlocutory appeal; and (2) if the

       trial court does so, this court “in its discretion, upon motion by a party” may

       accept interlocutory jurisdiction over the appeal. See Ind. Appellate Rule 14(B);

       State v. Foy, 862 N.E.2d 1219, 1223 (Ind. Ct. App. 2007).


[13]   Regarding step one, a party seeking discretionary interlocutory review of a trial

       court’s order must seek certification of the appealed order from the trial court

       within thirty days of the order having been entered. App. R. 14(B)(1)(a).

       Where the thirty-day period has elapsed, the party seeking interlocutory review

       must set forth good cause for the delay in seeking certification of the order. Id.

       In its May 22, 2018 order, the trial court granted Harris’s request for

       interlocutory appeal of the March 2018 Order, noting:


               The Court . . . finds that [Harris’s] Petition for Certification was
               filed belatedly. This Court finds good cause for the belated
               filing—specifically, [Harris’s] counsel has been and continues to
               be in the midst of an ongoing family medical emergency, the
               delay was not intentional nor an attempt to gain an advantage,
               and the delay was through no fault of [Harris] himself.


       Appellant’s App. Vol. II at 76. Finding good cause for the belated filing, the trial

       court permitted Harris’s belated motion and granted his request to certify the

       March 2018 Order for interlocutory appeal.


[14]   Regarding step two, “A party initiates an appeal by filing a notice of appeal

       within thirty days after entry of an appealable order.” In re D.J. v. Ind. Dep’t of

       Child Servs., 68 N.E.3d 574, 578 (Ind. 2017). Our court “in its discretion, upon

       motion by a party, may accept jurisdiction of the appeal.” App. R. 14(B)(2).
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 8 of 17
               Despite the thirty-day requirement for filing a notice of appeal,
               timeliness is not a prerequisite to invoking appellate jurisdiction.
               Stated differently, the reviewing court is not deprived of jurisdiction
               if the notice is untimely—meaning belated or premature. The
               only two prerequisites under our appellate rules are (i) the trial
               court must have entered an appealable order, and (ii) the trial
               clerk must have entered the notice of completion of clerk’s record
               on the CCS.


       In re D.J., 68 N.E.3d at 578 (emphasis added); see In re Adoption of O.R., 16

       N.E.3d 965, 967-68 (Ind. 2014) (“the untimely filing of a Notice of Appeal is

       not a jurisdictional bar precluding appellate review.”). Here, both prerequisites

       were met.


[15]   Furthermore, a notice of appeal for an interlocutory order “shall be in the form

       prescribed by Appellate Rule 9 . . . .” App. R. 14(B)(3). Our Supreme Court

       recently stated:


               Appellate Rule 9(A)(5) speaks not of jurisdiction but forfeiture:
               “Unless the Notice of Appeal is timely filed, the right to appeal
               shall be forfeited except as provided in [Post–Conviction Rule]
               2.” It is noteworthy that “[f]orfeiture and jurisdiction are not the
               same.” In re Adoption of O.R., 16 N.E.3d [at 970]. Forfeiture is
               “[t]he loss of a right, privilege, or property because of a . . .
               breach of obligation[ ] or neglect of duty.” Id. (quoting Black’s
               Law Dictionary 765 (10th ed. 2014)). Jurisdiction, by contrast,
               refers to “[a] court’s power to decide a case or issue a decree,”
               Black’s Law Dictionary 980—it “speaks to the power of the court
               rather than to the rights or obligations of the parties,” [In re]
               Adoption of O.R., 16 N.E.3d at 971 (brackets, citations, and
               emphases omitted).


       In re D.J., 68 N.E.3d at 579.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 9 of 17
[16]   “Although it is never error for an appellate court to dismiss an untimely appeal,

       the court has jurisdiction to disregard the forfeiture and resolve the merits.” In

       re Adoption of O.R., 16 N.E.3d at 971-72.


               Indiana’s rules and precedent give reviewing courts authority “to
               deviate from the exact strictures” of the appellate rules when
               justice requires. In re Howell, 9 N.E.3d 145, 145 (Ind. 2014).
               “Although our procedural rules are extremely important . . . they
               are merely a means for achieving the ultimate end of orderly and
               speedy justice.” American States Ins. Co. v. State ex rel. Jennings,
               258 Ind. 637, 640, 283 N.E.2d 529, 531 (1972). See also App. R.
               1 (“The Court may, upon the motion of a party or the Court’s
               own motion, permit deviation from these Rules.”). This
               discretionary authority over the appellate rules allows us to
               achieve our preference for “decid[ing] cases on their merits rather
               than dismissing them on procedural grounds.” [In re] Adoption of
               O.R., 16 N.E.3d at 972 (citation omitted). See also In re Adoption
               of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014) (considering merits
               after denying appellees’ motion to dismiss based on procedural
               defect) . . .


       In re D.J., 68 N.E.3d at 579. Accordingly, we deny the State’s request to

       dismiss this appeal and choose to address it on the merits.


                                          Motion to Suppress
[17]   Harris argues that the police seized the methamphetamine in violation of his

       rights under the Fourth Amendment to the United States Constitution and

       Article 1, Section 11 of our Indiana Constitution, and, therefore, the trial court

       abused its discretion in denying his motion to suppress the evidence. Appellant’s

       App. at 9. A trial court is afforded broad discretion in ruling on the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 10 of 17
       admissibility of evidence, and we will reverse such a ruling only upon a

       showing of an abuse of discretion. Glasgow v. State, 99 N.E.3d 251, 256 (Ind.

       Ct. App. 2018). An abuse of discretion involves a decision that is clearly

       against the logic and effect of the facts and circumstances before the court. Id.

       We will not reweigh the evidence, and we consider conflicting evidence in the

       light most favorable to the trial court’s ruling, but we also consider any

       uncontested evidence favorable to the defendant. Id. at 256-57; Collins v. State,

       822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. When, as in the instant

       case, the admissibility of evidence turns on questions of constitutionality

       relating to the search and seizure of that evidence, our review is de novo. Jacobs

       v. State, 76 N.E.3d 846, 849 (Ind. 2017).


                                           I. Fourth Amendment

[18]   The Fourth Amendment states,


               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.


       “The fundamental purpose of the Fourth Amendment is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct.

       App. 2016) (internal quotation marks omitted). “This protection has been



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 11 of 17
       extended to the states through the Fourteenth Amendment to the United States

       Constitution.” Id. (citing Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001)).


[19]   In general, the Fourth Amendment prohibits searches and seizures conducted

       without a warrant supported by probable cause. Id. (citing Clark v. State, 994

       N.E.2d 252, 260 (Ind. 2013)). “‘[A] person is seized . . . when, by means of

       physical force or a show of authority, his freedom of movement is restrained.’”

       Randall v. State, 101 N.E.3d 831, 837 (2018) (quoting U.S. v. Mendenhall, 446

       U.S. 544, 553 (1980)), trans. denied (internal quotation marks omitted). “[A]

       warrantless search or seizure is per se unreasonable.” M.O. v. State, 63 N.E.3d

       329, 331 (Ind. 2016). “As a deterrent mechanism, evidence obtained without a

       warrant is not admissible in a prosecution unless the search or seizure falls into

       one of the well-delineated exceptions to the warrant requirement.” Mullen, 55

       N.E.3d at 827. “Where a search or seizure is conducted without a warrant, the

       State bears the burden to prove that an exception to the warrant requirement

       existed at the time of the search or seizure.” Brooks v. State, 934 N.E.2d 1234,

       1240 (Ind. Ct. App. 2010), trans. denied.


[20]   Officer Ramos encountered Harris at the Marathon gas station when he

       responded to a dispatch that a person was “unresponsive in a vehicle, possibly

       sleeping, or under the influence of drugs.” Tr. Vol. II at 8. Once Officer Ramos

       confirmed that Harris was the subject of the call, Officer Ramos approached

       Harris’s vehicle and tried to rouse him by rapping on the window. Harris did

       not immediately respond, and as Officer Ramos continued to rap on the

       window, he saw on the passenger seat a “syringe with an orange cap on top”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 12 of 17
       sticking out of a black pouch. Id. at 10. Officer Ramos opened the car door

       and continued his efforts to wake Harris by tapping him and yelling at him. Id.

       Eventually, Harris came to. Id. Harris concedes that none of these actions

       taken by Officer Ramos, including opening Harris’s car door without a warrant,

       constituted a violation of his Fourth Amendment rights. Appellant’s Br. at 12

       n.2 (citing Cruz-Salazar v. State, 63 N.E.3d 1055, 1056 (Ind. 2016) (finding driver

       unresponsive in a stationary vehicle, provided objectively reasonable basis for

       officer to open the door and check on the driver)). Instead, Harris contends

       that, because he was illegally detained when Officer Ramos ordered him out of

       the car and handcuffed him without probable cause to do so, the evidence

       found in the car was the fruit of the poisonous tree. Id. We disagree.


[21]   Having observed the syringe, Officer Ramos was concerned that Harris was

       under the influence of drugs and may have suffered an overdose. Accordingly,

       once Harris regained consciousness, Officer Ramos had Harris step out of his

       vehicle. Tr. Vol. II at 11. As Harris exited his vehicle, Officer Ramos had an

       unobstructed view of the passenger seat and could see inside the pouch, where

       there were two large baggies of a crystal substance. Based on his “training and

       experience,” Officer Ramos believed the substance was crystal

       methamphetamine. Id. at 12-13. Because the baggies contained a substantial

       amount of methamphetamine, Officer Ramos suspected that Harris was

       “involved in the dealing, or the sale of methamphetamine.” Id. at 13. At this

       point, prior to placing Harris in handcuffs, Officer Ramos had probable cause to

       believe the vehicle contained evidence of a crime.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 13 of 17
[22]   “The ‘automobile exception’ to the warrant requirement allows police to search

       a vehicle without obtaining a warrant if they have probable cause to believe the

       vehicle contains evidence of a crime.” Harbaugh v. State, 96 N.E.3d 102, 106

       (Ind. Ct. App. 2018) (quoting State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind.

       2010)), trans. denied. “This doctrine 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.” Hobbs, 933 N.E.2d at 1285 (citing California v.

       Carney, 471 U.S. 386, 391 (1985)). “Most cases addressing the automobile

       exception arise in the context of an arrest or an investigatory stop of a motorist

       that gives rise to probable cause, but the exception is grounded in the mobility

       of the vehicle and its location in a public area, not on whether the issue arises in

       the context of an arrest or a traffic stop.” Id.


[23]   “Under this exception, ‘an operational vehicle is inherently mobile, whether or

       not a driver is behind the wheel or has ready access.’” Harbaugh, 96 N.E.3d at

       106. (quoting Hobbs, 933 N.E.2d at 1286). While Harris contends that there

       was no proof that his vehicle was operational, that issue is of no import. Our

       Supreme Court has set forth its understanding of the “ready mobility”

       requirement of the automobile exception, saying,


               [A]ll 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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 14 of 17
               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.


       Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (emphasis added). Having

       seen the syringe and the baggies of crystal methamphetamine in the pouch on

       the passenger seat of Harris’s vehicle, Officer Ramos had probable cause for a

       warrantless search of the interior of Harris’s vehicle under the automobile

       exception. Id. The probable cause and ready mobility of the vehicle allowed

       the warrantless search of the vehicle’s interior. Harris has not established that

       the seizure of the methamphetamine violated his rights under the Fourth

       Amendment.


                                          II. Article 1, Section 11

[24]   Article 1, Section 11 of the Indiana Constitution provides for the “right of the

       people to be secure in their persons, houses, papers, and effects, against

       unreasonable search or seizure. . . .” “Despite the fact that the text of Article 1,

       Section 11 is nearly identical to the Fourth Amendment, Indiana courts

       interpret and apply it ‘independently from federal Fourth Amendment

       jurisprudence.’” Rutledge v. State, 28 N.E.3d 281, 291 (Ind. Ct. App. 2015)

       (quoting Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001)). “In conducting

       analysis under this provision, we focus on whether the officer’s conduct ‘was

       reasonable in light of the totality of the circumstances.’” Id. (quoting Holder v.

       State, 847 N.E.2d 930, 940 (Ind. 2006)). In making this determination, we

       balance: “(1) the degree of concern, suspicion, or knowledge that a violation
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 15 of 17
       has occurred; (2) the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities; and (3) the extent of law

       enforcement needs.” Id. When police conduct is challenged as violating

       Section 11, the burden is on the State to show that the search or seizure was

       reasonable under the totality of the circumstances. Id. (citing State v.

       Washington, 898 N.E.2d 1200, 1206 (Ind. 2008)).


[25]   Here, the degree of concern, suspicion, or knowledge that a violation had

       occurred was high. Officer Ramos encountered Harris while responding to a

       report of a nonresponsive man sitting in the parking lot of a Marathon gas

       station. Officer Ramos tried repeatedly to rouse Harris, but when knocking on

       the window did not work, he opened Harris’s door to tap him and yell at him.

       Tr. Vol. II at 10. Seeing a syringe sticking out of a pouch on the passenger seat,

       Officer Ramos became concerned that Harris was under the influence of drugs

       or experiencing an overdose. Id. Once Harris had regained consciousness,

       Officer Ramos asked him to step out of the car. Id. at 11. It was then that the

       officer saw the two large baggies of methamphetamine. Id. at 12. Based on his

       “training and experience,” Officer Ramos believed the substance was crystal

       methamphetamine, in a volume suggesting that Harris was “involved in the

       dealing, or the sale of methamphetamine.” Id. at 13.


[26]   Officer Ramos’s actions did not intrude into Harris’s ordinary activities. Officer

       Ramos did not stop Harris’s car on the road. Instead, Officer Ramos

       encountered Harris passed out in a car. By the time Harris regained

       consciousness, Officer Ramos had already seen the syringe. Officer Ramos

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 16 of 17
       merely asked Harris to step out of his car. It was then that Officer Ramos saw

       the baggies of methamphetamine. This did not interfere with Harris’s activities.


[27]   Finally, the law enforcement needs were high. Harris was passed out and

       difficult to wake up. He was sitting next to a pouch and syringe that were

       visible through the car window. From this evidence, Officer Ramos believed

       that Harris might have overdosed. Additionally, the amount of

       methamphetamine that Officer Ramos saw on the passenger seat suggested that

       Harris was a dealer. It was not unreasonable for Officer Ramos to seize the

       methamphetamine.


[28]   Here, the warrantless search of Harris’s vehicle did not violate the search and

       seizure provisions of either the federal Fourth Amendment or Article 1, Section

       11 of the Indiana Constitution. The trial court did not abuse its discretion when

       it denied Harris’s motion to suppress the evidence of the methamphetamine.


[29]   Affirmed and remanded.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1242 | March 19, 2019   Page 17 of 17
