                                                                        FILED
                                                                    Aug 07 2019, 8:47 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                        Curtis T. Hill, Jr.
O’Connor & Auersch                                         Attorney General of Indiana
Indianapolis, Indiana
                                                           Caroline G. Templeton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Carl Smith,                                                August 7, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-3009
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49G08-1705-CM-17562



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019                           Page 1 of 10
                                           Case Summary
[1]   In May of 2017, a vehicle being driven by Carl Smith was stopped by police

      after committing multiple traffic infractions. After it was determined that

      Smith’s driver’s license was suspended, officers decided to have the vehicle

      towed. Prior to being towed, officers searched Smith’s vehicle and discovered a

      handgun, for which Smith did not have a license to carry. In October of 2018,

      Smith was convicted of Class A misdemeanor carrying a handgun without a

      license and Class A infraction driving while suspended. Smith does not contest

      his conviction for driving while suspended but contends that the purported

      inventory search was not conducted pursuant to established departmental

      routine or regulation, violating his rights under the Fourth Amendment of the

      United States Constitution. Finding his contention dispositive and agreeing

      with it, we affirm his conviction for driving while suspended and reverse his

      conviction for carrying a handgun without a license.



                             Facts and Procedural History
[2]   On May 10, 2017, a vehicle being driven by Smith was pulled over by

      Indianapolis Metropolitan Police Officer Aaron Trotter for committing multiple

      traffic infractions. After Smith admitted to not having a driver’s license, Officer

      Trotter requested Smith’s name and date of birth. Smith replied that he did not

      have a date of birth and asked for Officer Trotter’s supervisor. Once Officer

      Trotter’s sergeant arrived, Smith was removed from the vehicle and placed in

      handcuffs. Officer Trotter eventually obtained a document containing Smith’s

      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019         Page 2 of 10
      name and social security number. After identifying Smith by searching the

      police database, a cross-search of the Bureau of Motor Vehicles’s records

      revealed that Smith’s driver’s license was suspended. While Officer Trotter

      began filling out paperwork to arrest Smith for driving while suspended and

      failure to identify, two other officers searched the vehicle, discovering a

      handgun in the glove box. At some point, an acquaintance of Smith arrived on

      scene with a valid driver’s license and was permitted by the officers to drive

      Smith’s vehicle home.


[3]   On May 12, 2017, the State charged Smith with Class A misdemeanor carrying

      a handgun without a license, Class A misdemeanor driving while suspended,

      and Class C misdemeanor refusal to identify. On October 10, 2018, a bench

      trial was held, at which Smith moved to suppress evidence discovered during

      the search, claiming that the search was unconstitutional. The State solely

      argued that the search was a valid inventory search. The trial court denied

      Smith’s motion and found him guilty of Class A misdemeanor carrying a

      handgun without a license and Class A infraction driving while suspended. The

      trial court sentenced Smith to 365 days with 357 days suspended to probation.



                                 Discussion and Decision
[4]   Smith contends that the trial court erroneously admitted evidence obtained

      during the search of his car because said search violated his rights pursuant to

      the Fourth Amendment of the United States Constitution. Specifically, Smith

      contends that the State failed to establish that the impoundment was done

      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019         Page 3 of 10
      pursuant to the police department’s established routine or regulation. The

      admission of evidence is a matter entrusted to the sound discretion of the trial

      court, and we will only reverse its ruling if it is clearly against the logic and

      effect of the facts and circumstances. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.

      2013) (internal quotations omitted). However, we review the trial court’s ruling

      on the constitutionality of a search or seizure de novo. Campos v. State, 885

      N.E.2d 590, 596 (Ind. 2008).


[5]   The Fourth Amendment guarantees people the right “to be secure in their

      persons, houses, papers, and effects, against unreasonable searches and

      seizures[.]” “[W]hen police impound a vehicle and inventory its contents, they

      effect a search and seizure, and both measures must be reasonable—that is,

      executed under a valid warrant or a recognized exception to the warrant

      requirement.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). A well-

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

      Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000). “The rationale for the

      inventory exception is three-fold: 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. Thus, the inventory search serves

      an administrative rather than investigatory purpose. Wilford, 50 N.E.3d at 375.

      The State bears the burden of proving that the inventory search was reasonable.

      Id. The threshold question in determining the validity of an inventory search is

      proper impoundment, and impoundment is reasonable if authorized by statute

      or the police’s discretionary community-caretaking function. Id. at 374–75.


      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019            Page 4 of 10
      Because neither party contends that the inventory search was authorized by

      statute, we focus on whether the search was reasonable pursuant to the police’s

      community-caretaking function.


[6]   The Indiana Supreme Court has stated that “police may discharge their

      caretaking function whenever circumstances compel it, but also that a decision

      to impound must be exercised according to standard criteria and on the basis of

      something other than suspicion of evidence of criminal activity.” Id. at 375

      (internal citations omitted). The rule that the standardized criteria or established

      routine must exist as a precondition to a valid inventory search is designed to

      ensure that an inventory search is not a pretext “for general rummaging in order

      to discover incriminating evidence.” Fair v. State, 627 N.E.2d 427, 435 (Ind.

      1993) (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)). Thus, in order for the

      State to prevail on the question of whether an impoundment was warranted in

      terms of the community-caretaking function and was not pretextual, it must

      establish that (1) consistent with objective standards of sound policing, the

      officer believed that the vehicle posed a threat of harm to the community or was

      itself imperiled, and (2) the officer’s decision to impound the vehicle adhered to

      established departmental routine or regulation. Wilford, 50 N.E.3d at 376.


[7]   We conclude that the State failed to establish that Officer Trotter’s decision to

      impound Smith’s vehicle adhered to established departmental routine or

      regulation. While we do not require evidence of the department’s written

      procedure, we do require more than conclusory testimony from an officer. Id.

      An officer’s testimony provides adequate evidence of the department’s

      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019         Page 5 of 10
      impoundment procedure if “it outlines the department’s standard impound

      procedure and specifically describes how the decision to impound adhered to

      departmental policy or procedure—as opposed to an officer’s generalized

      assertion.” Id. at 377 (internal quotations omitted). Here, Officer Trotter

      testified that the inventory search of Smith’s vehicle was pursuant to a “typical

      tow policy.” Tr. Vol. II p. 112. Officer Trotter also testified that it would be

      typical for him to request a tow of a vehicle when there is no licensed driver

      present. Officer Trotter’s testimony regarding impoundment is at best a

      generalized assertion that the impoundment and search were conducted

      pursuant to the department’s procedure; however, it fails to specially describe

      how the impoundment decision adhered to the department’s procedure.

      Moreover, the State acknowledges that “there was not sufficient evidence of the

      [Indianapolis Metropolitan Police Department] inventory policy admitted at

      trial.” Appellee Br. p. 14. Given the conclusory nature of Officer Trotter’s

      testimony and the State’s concession, we conclude that the trial court

      erroneously admitted the evidence obtained from the inventory search.


[8]   The State argues that the search was a valid search incident to arrest, another

      established exception to the warrant requirement. While Officer Meyer testified

      that it was his belief that this was a search pursuant to a lawful arrest, the State

      never adopted or made that argument at trial. Therefore, the State has waived

      that argument for appellate review. See Whitfield v. State, 699 N.E.2d 666, 669

      (Ind. Ct. App. 1998) (concluding that an argument raised for the first time on

      appeal is waived and will not be considered), trans. denied.


      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019           Page 6 of 10
[9]   The judgment of the trial court is affirmed in part and reversed in part, vacating

      Smith’s conviction for Class A misdemeanor carrying a handgun without a

      license.


      Crone, J., concurs.


      Tavitas, J., concurs in result with opinion.




      Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019        Page 7 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Carl Smith,
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  18A-CR-3009
               v.

       State of Indiana,
       Appellee-Plaintiff.




       Tavitas, Judge, concurring in result with opinion.


[10]   I concur in result with the majority’s opinion. I write separately, however, to

       emphasize the unusual circumstances here.


[11]   In Wilford v. State, 50 N.E.3d 371, 375-76 (Ind. 2016), our Supreme Court noted

       that the State is required to satisfy both of the following elements to prove that

       the decision to impound a person’s vehicle without a warrant was reasonable:


               (1) Consistent with objective standards of sound policing, an
               officer must believe the vehicle poses a threat of harm to the
               community or is itself imperiled; and


               (2) The officer’s decision to impound adhered to established
               departmental routine or regulation.
       Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019                      Page 8 of 10
       Wilford, 50 N.E.3d at 375-76.


[12]   It is perfectly clear that the first prong of the test was met here. The officer

       observed multiple traffic violations and stopped the vehicle that Smith was

       driving. An adult female and four children were also in the vehicle. Smith,

       who adheres to the sovereign citizen ideology, repeatedly refused to identify

       himself. The officer was eventually able to identify Smith and learned that

       Smith’s driver’s license was suspended. The female passenger also lacked a

       valid driver’s license. The officer testified that Smith’s vehicle posed a hazard

       to public safety because it was parked in the single travel lane of the road,

       which had no on-street parking lane, and the officers decided to tow the vehicle.

       The officers then completed an inventory search of the vehicle and discovered

       the handgun. As the vehicle was parked in the travel lane of a road and neither

       adult in the vehicle possessed a valid driver’s license, towing of the vehicle was

       clearly consistent with sound policing.


[13]   As for the second element, it seems clear that the officer’s decision to impound

       would have complied with any department’s impoundment policy. Our

       Supreme Court, however, has held that “[o]fficer testimony provides adequate

       evidence of departmental impound policy if it outlines the department’s

       standard impound procedure and specifically describes how the decision to

       impound adhered to departmental policy or procedure.” Wilford, 50 N.E.3d at

       377. On appeal, the State concedes that “there was not sufficient evidence of

       the IMPD inventory policy admitted at trial.” Appellee’s Br. p. 14. Because

       the State failed to present sufficient evidence at the trial that the officer’s

       Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019             Page 9 of 10
       decision adhered to established departmental routine or regulation, I am

       constrained to find that the trial court erroneously admitted the evidence

       obtained during the search of the vehicle.


[14]   The State also argues that the evidence was admissible under the search

       incident to arrest exception because it was reasonable to believe that evidence

       relevant to the crime of arrest would be found in the vehicle. 1 Specifically, the

       State contends the officers were looking in the vehicle for Smith’s identification.

       The majority holds that the State waived this argument. I disagree that the

       State waived this argument. We may affirm a trial court’s ruling on the

       admissibility of evidence “on any theory supported by the evidence.” Satterfield

       v. State, 33 N.E.3d 344, 352 (Ind. 2015). I conclude, however, that the State

       failed to present sufficient evidence at the trial to establish that the search

       incident to arrest exception is applicable here. At the time of the search, the

       officers had already identified Smith and already learned that his driver’s

       license was suspended. A search of the vehicle would not have revealed

       evidence that Smith refused to identify himself or drove while suspended. For

       these reasons, I concur in result.




       1
         Under the search incident to arrest exception, “[p]olice may search a vehicle incident to a recent occupant's
       arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or
       it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S.
       332, 351, 129 S. Ct. 1710, 1723 (2009) (emphasis added). The State does not argue that Smith was within
       reaching distance of the passenger compartment at the time of the search; rather, the State argues only that it
       was reasonable to believe the vehicle contained evidence of the offense of arrest.

       Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019                                  Page 10 of 10
