                                                                   FILED
                                                               Jan 19 2017, 8:08 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David A. Smith                                             Curtis T. Hill, Jr.
McIntyre & Smith                                           Attorney General of Indiana
Bedford, Indiana                                           Justin F. Roebel
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Daniel Ray Holloway,                                       January 19, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           59A01-1604-CR-745
        v.                                                 Appeal from the Orange Circuit
                                                           Court
State of Indiana,                                          The Honorable Larry R. Blanton,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           59C01-1402-FA-93



Pyle, Judge.




Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017               Page 1 of 14
                                         Statement of the Case
[1]   Daniel Ray Holloway (“Holloway”) appeals his convictions, received following

      a jury trial, for Class B felony dealing in methamphetamine,1 Class D felony

      maintaining a common nuisance,2 and Class D felony possession of chemical

      reagents or precursors.3 At trial, the trial court admitted, over Holloway’s

      objection, evidence of items used in methamphetamine manufacturing that

      investigators had discovered during a warrantless search of Holloway’s car. On

      appeal, Holloway argues that the trial court abused its discretion in admitting

      this evidence because the search that produced it violated his right to privacy

      under the United States and Indiana Constitutions. We conclude that the trial

      court did not abuse its discretion because the exigent circumstances exception

      to the prohibition against warrantless searches under the United States

      Constitution applied, and the search was reasonable under the Indiana

      Constitution.


[2]   We affirm.




      1
       IND. CODE § 35-48-4-1.1(a)(1). The dealing in methamphetamine statute has since been amended, and
      Holloway’s conviction would now be considered a Level 5 felony. However, because Holloway committed
      his offense in February 2014, we will apply the version of the statute in effect at that time.
      2
       I.C. § 35-48-4-13(b)(2). The maintaining a common nuisance statute has also been amended, and
      Holloway’s offense would now be considered a Class A misdemeanor. However, we will apply the version
      of the statute in effect at that time.
      3
       I.C. § 35-48-4-14.5(e). This offense would now be considered a Level 6 felony. Holloway was also
      convicted of resisting law enforcement and criminal recklessness and adjudicated an habitual substance
      offender, but he does not challenge those convictions or his adjudication on appeal.

      Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017                      Page 2 of 14
                                                       Issue
              Whether the trial court abused its discretion in admitting evidence
              obtained as a result of a warrantless search of Holloway’s vehicle.

                                                       Facts
[3]   In the early morning hours of February 10, 2014, Harrison County Sheriff’s

      Department Deputy, Michael Andry (“Deputy Andry”), was on duty in

      Palmyra, Indiana. He was patrolling a gas station when he saw a black Honda

      vehicle parked in front of the gas station door. He found the parking of the

      vehicle “odd” because it was “blocking the door completely,” in spite of the fact

      that the parking lot was empty and there were actual parking spots available.

      (Tr. 122). As a result, he called dispatch and requested that the dispatcher

      check the BMV records for the Honda’s license plate. The dispatcher ran the

      license plate and reported to him that the plate’s registration was inactive and

      was associated with a different car, a Mitshubishi.


[4]   Deputy Andry followed the Honda, which had departed the gas station while

      he was checking its records, and activated his lights and siren. The Honda did

      not stop or pull over. Instead, it led Deputy Andry on a chase that lasted for

      fifty minutes and reached speeds of over 100 miles per hour. Eventually,

      Deputy Andry followed the Honda onto a street that he knew was a dead end.

      He exited his vehicle, believing that the occupants of the Honda were going to

      attempt to escape on foot. However, the Honda made a u-turn and drove back

      in his direction. As it attempted to get around his police car, Deputy Andry slid

      on some ice on the road, and the Honda ran into him. Deputy Andry fell onto


      Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 3 of 14
      the car’s hood and, as a result of the impact, accidentally discharged his

      firearm. The driver of the Honda, who was later identified as Holloway,

      “revv[ed] the motor up,” and Deputy Andry then intentionally discharged his

      firearm three more times in Holloway’s direction to make him stop the vehicle.

      (Tr. 132). Holloway suffered injuries to both of his hands as a result of the

      gunshots but finally stopped the vehicle.


[5]   Conservation Officer Neal Bouwington (“Officer Bouwington”), who had

      followed Deputy Andry for part of the pursuit, arrived on the scene after the

      shooting. He and Deputy Andry determined that there were three people inside

      of the Honda and arrested all three of them. Officer Bouwington also looked

      into the vehicle and observed that it was a “mess,” although he did not identify

      any specific items or conduct a search. (Tr. 223).


[6]   Subsequently, other officers arrived as backup. Those officers learned the

      identities of the three people who had been in the Honda and became

      concerned, based on their prior knowledge of those individuals, that there might

      be a mobile methamphetamine laboratory in the vehicle. Rachel Kirkham

      (“Kirkham”), one of the passengers, also admitted that “there may be

      something methamphetamine related in the vehicle.” (Tr. 243-44). As a result,

      the officers contacted State Police Detective Paul Andry (“Detective Andry”),

      who was trained to investigate methamphetamine labs.4




      4
          Deputy Andry and Detective Andry are second cousins.


      Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 4 of 14
[7]   When Detective Andry responded to the scene, he saw a glass

      methamphetamine pipe lying in the snow outside of the Honda, which “led

      [him] to believe that methamphetamine might be involved.” (Tr. 238). He

      performed a preliminary search of the vehicle and removed a zipped bag from

      the back of the vehicle. He opened the bag and discovered chemicals

      commonly used to manufacture methamphetamine, but he did not discover an

      active methamphetamine lab. Because the chemicals were not interacting, he

      determined that the Honda was safe to move, and the officers transported it to

      the Sheriff’s Department. At that point, the officers obtained a search warrant

      and inventoried the remaining items in the car. During the inventory, they

      discovered several additional items commonly used in manufacturing

      methamphetamine, including, among other items, pseudophedrine, lithium

      batteries, muriatic acid, Coleman fuel, sulfuric acid, lye, instant cold packs,

      baggies, and a scale. They also found methamphetamine residue on a coffee

      filter, four baggies of methamphetamine, and a baggie containing a substance

      that appeared to be marijuana.


[8]   That same day, February 10, 2014, the State charged Holloway with Class A

      felony attempted murder; Class B felony dealing in methamphetamine; Class D

      felony maintaining a common nuisance; Class D felony possession of chemical

      reagents or precursors with intent to manufacture a controlled substance; Class

      D felony resisting law enforcement; and Class A misdemeanor criminal

      recklessness. The State also alleged that Holloway was an habitual substance




      Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 5 of 14
      offender because he had two or more prior unrelated substance abuse

      convictions.


[9]   A jury trial was held on February 9, 10, and 11, 2016. At trial, Holloway

      objected to the admission of the evidence found in the bag that Detective Andry

      had searched without a warrant. He argued that the search had violated his

      constitutional right to privacy and that the evidence seized as a result of the

      search should be excluded. In response to Holloway’s objection, the trial court

      heard testimony from Detective Andry outside of the presence of the jury.

      Detective Andry testified that he had known the three individuals in the Honda

      from prior investigations. He also testified that he had been working on an

      active investigation that included them when he responded to the instant case.

      As a result, Detective Andrey knew that they had been involved in procuring

      precursors for methamphetamine manufacturing “as recent[ly] as the week

      before” the car chase. (Tr. 242). He testified that this knowledge made him

      afraid that there might be a mobile methamphetamine lab in the car. He

      explained, “When [an officer] told [him] that there had been a pursuit that had

      gone on for a lengthy period of time[,] [he] was concerned that these chemicals

      could be [] potentially explosive.” (Tr. 243). Because there was a danger that

      one of the officers could be injured moving the car if there were an explosion,

      he believed that the car should not be moved until he could inspect its interior

      to make sure none of the chemicals was “in reaction.” (Tr. 243). He also noted

      that there was a risk that evidence would be destroyed if there were an

      explosion.


      Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 6 of 14
[10]   After hearing Detective Andry’s testimony, the trial court overruled Holloway’s

       objection to the admission of the evidence discovered during the search of the

       bag. As a basis for its conclusion, the trial court reasoned that public safety

       concerns justified the search. Then, at the beginning of the next day of the jury

       trial, the trial court again addressed its reasoning for overruling Holloway’s

       motion. It clarified that it thought the search was permissible under the exigent

       circumstances exception to the prohibition on warrantless searches—due to the

       need for officer safety and the potential for destruction of evidence—and under

       the custodial arrest exception.


[11]   At the conclusion of the trial, the jury acquitted Holloway of attempted murder,

       but it found him guilty of the remaining charges. Holloway then pled guilty to

       the habitual substance offender allegation. The trial court sentenced him to

       fourteen (14) years for dealing methamphetamine; one (1) year for maintaining

       a common nuisance; one (1) year for possession of chemical reagents; one (1)

       year for resisting law enforcement; and one (1) year for criminal recklessness,

       with all of the sentences to be served concurrently. The trial court also

       enhanced Holloway’s sentence for dealing methamphetamine by four (4) years

       for his habitual substance offender adjudication, resulting in an eighteen (18)-

       year aggregate sentence. Holloway now appeals his convictions for dealing in

       methamphetamine, maintaining a common nuisance, and possession of

       chemical reagents.




       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 7 of 14
                                                     Decision
[12]   On appeal, Holloway argues that the trial court abused its discretion by

       admitting the evidence of methamphetamine manufacturing chemicals and

       supplies that Detective Andry discovered during his warrantless search of the

       bag in Holloway’s Honda. He argues that the search violated his right to

       privacy under the Fourth Amendment of the United States Constitution and

       Article 1, Section 11 of the Indiana Constitution and, accordingly, the evidence

       discovered in the search should have been excluded. Although the Federal and

       State constitutional provisions have similar structures, their interpretations and

       applications vary. Accordingly, we will address Holloway’s argument under

       each provision separately.


[13]   Preliminarily, though, we note that the trial court has broad discretion to rule

       on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind.

       2016). We review its rulings “‘for abuse of that discretion and reverse only

       when admission is clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights.’” Id. (quoting

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014)). We will not reweigh the

       evidence and will resolve any conflicts in the evidence in favor of the trial

       court’s ruling. Miller v. State, 51 N.E.3d 313, 315 (Ind. Ct. App. 2016), reh’g

       denied. However, the “‘constitutionality of a search or seizure is a question of

       law, and we review it de novo.’” Bradley, 54 N.E.3d at 999 (quoting Kelly v.

       State, 997 N.E.2d 1045, 1050 (Ind. 2013)).



       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 8 of 14
       1. Fourth Amendment

[14]   The Fourth Amendment to the United States Constitution protects persons

       from unreasonable searches and seizures by prohibiting, as a general rule,

       searches and seizures conducted without a warrant supported by probable

       cause. Moore v. State, 49 N.E.3d 1095, 1101 (Ind. Ct. App. 2016), reh’g denied.

       As a deterrent mechanism, evidence obtained in violation of this rule is

       generally not admissible absent evidence of a recognized exception. Id.

       “‘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.’” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct.

       App. 2016) (quoting Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct. App.

       2010), trans. denied). “‘Whether a particular warrantless search violates the

       guarantees of the Fourth Amendment depends on the facts and circumstances

       of each case.’” Weathers v. State, 61 N.E.3d 279, 285 (Ind. Ct. App. 2016)

       (quoting Trotter, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).


[15]   Here, the trial court determined that there were exigent circumstances

       supporting Detective Andry’s warrantless search. We have previously held that

       “‘[t]he warrant requirement becomes inapplicable where the ‘exigencies of the

       situation’ make the needs of law enforcement so compelling that the

       warrantless search is objectively reasonable under the Fourth Amendment.’”

       McDermott v. State, 877 N.E.2d 467, 474 (Ind. Ct. App. 2007) (quoting Holder v.

       State, 847 N.E.2d 930, 936 (Ind. 2006)), trans. denied. Among the well-known

       circumstances that have justified a warrantless search or seizure include entries:

       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 9 of 14
       (1) to prevent bodily harm or death; (2) to aid a person in need of assistance; (3)

       to protect private property; and (4) to prevent actual or imminent destruction or

       removal of incriminating evidence before a search warrant may be obtained.

       Notably, in Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013), our supreme court

       found that there were exigent circumstances to justify a search when, as in the

       instant case, officers suspected the presence of a mobile methamphetamine lab

       in the defendant’s car.


[16]   Holloway argues that the exigent circumstances exception did not apply here

       because Detective Andry and the other officers did not have probable cause to

       believe there was a methamphetamine lab in his car.5 As Holloway argues, we

       have previously noted that “‘while exigent circumstances justify dispensing with

       a search warrant, they do not eliminate the need for probable cause.’”

       Montgomery v. State, 904 N.E.2d 374, 378 (Ind. Ct. App. 2009) (quoting

       Cudworth v. State, 818 N.E.2d 133, 140 (Ind. Ct. App. 2004), trans. denied), trans.

       denied. “‘[I]n an emergency, the probable cause element may be satisfied where

       the officers reasonably believe a person is in danger.’” Id. (quoting United States

       v. Holloway, 290 F.3d 1331, 1338 (11th Cir. 2002), cert. denied). Holloway




       5
         Holloway also argues that the trial court abused its discretion for denying his objection to the admission of
       the evidence on one ground and then later clarifying that it intended to deny the objection on different
       grounds. He asserts that, as a result of the trial court’s inconsistency, we should only address the trial court’s
       original justification for denying the objection. However, we find that the trial court was consistent in its
       conclusion that there were public safety concerns justifying the search. Moreover, we may affirm a trial
       court’s decision regarding the admission of evidence if it is sustainable on any basis in the record. Barker v.
       State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied. Accordingly, the trial court’s basis for admitting the
       evidence is not dispositive.

       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017                          Page 10 of 14
       contends that the officers could not reasonably have believed that there was a

       methamphetamine lab in the car because the car did not smell like a meth lab.


[17]   We conclude that Holloway’s argument is essentially a request for us to

       reweigh the evidence, which we will not do. See Miller, 51 N.E.3d at 315. Even

       if there was not a methamphetamine smell outside of the car, there was

       evidence supporting the officers’ belief that there might be a methamphetamine

       lab in the car. Detective Andry knew the occupants from prior and

       contemporaneous methamphetamine investigations and knew that Holloway

       had purchased precursors for making methamphetamine in the prior week.

       When Deputy Andry attempted to stop Holloway, Holloway led him on a fifty-

       minute chase. Then, Detective Andry found a methamphetamine pipe resting

       on the snow outside of the vehicle when he arrived on the scene. In light of

       these factors, and Detective Andry’s testimony that chemicals in

       methamphetamine manufacturing could be explosive after a fifty-minute-long

       car chase, we conclude that Detective Andry and the other officers involved

       had probable cause to believe that the Honda might contain a mobile

       methamphetamine lab and that bystanders might be in danger. Accordingly,

       we conclude that there were exigent circumstances and, thus, the search did not

       violate Holloway’s rights under the Fourth Amendment.


       2. Article 1, Section 11

[18]   Alternatively, Holloway argues that Detective Andry’s search violated his right

       to privacy under the Indiana Constitution. Like the Fourth Amendment,

       Article I, Section 11 of the Indiana Constitution protects against warrantless

       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 11 of 14
       searches. However, the legality of a search under the Indiana Constitution

       “turns on an evaluation of the reasonableness of the police conduct under the

       totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.

       2005). Reasonableness of a search depends on a balance of: (1) the degree of

       concern, suspicion, or knowledge that a violation has occurred; (2) the degree of

       intrusion the method of the search or seizure imposes on the citizen’s ordinary

       activities; and (3) the extent of law enforcement needs. Id. at 361. It is the

       State’s burden to show that its intrusion into “‘those areas of life that Hoosiers

       regard as private,’” was reasonable under the totality of the circumstances.

       Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting State v. Quirk, 842

       N.E.2d 334, 339 (Ind. 2006)).


[19]   The State argues that Holloway has waived his claim by failing to present an

       independent analysis. Although Holloway cited the Indiana Constitution and

       the Litchfield factors in his brief, he did not provide any analysis of the factors

       independent from his analysis under the Fourth Amendment. As the State

       notes, a defendant cannot invoke analysis of an issue under the Indiana

       Constitution without a separate and independent analysis of the claim. Dye v.

       State, 717 N.E.2d 5, 24 (Ind. 1999). Accordingly, we agree with the State that

       Holloway has waived his state constitutional claim. See Francis v. State, 764

       N.E.2d 641, 647 (Ind. Ct. App. 2002) (holding that failure to provide a separate

       and independent Indiana Constitution analysis results in waiver).


[20]   Waiver notwithstanding, it is clear that Detective Andry’s search was

       reasonable under Article 1, Section 11. Specifically, he had a high degree of

       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 12 of 14
       suspicion that a violation had occurred because he was in the process of

       investigating Holloway in another methamphetamine investigation and knew

       he had purchased precursors the week before; Kirkham, the passenger in the

       Honda, had admitted that “there may be something methamphetamine related

       in the vehicle;” (Tr. 243-44); and he had found a methamphetamine pipe

       outside the vehicle.


[21]   In addition, the intrusion of his search was slight. Holloway had already been

       arrested and transported to the hospital when the search occurred, so it did not

       involve a search of Holloway’s person. Harris v. State, 19 N.E.3d 298, 303 (Ind.

       Ct. App. 2014) (holding that the intrusion of a search was “slight” when the

       defendant was already handcuffed and the search was not an invasive search of

       his person), trans. denied. Moreover, Detective Andry ended his preliminary

       search when he determined that the chemicals in the bag were not interacting

       and, therefore, there was not a safety risk that they would explode. The officers

       did not search the remainder of the vehicle until they had obtained a search

       warrant.


[22]   Finally, law enforcement needs were high. As Detective Andry noted, there

       was a chance that the methamphetamine chemicals were explosive after the

       fifty-minute car chase and could injure officers if they exploded while the car

       was being transported to the station. This created a safety risk for the officers

       and also a risk that the evidence in the car would be destroyed.




       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 13 of 14
[23]   In light of the above factors, we conclude that Detective Andry’s search was

       reasonable and did not violate Holloway’s right to privacy under the Indiana

       Constitution. Because we have also found that the search did not violate the

       Fourth Amendment, we, thus, also conclude that the trial court did not abuse

       its discretion in admitting the evidence discovered as a result of the search.


[24]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 59A01-1604-CR-745 | January 19, 2017   Page 14 of 14
