                                                                                 Feb 03 2015, 10:10 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Heath Y. Johnson                                           Gregory F. Zoeller
      Suzy St. John                                              Attorney General of Indiana
      Johnson, Gray & MacAbee
                                                                 Larry D. Allen
      Franklin, Indiana
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      ANTONIO GARCIA,                                           February 3, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1402-CR-61
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Jose D. Salinas,
      STATE OF INDIANA,                                         Judge
      Appellee-Plaintiff                                        Case No. 49G14-1208-FD-54147




      Crone, Judge.


                                              Case Summary
[1]   Antonio Garcia appeals his conviction for class D felony possession of a

      schedule III controlled substance (a hydrocodone/acetaminophen pill). He

      argues that the pill found in a container discovered in his pants pocket during a

      search incident to arrest was taken in contravention of his state constitutional


      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                           Page 1 of 10
      right against unreasonable search and seizure and was therefore inadmissible.

      Specifically, he contends that even though he was lawfully arrested and the

      search of his person incident to arrest was reasonable, it was unreasonable for

      the police to open the container. We conclude that the search of the container

      was unreasonable under the Indiana Constitution, and therefore the pill was

      inadmissible. Accordingly, we reverse Garcia’s conviction.


                                  Facts and Procedural History1
[2]   On August 6, 2012, just before 9:00 p.m., Indianapolis Metropolitan Police

      Officer Philip Robinett saw Garcia driving a white Chevrolet Trailblazer.

      Although it was dusk, Garcia did not have the car’s headlights on. Garcia also

      failed to signal when he moved from the travel lane to park along the street.

      Officer Robinett turned on his emergency lights to make a traffic stop. When

      he stopped behind Garcia, Garcia got out of his car. Officer Robinett ordered

      him to get back into the car, and Garcia complied. Officer Robinett

      approached the driver’s side of Garcia’s vehicle and an assisting officer

      approached the passenger side. They saw that Garcia was alone in the car.

      Garcia’s first language is Spanish. Officer Robinett does not speak Spanish.




      1
       We heard oral argument on January 15, 2015, at the Indiana University Robert H. McKinney School of
      Law in Indianapolis. We commend counsel for the quality of their advocacy, and we thank the school for its
      hospitality.

      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                       Page 2 of 10
      Officer Robinett testified that communication was a “little bit more difficult”

      and that there was a “slight language barrier, but based off of hand gestures and

      common questions between the police and citizens, we were able to easily

      navigate through the traffic stop.” Tr. at 32.2 Officer Robinett asked Garcia if

      he had a driver’s license. Garcia did not have a driver’s license, but he gave

      Officer Robinett his Mexican identification card. Officer Robinett searched the

      BMV database with the name on the identification card and found that Garcia

      did not have a valid driver’s license.


[3]   Officer Robinett arrested Garcia for class C misdemeanor driving without a

      license, although he also had the option of issuing a summons for this particular

      offense. Officer Robinett conducted a patdown search of Garcia incident to the

      arrest. He found a small metallic cylinder in Garcia’s left front pants pocket.

      Officer Robinett had seen similar containers many times, “anywhere between

      two to ten times a year” over the previous five years. Id. at 26. In his

      experience, these containers held either illegal substances or properly prescribed

      medication.3 He opened the container and found half a pill with specific




      2
       At trial, Garcia used a translator. He testified that he is fine speaking either English or Spanish, but wanted
      an interpreter for trial because it made him feel more comfortable. Tr. at 38.
      3
        The parties dispute Officer Robinett’s testimony regarding the probability that the container held legal
      drugs. Garcia states that there was a “strong possibility” that the contents of the container were legal.
      Appellant’s Br. at 9. The State asserts that “this kind of container usually carried illegal drug[s].” Appellee’s

      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                             Page 3 of 10
      markings on it indicating that it was hydrocodone/acetaminophen, a schedule

      III controlled substance. Garcia stated in English, “That’s my narcotic for

      pain.” Id. at 29. Officer Robinett did not find a valid prescription for the

      medication on Garcia’s person or in the car.


[4]   The State charged Garcia with class C misdemeanor driving without a valid

      license and class D felony possession of a controlled substance. At trial, Garcia

      moved to suppress the evidence found in the container on the grounds that

      opening the container was unreasonable under the United States and Indiana

      Constitutions. The trial court ultimately denied Garcia’s motion to suppress.

      Garcia testified that he lived with his wife and their nine-year-old son and that

      his wife’s elderly aunt had also lived with them until she died three days before

      his arrest. On the day of his arrest, Garcia cleaned out the aunt’s room and

      found the container. He recognized it as a container for medicine and put it in

      his pocket so that his son would not get it. He forgot that he had it in his pocket

      when he drove the car later that night. Garcia submitted a pharmacy record

      showing that the aunt had a prescription for hydrocodone/acetaminophen pills.




      Br. at 5. Officer Robinett testified as follows: “Every time I’ve either – I’ve located either some type of illegal
      substance or – unless it is a pill that is properly prescribed. That’s the only time I’ve seen it to where the
      substance inside this cylinder is a legal substance.” Tr. at 26-27.

      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                              Page 4 of 10
      The trial court found Garcia guilty as charged. Garcia appeals his felony

      conviction for possession of a schedule III controlled substance.


                                      Discussion and Decision
[5]   Garcia argues that the evidence found in the container was inadmissible

      because opening the container was unreasonable under Article 1, Section 11 of

      the Indiana Constitution. We review a trial court’s ruling on the admissibility

      of evidence “for abuse of [] 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.” Clark v. State, 994 N.E.2d 252, 260 (Ind.

      2013). “We consider the evidence most favorable to the trial court’s decision

      and any uncontradicted evidence to the contrary.” Lee v. State, 916 N.E.2d 706,

      707 (Ind. Ct. App. 2009). When an appellant’s challenge to the admission of

      evidence is based on the argument that the search or seizure of the evidence was

      unconstitutional, it raises a question of law, which we review de novo.

      Guilmette v. State, 14 N.E.3d 38, 41 (Ind. 2014).


[6]   Article 1, Section 11 reads:

              The right of the people to be secure in their persons, houses, papers,
              and effects, against unreasonable search or seizure, shall not be
              violated; and no warrant shall issue, but upon probable cause,
              supported by oath or affirmation, and particularly describing the place
              to be searched, and the person or thing to be seized.


[7]   The purpose of Section 11 is to protect the privacy of Indiana citizens from

      unreasonable police activity. State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006).


      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015      Page 5 of 10
      Thus, “[w]e construe Section 11 liberally in favor of protecting individuals from

      unreasonable intrusions on their privacy.” Grier v. State, 868 N.E.2d 443, 444

      (Ind. 2007). Although the language of Section 11 tracks the Fourth

      Amendment of the U.S. Constitution verbatim, “Indiana has explicitly rejected

      the expectation of privacy as a test of the reasonableness of a search or seizure.”

      Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Under the Indiana

      Constitution, the legality of a governmental search “turns on an evaluation of

      the reasonableness of the police conduct under the totality of the

      circumstances.” Id. (citing Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994)).

      Although other factors may exist, the reasonableness of a search or seizure

      turns 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. “We place the burden on the State to show

      that under the totality of the circumstances its intrusion was reasonable.”

      Quirk, 842 N.E.2d at 340.


[8]   Garcia concedes that Officer Robinett had probable cause to arrest him for

      driving without a valid license and that the search of his person incident to

      arrest was reasonable under the Indiana Constitution. Garcia challenges only

      the reasonableness of Officer Robinett’s search of the container itself to discover

      its contents. This issue has been settled under the Fourth Amendment. See

      United States v. Robinson, 414 U.S. 218, 236 (1973) (upholding constitutionality

      of officer’s search of crumpled cigarette package found in defendant’s coat


      Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015   Page 6 of 10
       pocket during search incident to arrest for driving while his license was

       revoked); Klopfenstein v. State, 439 N.E.2d 1181, 1188 (Ind. Ct. App. 1982)

       (Fourth Amendment not violated when officer found Tylenol bottle in plastic

       bag on defendant’s person during search incident to arrest, saw pills in bottom

       of plastic bag, removed pill bottle from bag, opened it, and discovered hashish).


[9]    However, the State acknowledges that Fourth Amendment jurisprudence does

       not dictate the result under the Indiana Constitution.

               [W]hile experience has shown that analysis under the Indiana
               reasonableness standard generally obtains the same result as that of the
               federal Fourth Amendment, it would appear that where a “blanket”
               exception to the warrant requirement has been created for federal
               purposes it is appropriate to effect a different result which is based
               upon the actual considerations at hand according to Indiana’s
               constitutional protections.


       State v. Moore, 796 N.E.2d 764, 770 (Ind. Ct. App. 2003), trans. denied (2004).

       Accordingly, Section 11 requires us to consider the reasonableness of opening the

       container based on the totality of the circumstances.

[10]   In so doing, we apply the Litchfield factors to the search of the container. As for

       the first factor, the degree of concern, knowledge, or suspicion that a criminal

       violation had occurred with respect to the pill vial was low prior to opening the




       Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015       Page 7 of 10
       container.4 As for the degree of intrusion, Garcia contends that it was high

       because “Hoosiers would regard the contents of a pill container as private.”

       Appellant’s Br. at 6. The State asserts that the degree of intrusion was low

       because the opening of the container occurred during a search incident to arrest

       supported by probable cause. Each of these arguments addresses a different

       aspect of the intrusiveness of this kind of search, and they both have merit.


[11]   The next factor to consider is the extent of law enforcement needs. “A search

       incident to arrest serves important purposes, such as ensuring that the arrestee is

       unarmed, preventing the arrestee from bringing contraband into jail, and

       preventing the destruction of evidence.” Edmond v. State, 951 N.E.2d 585, 592

       (Ind. Ct. App. 2011). Garcia argues that “without reasonable concern for

       safety, or a reasonable belief [that] it contained evidence relating to the offense

       [or] arrest that might be destroyed, the extent of law enforcement needs to

       search the metal cylinder was very low.” Id. at 6-7. The State asserts that law

       enforcement needs were significant because even if Officer Robinett suspected




       4
         Because we are examining the reasonableness of opening the container, it would appear that the degree of
       concern, knowledge, or suspicion that a violation occurred should be applied to the container rather than the
       arrest.

       Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                         Page 8 of 10
       that the container held either legal or illegal drugs, he did not know exactly

       what was in it, and unknown objects always pose potential risks.


[12]   Officer Robinett testified that he did not open the container out of safety

       concerns. Throughout the traffic stop and arrest, Garcia was completely

       cooperative. Also, Officer Robinett testified that he was familiar with these

       types of containers and they had always held either illegal or properly

       prescribed medication. Although there could be situations in which the police

       find an unfamiliar object on a person through a search incident to arrest that

       may justify further investigation, that situation did not occur here. There is no

       evidence in the record that Officer Robinett had any concern or suspicion that

       the container held anything that threatened his or the public’s safety.


[13]   As far as discovering or preserving evidence is concerned, the State conceded at

       oral argument that probable cause did not exist to support a warrant to search

       the container. In fact, there is no evidence in the record that would even

       establish reasonable suspicion that Garcia was carrying illegal drugs. He was

       pulled over because he did not have his headlights on at dusk and failed to use

       his turn signal while parking. He was arrested for a class C misdemeanor

       driving offense. Thus, there was no need for law enforcement to preserve

       evidence relating to the offense for which Garcia was arrested. Also, there were

       no circumstances unrelated to the reason for the arrest that led Officer Robinett

       to suspect that Garcia was impaired, had engaged in any illegal drug use, or

       was involved in any illegal drug dealing. Officer Robinett testified that he knew

       that containers like Garcia’s were used to hold properly prescribed drugs. The

       Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015   Page 9 of 10
       simple fact that these containers could also be used to hold illegal substances,

       without more, does not give rise to a reasonable suspicion that Garcia’s

       container held illegal substances. Where there was no reasonable suspicion that

       illegal substances were present, the need of law enforcement to discover and/or

       preserve evidence was nonexistent.5


[14]   In sum, Officer Robinett had no safety concerns to justify opening the container

       and also had no reasonable suspicion that it held any illegal substances. We

       conclude that given the facts of this case, it was unreasonable under the Indiana

       Constitution to open the container found in Garcia’s pants pocket during a

       search incident to arrest. Accordingly, the pill was inadmissible. Therefore, we

       reverse Garcia’s conviction for class D felony possession of a schedule III

       controlled substance.


[15]   Reversed.


       Mathias, J., and Bradford, J., concur.




       5
         Given that the container was seized incident to a lawful arrest and Garcia was being taken to jail and
       booked, it may be that the container could have or would have been seized and opened as part of routine
       booking procedures and inventory purposes. However, the State acknowledges that the container was not
       opened for inventory or booking procedures.

       Court of Appeals of Indiana | Opinion 49A05-1402-CR-61| February 3, 2015                      Page 10 of 10
