                                                                         FILED
                                                                  May 26 2016, 9:07 am

                                                                         CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeffrey D. Stonebraker                                    Gregory F. Zoeller
Chief Public Defender                                     Attorney General of Indiana
Clark County Public Defender’s Office
                                                          Monika Prekopa Talbot
Jeffersonville, Indiana                                   Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Sidener                                            May 26, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          10A01-1507-CR-1006
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Vicki L.
Appellee-Plaintiff                                        Carmichael, Judge
                                                          Trial Court Cause No.
                                                          10C04-1402-FC-29



Baker, Judge.




Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016                     Page 1 of 10
[1]   Joseph Sidener appeals his conviction for Burglary, 1 a Class C felony, as well as

      the finding that he is an habitual offender. Sidener argues that law

      enforcement’s use of a GPS tracking device to track the movements of a vehicle

      in which he was a passenger violated his rights under the Fourth Amendment

      to the United States Constitution and Article 1, Section 11 of the Indiana

      Constitution. We find that Sidener may not challenge the constitutionality of

      the search, as he lacked a reasonable expectation of privacy in the vehicle. We

      also find Sidener’s challenges to the sufficiency of the evidence and to the

      State’s amendment of the charging information to be unavailing. Accordingly,

      we affirm the judgment of the trial court.


                                                     Facts
[2]   On January 29, 2014, officers of the Evansville Police Department secured a

      warrant allowing them to place a GPS tracking device on a vehicle belonging to

      the mother of Jeffrey Green and to monitor that vehicle in search of a

      connection to several acts of theft that had been committed in Vanderburgh

      County. Later that evening, officers driving unmarked police cars began

      following the vehicle after the GPS device indicated that it was moving. The

      officers followed the vehicle all the way to Clark County, where the GPS

      indicated that the vehicle was maneuvering in and out of the parking lots of




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016   Page 2 of 10
      businesses at some time between midnight and 1 a.m. The officers believed that

      the driver of the vehicle was casing the businesses in preparation for a burglary.


[3]   Shortly after 1 a.m., Officer Donald Lee Erk saw the vehicle parked in front of

      the About Face Salon. Officer Erk witnessed a person enter the passenger side

      of the vehicle before it left the parking lot. Shortly thereafter, Detective John

      Cox saw the vehicle traveling on the Lewis and Clark Parkway with two

      passengers inside. The officers then went to investigate the About Face Salon

      and found that the glass front door had been shattered and that the alarm was

      sounding. At this point, the officers notified the Clarksville Police Department.


[4]   Officers of the Clarksville Police Department entered the About Face Salon and

      discovered that a computer monitor had been damaged and that the cash

      register had been pried open. The officers found chips of blue paint in and

      around the register. One of the owners of the salon arrived and informed the

      officers that $69 in cash had been taken from the register.


[5]   Clarksville police located and stopped the vehicle on Interstate 65 shortly

      thereafter. Green was driving and Sidener was in the passenger seat. As

      Sidener stepped out of the vehicle, small shards of glass fell from his pant leg.

      The officers noticed a blue crowbar on the passenger-side floor and discovered

      $73 in Sidener’s pocket.


[6]   The State charged Sidener with class C felony burglary and alleged that he was

      an habitual offender. The State later amended the information with regard to

      the habitual offender allegation by changing the dates of commission for two of

      Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016     Page 3 of 10
      the previous crimes that it alleged that Sidener had committed. At the

      beginning of trial, Sidener moved to suppress the information contained on the

      GPS monitor and any reference to it. The trial court denied the motion and

      Sidener later objected to the introduction of the evidence at trial. Following

      trial, the jury found Sidener guilty as charged. The trial court sentenced Sidener

      to eight years for the burglary conviction and enhanced the sentence by four

      years for the habitual offender finding, resulting in a total sentence of twelve

      years. Sidener now appeals.


                                   Discussion and Decision
[7]   Sidener makes three arguments on appeal. He first argues that any evidence

      relating to the GPS monitoring of the vehicle should have been suppressed

      because the search exceeded the scope of the warrant. He also argues that the

      evidence presented was insufficient to support his conviction. Finally, he

      argues that the State should not have been allowed to amend the charging

      information with regard to the habitual offender allegation so close to the start

      of trial.


                       I. Constitutionality of the GPS Search
[8]   Both the United States and Indiana constitutions protect individuals against

      unreasonable searches and seizures by agents of the government. U.S. Const.

      amend. IV; Ind. Const. art. 1, § 11. The United States Supreme Court has held

      that the government’s installation of a GPS device on a vehicle, and its

      subsequent use of that device to track the vehicle’s movements, constitutes a

      Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016     Page 4 of 10
      “search” under the Fourth Amendment.2 United States v. Jones, 132 S.Ct. 945,

      949 (2012). While the search at issue here was conducted pursuant to a valid

      warrant, the officers’ actions may nevertheless be found unconstitutional if they

      exceeded the scope of the warrant. Horton v. California, 496 U.S. 128, 140

      (1990); Conn v. State, 496 N.E.2d 604, 607-08 (Ind. Ct. App. 1986). Sidener

      argues that the officers exceeded the scope of the warrant in this case, as he

      believes that the warrant did not authorize the officers to continue to monitor

      Green’s vehicle outside of Vanderburgh County.


[9]   However, the trial court found that Sidener was merely a passenger—he was

      not the vehicle’s owner, nor did he exercise control over the vehicle—and,

      therefore, he could not challenge the propriety of the search. Tr. p. 23-25.

      Accordingly, the trial court denied Sidener’s motion to suppress the evidence

      obtained as a result of the GPS monitoring and allowed that evidence to be

      introduced at trial. Decisions regarding the admission of evidence are within

      the trial court’s discretion and we review such decisions deferentially. Robinson

      v. State, 5 N.E.3d 362, 365 (Ind. 2014). However, because the trial court’s

      decision in this case concerns the constitutionality of a search, it presents a

      question of law, which we review de novo. Id.




      2
       We can find no case holding that the same conduct constitutes a search under the Indiana Constitution.
      For purposes of our analysis here, we proceed as though such conduct would constitute a search under the
      Indiana Constitution, but we do not decide the issue.

      Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016                         Page 5 of 10
[10]   We agree with the trial court. For Fourth Amendment purposes, a defendant

       may not challenge the constitutionality of a search unless he can demonstrate

       that he had a reasonable expectation of privacy in the place to be searched.

       Minnesota v. Carter, 525 U.S. 83, 90-91 (1998); Rakas v. Illinois, 439 U.S. 128,

       153-55 (1978). As Sidener was only a passenger in the vehicle, he seems to

       acknowledge that he cannot challenge the search under the Fourth

       Amendment. Appellant’s Br. p. 14; see Rakas, 439 U.S. at 155 (passengers who

       had no reasonable expectation of privacy in vehicle in which they were riding

       could not challenge the constitutionality of a search of that vehicle).


[11]   Instead, Sidener relies on the Indiana Constitution, which he believes provides

       broader protection in this case. He points out the analysis under our State’s

       constitution focuses not only on the defendant’s interest in the premises

       searched, but also on his possessory interests in any property seized. Bradley v.

       State, 4 N.E.3d 831, 839 (Ind. Ct. App. 2014).


[12]   At this point, however, Sidener’s argument becomes strained. He attempts to

       distinguish the initial placement of the GPS device, which he apparently

       characterizes as a search of the premises, from the subsequent tracking of the

       GPS device, which he attempts to characterize as a seizure of property.

       Appellant’s Br. p. 15. Although Sidener does little to clarify this point, we

       understand him to mean that the data regarding the vehicle’s whereabouts is his

       “property” that the government “seized” by recording. However, Sidener cites

       to no case that makes any distinction between the placement of a GPS device



       Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016     Page 6 of 10
       and the subsequent tracking of that device, let alone the distinction between

       search and seizure that he proposes.


[13]   This distinction is artificial and makes little sense. The United States Supreme

       Court has made clear that the “installation of a GPS device on a target’s

       vehicle, and its use of that device to monitor the vehicle’s movements,

       constitutes a ‘search.’”3 Jones, 132 S.Ct. at 949 (emphasis added). The Court

       has also made clear that the reason it considers such an action to be a search is

       because “[t]he Government physically occupied private property for the purpose

       of obtaining information.” Id. (emphasis added). The entire purpose of placing a

       GPS device on a vehicle is to obtain information about that vehicle’s

       subsequent movements, and it therefore makes sense that it is the placement of

       the device and the subsequent tracking of that device that constitute the

       “search.” Id.


[14]   Furthermore, even assuming that information regarding the whereabouts of

       Green’s vehicle could be construed as “property” that had been “seized,”

       Sidener has failed to show an interest in it. We take Sidener’s point that

       individuals do not expect the government to monitor their daily movements by

       GPS device, and we acknowledge the constitutional concerns raised by the

       prospect of long-term GPS monitoring. See Jones, 132 S.Ct. at 955 (Sotomayor,




       3
         In his concurring opinion in Jones, Justice Alito noted that “[a] seizure of property occurs when there is
       some meaningful interference with an individual’s possessory interests in that property, and here there was
       none.” Jones, 132 S.Ct. at 958 (Alito, J., concurring) (quotations omitted) (noting that “the GPS did not
       interfere in any way with the operation of the vehicle”).

       Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016                            Page 7 of 10
       J., concurring). However, Sidener’s case does not raise these concerns because

       the government had no interest in Sidener’s movements, nor did it seek to invade

       his privacy. In fact, the officers did not even know that Sidener was a passenger

       until they stopped the vehicle. Accordingly, Sidener has not shown that his

       personal interests were affected by the GPS monitoring of Green’s vehicle and,

       therefore, he cannot challenge the search of the vehicle under the U.S. or

       Indiana constitution.


                               II. Sufficiency of the Evidence
[15]   Sidener next argues that the State did not present sufficient evidence to support

       his class C felony burglary conviction. When considering a challenge to the

       sufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

       We will affirm if the probative evidence and the reasonable inferences drawn

       therefrom could have allowed a reasonable jury to find the defendant guilty

       beyond a reasonable doubt. Id.


[16]   The evidence here indicated that Green’s car was driving around the parking

       lots of businesses in the middle of the night. Tr. p. 60-61. An officer later saw

       the vehicle parked in front of the About Face Salon and witnessed an individual

       get into the passenger side. Id. at 75. After the vehicle drove away, another

       officer saw that there were two people inside of it. Id. at 131. Officers then

       noticed that the salon’s glass door was shattered. Upon entering, they

       discovered that the cash register had been pried open and noticed blue paint


       Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016   Page 8 of 10
       chips around the pry marks. Id. at 178-83. One of the store’s owners arrived

       and informed the officers that $69 was missing from the register. Id. at 213.

       Officers later stopped Green’s vehicle. As Sidener exited from the passenger

       side, the officers noticed small shards of glass fall from his pant leg. Id. at 252-

       53. They also noticed a blue crowbar underneath the passenger-side seat. Id.

       The officers searched Sidener and found a total of $73 in his pockets.


[17]   The question before us is whether a reasonable jury could draw inferences from

       this circumstantial evidence that would establish Sidener’s guilt. Maxwell v.

       State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000). We have no trouble

       concluding that a reasonable jury could have done that here. Sidener’s

       argument to the contrary amounts to a request that we reweigh this evidence,

       which we may not do.


                 III. Amendment of the Charging Information
[18]   Finally, Sidener argues that the trial court erred in allowing the State to amend

       the charging information with regard to the habitual offender allegation. The

       charging information listed five prior felonies that Sidener had allegedly

       committed. On the day before trial, the State amended the dates of commission

       of the first two felonies listed. Appellant’s App. p. 50, 96. Sidener effectively

       argues that this prejudiced his defense because, once these dates were corrected,

       he could no longer argue that they were incorrect.


[19]   Indiana Code section 35-34-1-5 allows the State to amend an indictment or

       information at any time to correct, among other things, “any . . . defect which

       Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016      Page 9 of 10
       does not prejudice the substantial rights of the defendant.” Our Supreme Court

       has squarely addressed the very same issue that Sidener now raises and has held

       that the amendment of dates of commission of crimes in support of an habitual

       offender allegation did not affect a defendant’s substantial rights where “the

       amendments did not preclude [the defendant] from being aware of the crimes

       which the State used to establish his habitual offender status.” Brooke v. State,

       516 N.E.2d 9, 14 (Ind. 1987); see also Hudson v. State, 443 N.E.2d 834, 836-37

       (Ind. 1983). Such is the case here, as only the dates of commission were

       amended; the offenses, cause numbers, and dates of sentencing were

       unchanged. Accordingly, Sidener cannot claim that he was unaware of the

       crimes that the State planned to point to in support of the habitual offender

       allegation and, therefore, his defense was not prejudiced by the amendment.


[20]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016   Page 10 of 10
