                                                             FILED
                                                          May 02 2012, 9:09 am


FOR PUBLICATION                                                  CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

LINDA G. NICHOLSON                              ANGELA N. SANCHEZ
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

LEONDRE WOODSON,                                )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 53A01-1109-PC-466
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MONROE CIRCUIT COURT
                        The Honorable Kenneth G. Todd, Judge
                           Cause No. 53C03-0805-PC-1062


                                       May 2, 2012

                               OPINION - FOR PUBLICATION


BRADFORD, Judge
       Appellant-Petitioner Leondre Woodson appeals from the post-conviction court’s

denial of his petition for post-conviction relief (“PCR”), in which Woodson claims that

he received ineffective assistance of trial counsel. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts underlying this post-conviction proceeding were detailed by this court in

our unpublished disposition of Woodson’s direct appeal:

               On August 27, 2005, Woodson was a passenger in the front seat of a
       rental car that was pulled over for speeding. Woodson and the driver,
       Chinedu Onyeji, were driving to Bloomington. Bloomington Police Officer
       Walter Harris approached the car and asked the driver for his license and
       registration. When Onyeji opened the glove compartment to get the car
       rental agreement, the police officer observed Onyeji push a handgun to the
       side of the glove compartment.
               The police officer subsequently ran an inquiry on the handgun to see
       if it was stolen. He was advised the gun was not stolen and that it had been
       registered to Onyeji and that Onyeji did have a valid permit to carry a
       firearm.
               Further investigation revealed that the car rental agreement indicated
       Onyeji had rented the car and included Onyeji’s signature. The rental
       agreement listed Woodson as an additional driver. Officer Harris stated
       Woodson acknowledged that he was on the car rental agreement as an
       additional driver, that he had paid for the car rental, and that he had driven
       the car. Onyeji told the officer the two were returning from a one-day trip
       to Gary, Indiana. Woodson told the police officer they went to Gary
       because he needed to obtain his birth certificate and an identification card
       and they made stops at the Bureau of Motor Vehicles and at his friend’s
       house.
               Based on the circumstances of the stop, Officer Harris stated he
       suspected Woodson and Onyeji might be involved in drug trafficking.
       Officer Harris noted the two appeared nervous, had paid for a car rental
       with cash, and had taken a one-day trip to Gary. Officer Harris asked
       Onyeji if he could search the trunk of the vehicle, but Onyeji declined to
       allow the search. Officer Harris asked Woodson for permission to search
       the trunk, and Woodson consented to the search.
               The officer opened the trunk and found it to be empty. He then
       opened the spare tire compartment and observed two bags of a white
       powdery substance and a handgun. Subsequent testing showed the bagged

                                             2
       substance was cocaine. The separate amounts weighed 113.96 grams and
       13.34 grams respectively. Woodson denied knowledge of the items.
              Woodson and Onyeji were arrested. During a later statement to the
       police, Onyeji told the police that the gun in the trunk was Woodson’s.
       Woodson was charged with Count I, dealing in cocaine, a Class A felony;
       Count II, possession of cocaine in an amount greater than three grams, a
       Class C felony; Count III, possession of cocaine while in possession of a
       firearm, a Class C felony; and Count IV, possession of a firearm by a
       serious violent felon, a Class B felony

Woodson v. State, No. 53A05-0604-CR-174, slip op. at 1-2 (Ind. Ct. App., Feb. 19,

2007), trans. denied.

       Prior to trial, Woodson filed a motion to suppress the evidence seized from the

rental car. On December 9, 2005, the trial court denied Woodson’s motion to suppress.

During the subsequent trial, Woodson’s trial counsel did not renew any objection to

evidence regarding the items seized from the rental car.       On December 13, 2005,

Woodson was convicted of Class C felony cocaine possession, Class C felony possession

of cocaine while in possession of a firearm, and Class B felony possession of a firearm by

a serious violent felon. The trial court sentenced Woodson to an aggregate sentence of

twenty years of incarceration. On direct appeal, this court ordered Woodson’s possession

of cocaine while in possession of a firearm conviction vacated and affirmed in all other

respects, leaving his aggregate sentence unaffected. See Woodson, No. 53A05-0604-CR-

174, slip op. at 5.

       On May 13, 2008, Woodson filed his pro se PCR petition. On February 10, 2011,

Woodson filed his amended PCR petition. On August 24, 2011, the post-conviction court

denied Woodson’s PCR petition.

                           DISCUSSION AND DECISION

                                            3
                                PCR Standard of Review

       Our standard for reviewing the denial of a PCR petition is well-settled:

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting its
       judgment. The post-conviction court is the sole judge of the evidence and
       the credibility of the witnesses. To prevail on appeal from denial of post-
       conviction relief, the petitioner must show that the evidence as a whole
       leads unerringly and unmistakably to a conclusion opposite to that reached
       by the post-conviction court.… Only where the evidence is without
       conflict and leads to but one conclusion, and the post-conviction court has
       reached the opposite conclusion, will its findings or conclusions be
       disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations

omitted).

            Whether Woodson Received Effective Assistance of Trial Counsel

       We review claims of ineffective assistance of counsel based upon the principles

enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

       [A] claimant must demonstrate that counsel’s performance fell below an
       objective standard of reasonableness based on prevailing professional
       norms, and that the deficient performance resulted in prejudice. Prejudice
       occurs when the defendant demonstrates that “there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different.” A reasonable probability arises
       when there is a “probability sufficient to undermine confidence in the
       outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at

694). Because an inability to satisfy either prong of this test is fatal to an ineffective

assistance claim, this court need not even evaluate counsel’s performance if the petitioner

suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208

(Ind. 1999).

                                             4
       Woodson contends that his trial counsel was ineffective for failing to object at trial

to the admission of evidence related to the search of the rental car, thereby failing to

preserve the issue for direct appeal.      Woodson contends that (1) continued police

detention and investigation beyond writing a traffic ticket violated Article I, Section 11 of

the Indiana Constitution and (2) the record does not support a conclusion that he had

apparent authority to consent to a search of the rental car, rendering the search improper

under the Fourth Amendment to the United States Constitution. Woodson argues that

raising these claims on appeal would have had a reasonable likelihood of success and that

the failure to preserve them therefore prejudiced him.

 A. Whether Continued Detention and Investigation Violated Article I, Section 11

       Woodson contends that Officer Harris’s continued investigation of him and Onyeji

violated Article I, Section 11, of the Indiana Constitution, which provides that

       [t]he 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.

       The Indiana Supreme Court has noted that

              [w]hile almost identical in wording to the federal Fourth
       Amendment, the Indiana Constitution’s Search and Seizure clause is given
       an independent interpretation and application. Mitchell v. State, 745
       N.E.2d 775, 786 (Ind. 2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.
       1999); Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). To determine
       whether a search or seizure violates the Indiana Constitution, courts must
       evaluate the “reasonableness of the police conduct under the totality of the
       circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing
       Moran, 644 N.E.2d at 539). “We believe that the totality of the
       circumstances requires consideration of both the degree of intrusion into the
       subject’s ordinary activities and the basis upon which the officer selected

                                             5
      the subject of the search or seizure.”     Id. at 360.   In Litchfield, we
      summarized this evaluation as follows:

             In sum, although we recognize there may well be other
             relevant considerations under the circumstances, we have
             explained reasonableness of a search or seizure as turning 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
             citizens’ ordinary activities, and 3) the extent of law
             enforcement needs.

      Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

      At the suppression hearing, Officer Harris testified regarding the traffic stop.

According to Officer Harris, he was alone on patrol at approximately 11:30 p.m. when he

pulled the rental car over. Upon receiving Onyeji’s driver’s license from him, Officer

Harris observed Onyeji push aside a handgun when he reached for the registration.

Onyeji had not previously warned Officer Harris of the presence of the handgun. At that

point, Officer Harris pulled his weapon and ordered the duo to place their hands behind

their heads while he called for backup, which arrived approximately four minutes later.

After Woodson and Onyeji were removed from the car, Officer Harris verified with

dispatch that the handgun in the glove compartment was not stolen, which took

approximately three and one-half minutes. Officer Harris had by this point verified that

Onyeji had a permit for the weapon.

      Meanwhile, Officer Harris questioned Onyeji outside the car about where he had

been and was told that the duo had driven to Gary, Indiana, and back that day. Onyeji,

and soon thereafter Woodson, claimed that the purpose of the trip was to retrieve a copy

                                           6
of Woodson’s birth certificate and an identification card so that he could cash a check.

Soon after learning that the handgun was not stolen, Officer Harris was informed by

another police officer that the car was rented, even though Onyeji owned his own vehicle.

At this point, Officer Harris failed to obtain Onyeji’s consent to search the car before

obtaining Woodson’s.      Officer Harris indicated that, in light of his training and

experience, renting a car when one owns one and making a one-day round trip to another

city were possible indicators of narcotics activity.      At some point, Woodson also

indicated that he had paid for the rental car in cash. Finally, Officer Harris observed that

Onyeji was “somewhat nervous during the stop” and that “he was just acting nervous to

[him]” even before the officer drew his weapon. Tr. pp. 42, 43.

       Under the circumstances, Woodson has failed to establish that the police acted

unreasonably in continuing the investigation to the point where they obtained consent to

search the rental car. At all points of the encounter, police were justified in having at

least a reasonably high degree of concern or suspicion that some sort of criminal activity

might be occurring. After the traffic stop, Onyeji seemed nervous to Officer Harris, even

before the officer drew his weapon. Perhaps most significantly, Onyeji’s failure to

inform Officer Harris of the handgun in the glove compartment, at the very least, could

lead a reasonable officer to suspect that he intended to keep its presence concealed,

perhaps because it was illegally possessed or to ensure continued access to it. Moreover,

as we have recognized, “it is not uncommon for drug dealers to carry weapons.”

Swanson v. State, 730 N.E.2d 205, 211 (Ind. Ct. App. 2000), trans. denied. Officer



                                             7
Harris’s detention of the duo at gunpoint was fully justified, not only by officer safety

concerns but by concerns regarding criminal activity.

       Furthermore, what police learned after backup arrived only increased what was

already a reasonable degree of suspicion that criminal activity might be afoot. Police

learned that the car was rented even though Onyeji owned his own vehicle and that the

duo had just returned from a one-day round trip to a relatively far-away city, both of

which were, in Officer Harris’s experience and pursuant to his training, indications of

possible illegal narcotics activity. And, even though Officer Harris learned at some point

that Onyeji’s handgun was legally possessed and not stolen, there remained at least the

possibility that Onyeji might have been concealing it to ensure access to it for use against

the police. We conclude that the police had at least a reasonably high degree of concern

or suspicion that some sort of criminal activity might be occurring.

       The intrusion of the detention before consent was obtained into Woodson’s and

Onyeji’s activities was minimal. The record indicates that the stop had lasted not much

longer than seven and one-half minutes before Officer Harris obtained consent to search

the rental car, most of which time was spent waiting for backup and for receiving

information from dispatch regarding Onyeji’s handgun. There was no invasive search of

either Onyeji’s or Woodson’s person at any point.1               The record also contains no

indication that any personal effects of either occupant, such as luggage or other

containers, were searched at any point. Neither Woodson nor Onyeji was handcuffed or


       1
          The record indicates that Onyeji and Woodson were patted down “for safety purposes” after
their removal from the rental car. Tr. p. 12.


                                                8
otherwise restrained during the initial detention.     We conclude that the seizure of

Woodson and Onyeji prior to obtaining consent and the manner in which it was

conducted were minimally intrusive.

       Finally, we conclude that the needs of law enforcement were great. First, the

obvious need to maintain officer safety was clearly implicated in this case. Officer Harris

discovered very early on the presence of one deadly weapon and expressed the

reasonable concern that “maybe, perhaps, they could have been armed with other

weapons on their persons[.]” Tr. p. 11. As the stop progressed, and indications of illegal

narcotics activity became apparent, the equally obvious need to deter, prevent, and punish

drug trafficking was implicated.    Given the reasonably high degree of suspicion of

criminal activity, the minimally intrusive nature of police conduct prior to obtaining

consent, and the great needs of law enforcement, Woodson has failed to establish that

police detention of him until they obtained consent to search the rental car was

unreasonable under Article I, Section 11. As such, Woodson has failed to carry his

burden to establish that his trial counsel’s failure to preserve the issue for appeal

prejudiced him.

B. Whether Woodson’s Consent to Search was Valid Under the Fourth Amendment

       The Fourth Amendment to the United States Constitution provides that “[t]he 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



                                            9
place to be searched, and the persons or things to be seized.” “The overriding function of

the Fourth Amendment is to protect personal privacy and dignity against unwarranted

intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v.

People of State of Colorado, 338 U.S. 25, 27 (1949) (overruled on other grounds by

Mapp v. Ohio, 367 U.S. 643 (1961)] we recognized ‘(t)he security of one’s privacy

against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’

and ‘basic to a free society.’” Id.

              The Fourth Amendment protects persons from unreasonable search
       and seizure and this protection has been extended to the states through the
       Fourteenth Amendment. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S.
       643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Warrantless searches and
       seizures inside the home are presumptively unreasonable. See Payton v.
       New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
       When a search is conducted without a warrant, the State has the burden of
       proving that an exception to the warrant requirement existed at the time of
       the search. See Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998) (citing
       Brown v. State, 691 N.E.2d 438, 443 (Ind.1998)). One well-recognized
       exception to the warrant requirement is a voluntary and knowing consent to
       search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041,
       36 L.Ed.2d 854 (1973); Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987).

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

       Woodson contends that his consent to the search of the rental car was invalid

because he did not have actual or apparent authority to give such consent.

              It is well established that a third party may consent to the search of
       the premises or property of another if actual authority exists. Establishing
       actual authority requires a showing that there is a sufficient relationship to
       or “mutual use of the property by persons generally having joint access or
       control for most purposes.” [U.S. v.] Matlock, 415 U.S. [164,] 171 & n.7,
       94 S.Ct. 988 [(1974)]. See also Caldwell v. State, 583 N.E.2d 122, 125
       (Ind. 1991). If actual authority cannot be shown, then facts demonstrating
       that the consenting party had apparent authority to consent could prove a
       lawful search. See [Illinois v.] Rodriguez, 497 U.S. [177,] 188-89, 110

                                            10
       S.Ct. 2793 [(1990)]. Under the apparent authority doctrine, a search is
       lawful if the facts available to the officer at the time would “‘warrant a man
       of reasonable caution in the belief’ that the consenting party had authority
       over the premises.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct.
       1868, 20 L.Ed.2d 889 (1968)). See also Logan v. State, 729 N.E.2d 125,
       130 (Ind. 2000); Canaan v. State, 683 N.E.2d 227, 231-32 (Ind. 1997), cert.
       denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). The State
       bears the burden of proving that the third party possessed the authority to
       consent. See Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793.

Krise, 746 N.E.2d at 967.

       Matlock, Rodriguez, and their progeny, however, do not apply here for the simple

reason that those cases, by their plain language, apply to third-party consent, and

Woodson was not a third party. Moreover, to the extent that Woodson requests that we

extend Matlock and Rodriguez to cover consent by second parties, we decline to do so.

We cannot conclude that a defendant still has a reasonable expectation of privacy in a

place or thing he himself has allowed to be searched, assuming, of course, that he ever

had one. “An expectation of privacy gives rise to Fourth Amendment protection where

the defendant had an actual or subjective expectation of privacy and the claimed

expectation is one which society recognizes as reasonable.” Krise v. State, 746 N.E.2d

957, 969 (Ind. 2001) (citing Bond v. U.S., 529 U.S. 334, 338 (2000)). Put another way,

without a reasonable expectation of privacy, there is no interest that is protected by the

Fourth Amendment. Woodson has failed to establish that his consent was invalid, and

has therefore not shown that he was prejudiced by his trial counsel’s failure to preserve

the claim that it was. Woodson has not established that he received ineffective assistance

of trial counsel.

       The judgment of the post-conviction court is affirmed.

                                            11
VAIDIK, J., and CRONE, J., concur.




                                 12
