                                                                               FILED
                                                                          Dec 05 2016, 8:28 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      James A. Edgar                                            Gregory F. Zoeller
      J. Edgar Law Offices, Prof. Corp.                         Attorney General of Indiana
      Indianapolis, Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Andre Anderson,                                           December 5, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1511-CR-1947
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Shatrese M.
      Appellee-Plaintiff.                                       Flowers, Judge
                                                                The Honorable David Seiter,
                                                                Commissioner
                                                                Trial Court Cause No.
                                                                49G20-1409-F5-44249



      May, Judge.


[1]   Andre Anderson appeals the admission at trial of a handgun found pursuant to

      a search of his car following his arrest. We reverse.




      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016                  Page 1 of 9
                                Facts and Procedural History
[2]   On September 18, 2014, Anderson was pulled over by Indianapolis

      Metropolitan Police Department (“IMPD”) Officer Cory Heiny after Officer

      Heiny ran the license plate on the car and discovered its owner, Anderson, had

      an outstanding warrant for strangulation and his driving privileges were

      suspended. After confirming the driver was Anderson, Officer Heiny requested

      he step out of the vehicle. Anderson did so but not before removing his jacket.

      Officer Heiny found Anderson’s removal of his jacket to be “uncommon.” (Tr.

      at 34.)


[3]   Officer Heiny handcuffed Anderson and “placed [him] on the median between

      [two police cars].” (Id. at 28.) Officer Heiny then returned to Anderson’s car

      and searched it before having it towed “because the vehicle was impeding

      traffic.” (Id. at 12.) When Officer Heiny picked up Anderson’s jacket, he

      noticed it was heavy, so he searched the pockets. Officer Heiny discovered a

      loaded handgun in the pocket. Anderson did not have a license to carry it.


[4]   The State charged Anderson with Class A misdemeanor carrying a handgun

      without a license 1 and Level 5 felony carrying a handgun without a license. 2

      Anderson filed a motion to suppress the handgun. The trial court denied the

      motion. At trial, Anderson objected to the admission of the handgun but the




      1
          Ind. Code § 35-47-2-1 (2014).
      2
          Ind. Code § 35-47-2-1(e)(2)(A) (2014).


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016   Page 2 of 9
      objection was overruled. The trial court found Anderson guilty and imposed a

      three-year sentence.



                                 Discussion and Decision
[5]   Anderson did not seek interlocutory review of the denial of his motion to

      suppress but instead appeals following trial. This issue is therefore

      “appropriately framed as whether the trial court abused its discretion by

      admitting the evidence at trial.” Washington v. State, 784 N.E.2d 584, 587 (Ind.

      Ct. App. 2003). Our standard of review of rulings on the admissibility of

      evidence is essentially the same whether the challenge is made by a pre-trial

      motion to suppress or by trial objection. Lundquist v. State, 834 N.E.2d 1061,

      1067 (Ind. Ct. App. 2005). We do not reweigh the evidence, and we consider

      conflicting evidence most favorable to the trial court’s ruling. Id. However, we

      must also consider the uncontested evidence favorable to the defendant. Id.


[6]   “Although a trial court’s determination of historical facts is entitled to

      deferential review, we employ a de novo standard when reviewing the trial

      court’s ultimate determination of reasonable suspicion and probable cause.”

      Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.


              In other words, when a trial court has admitted evidence alleged
              to have been discovered as the result of an illegal search or
              seizure, we generally will assume the trial court accepted the
              evidence presented by the State and will not reweigh that
              evidence, but we owe no deference as to whether that evidence
              established the constitutionality of a search or seizure.


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016   Page 3 of 9
      Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2014), trans. denied.


[7]   In his “Field Arrest Report,” Officer Heiny framed the search as a “[s]earch of

      the vehicle incident to arrest.” (Ex. Vol. at 34.) In the Affidavit for Probable

      Cause, Officer Heiny refers to the search as “an inventory of the vehicle prior to

      towing it from the roadway[.]” (App. at 23.) The trial court declared the search

      a “valid search incident to arrest,” (id. at 73), and did not decide whether the

      search was proper as an inventory search.


[8]   The State now argues the trial court did not abuse its discretion by admitting

      the evidence because, regardless of whether the search was an inventory search

      or a search incident to arrest, 3 admission of the handgun did not violate

      Anderson’s rights under the United States Constitution or the Indiana

      Constitution. Thus, we must determine whether the search of Anderson’s car

      was lawful as either a search incident to arrest or an inventory search.


[9]   The Fourth Amendment to the United States Constitution protects people from

      unreasonable searches and seizures. U.S. Const. Amend. IV. The Fourteenth

      Amendment extended to state governments the Fourth Amendment’s

      requirements for constitutionally valid searches and seizures. Figert v. State, 686

      N.E.2d 827, 830 (Ind. 1997). If the search is conducted without a warrant, the




      3
       The State also alleges the “handgun was admissible . . . because Defendant abandoned the jacket.”
      (Appellee’s Br. at 11.) However, it neither provides argument nor cites legal authority in support of this
      assertion. Failure to present a cogent argument results in waiver of the issue on appeal. Hollowell v. State, 707
      N.E.2d 1014, 1025 (Ind. Ct. App. 1999). Thus, we do not consider this argument.

      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016                          Page 4 of 9
       burden is on the State to prove that, at the time of the search, an exception to

       the warrant requirement existed. Vehorn v. State, 717 N.E.2d 869, 875 (Ind.

       1999). One such exception is a search incident to a lawful arrest. White v. State,

       772 N.E.2d 408, 411 (Ind. 2002). Another exception is the inventory search of

       a vehicle. Lewis v. State, 755 N.E.2d 1116, 1125 (Ind. Ct. App. 2001). We will

       address each separately.


                                     Search Incident to Lawful Arrest

[10]   In 1969, the United States Supreme Court held a search incident to arrest is

       justified only “for a search of the arrestee’s person and the area ‘within his

       immediate control’ - construing that phrase to mean the area from within which

       he might gain possession of a weapon or destructible evidence.” Chimel v

       California, 395 U.S. 752, 763 (1969), reh’g denied, abrogation recognized by Davis v.

       U.S., 564 U.S. 229 (2011). Then, in 1981, the U.S. Supreme Court held “when

       a policeman has made a lawful custodial arrest of the occupant of an

       automobile, he may, as a contemporaneous incident of that arrest, search the

       passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454,

       460 (1981), reh’g denied, abrogation recognized by Davis v. U.S., 564 U.S. 229

       (2011). Subsequently, the Court held the search of the passenger compartment

       of a car, incident to the arrest of the car’s driver and sole occupant, was not

       justified when that driver “could not have accessed his car to retrieve weapons

       or evidence at the time of the search[.]” Arizona v. Gant, 556 U.S. 332, 335

       (2009).



       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016   Page 5 of 9
[11]   Despite that controlling precedent, the State asserts we should follow DeLong v.

       State, 670 N.E.2d 56 (Ind. Ct. App. 1996). When being arrested, DeLong asked

       to remove his jacket and he then placed it on the trunk of the police car. As an

       officer was in the process of returning the jacket to DeLong’s girlfriend, “he felt

       a hard, cylindrically shaped object in [it.]” Id. at 57. At that point, the officer

       searched the jacket incident to arrest, and we upheld that search as justified.

       However, DeLong is factually distinguishable. DeLong’s jacket was on the

       trunk of the police car and needed to be given to DeLong’s girlfriend before the

       officers could depart the scene with DeLong, and in the process, the officer felt

       something suspicious. Here, the officers entered Anderson’s car in order to

       search the jacket. As that entry was prohibited by Gant, we decline to follow

       DeLong.


[12]   As the U.S. Supreme Court has not spoken on this issue since Gant, we are

       constrained to hold in accordance therewith that the search of Anderson’s

       jacket incident to his arrest was unconstitutional because the police unlawfully

       entered the passenger compartment of Anderson’s car to access the jacket. 4 See

       Gant, 556 U.S. at 335.




       4
         As we find the search unconstitutional under the Fourth Amendment, we need not address Anderson’s
       argument based on the Indiana Constitution. See Holly v. State, 918 N.E.2d 323, 325 n.2 (Ind. 2009) (where
       search violates federal constitution, state constitution analysis is unnecessary).

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016                      Page 6 of 9
                                                Inventory Search

[13]   U.S. Constitution Fourth Amendment and Indiana Constitution Article 1,

       Section 11 questions require independent analyses but both hinge on

       reasonableness – the State must prove inventory searches are reasonable under

       either analysis. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). We consider

       the “evidence favorable to the trial court’s decision” and “any uncontested

       evidence favorable to the appellant.” Fair v. State, 627 N.E.2d 427, 434 (Ind.

       1993). We will not overturn the court’s ruling unless it is clearly erroneous. Id.

       “The ultimate determination of reasonableness, however, is not a factual

       finding but a constitutional legal question meriting independent consideration.”

       Id.


[14]   The police are authorized under their community caretaking function to

       impound vehicles. See Wilford, 50 N.E.3d at 375 (caretaking function allows

       impoundment when vehicle is “abandoned and obstruct[s] traffic, create[s] a

       nuisance, or invite[s] thieves and vandals). However, when impounding a

       vehicle, the officer must act “according to standard criteria and on the basis of

       something other than suspicion of evidence of criminal activity.” Fair, 627

       N.E.2d at 432 (quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)).

       “Otherwise, community-caretaking impoundments could too readily be used

       ‘for a general rummaging in order to discover incriminating evidence’ under the

       pretext of an administrative inventory.” Id. at 435 (quoting Florida v. Wells, 495

       U.S. 1, 4 (1990)). In order for the warrantless impoundment of a vehicle to be

       reasonable, the Indiana Supreme Court has established a two-prong standard:

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016   Page 7 of 9
       “(1) that the belief that the vehicle posed some threat or harm to the community

       or was itself imperiled was consistent with objective standards of sound

       policing, and (2) that the decision to combat that threat by impoundment was in

       keeping with established departmental routine or regulation.” Id. at 433

       (internal citations omitted). Both prongs must be satisfied – if the State cannot

       meet one, we need not consider the other. Wilford, 50 N.E.2d at 376.


[15]   Anderson does not argue that the impoundment of his car was unlawful.

       Instead, he asserts the search did not comply with the police department’s

       policy because no inventory was produced. Therefore, we shall focus on the

       second prong of the standard.


[16]   Officer Heiny testified he “did a [sic] inventory search of the vehicle because the

       vehicle was impeding traffic and the vehicle was going to be towed incident to

       arrest.” (Tr. at 12.) The State offered into evidence Indianapolis Metropolitan

       Police Department’s policy on “Towing/Impounding Vehicles.” 5 (Ex. Vol. at

       13.) Under Section IV(A), the policy requires the officer conducting the

       inventory search to make a “detailed listing of any property found in the

       vehicle,” (id. at 17), and Section IV(B) of the policy requires the officer to list all

       property in his or her personal notebook. (Id. at 18.) Officer Heiny testified he

       signed a property slip, but the State did not admit any such slip into evidence.




       5
        The policy states, under Section I(A)(11) Procedure, that a vehicle may be towed if it is “[o]wned or
       operated by person under custodial arrest for any charge.” (Ex. Vol. at 14).

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016                        Page 8 of 9
       Officer Heiny also testified he had not made a recorded list and he did not have

       a list in his notebook.


[17]   While the police department has a procedure in place to tow vehicles, nothing

       produced at trial demonstrates Officer Heiny followed that procedure. This

       search, therefore, does not fall within the inventory search exception because

       Officer Heiny did not follow procedures set out by the Indianapolis

       Metropolitan Police Policy. See Friend v. State, 858 N.E.2d 646, 652 (Ind. Ct.

       App. 2006) (to comply with reasonableness standards, an inventory search must

       comply with “standard police procedures”). 6



                                                  Conclusion
[18]   The search of Anderson’s jacket was not lawful as a search incident to arrest or

       an inventory search; thus, the trial court abused its discretion when it admitted

       the handgun into evidence. Accordingly, we reverse Anderson’s conviction of

       Level 5 felony carrying a handgun without a license with a prior conviction.


[19]   Reversed.


       Baker, J., and Brown, J., concur.




       6
        We decline to address the State’s inevitable discovery argument because it does not apply under the Indiana
       constitution. See Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002), (“inevitable discovery rule is not
       applicable under Article 1, Section 11 of the Indiana Constitution”), trans. denied.



       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1947 | December 5, 2016                        Page 9 of 9
