                                                                              FILED
                                                                         May 29 2019, 10:20 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Glen E. Koch II                                           Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                               Attorney General of Indiana
Martinsville, Indiana                                     Monika Prekopa Talbot
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian E. Hardin,                                          May 29, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2629
        v.                                                Appeal from the Morgan Circuit
                                                          Court
State of Indiana,                                         The Honorable Matthew G.
Appellee-Plaintiff.                                       Hanson, Judge
                                                          Trial Court Cause No.
                                                          55C01-1709-F2-1851



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019                              Page 1 of 19
[1]   Brian E. Hardin appeals his conviction for dealing in methamphetamine as a

      level 2 felony. He raises one issue which we revise and restate as whether the

      trial court abused its discretion in admitting evidence obtained from a vehicle

      located on the premises of a residence for which a search warrant was issued.

      We affirm.


                                       Facts and Procedural History

[2]   In September 2017, Indiana State Police Detective Joshua Allen was involved

      in an investigation into the finance and delivery of methamphetamine in

      Morgan County and surrounding counties. The main target of the investigation

      was Jerry Hall. Intercepted communications from a wiretap brought law

      enforcement’s attention to Hardin.


[3]   On September 26, 2017, Detective Allen completed an affidavit in support of a

      search warrant for Hardin’s residence and asserted in part:


              Surveillance was able to identify Hardin going to and from
              [Hall’s] residence. Surveillance was able to identify Hardin going
              to 5426 Collett Drive East Camby, Morgan County, Indiana.
              Hardin’s vehicle was also seen parked at 5426 Collett Drive East
              Camby, Indiana in the early morning hours of 09.26.20117 [sic].
              This officer was able to identify this vehicle as Hardin’s through
              the Indiana Bureau of Motor Vehicles Information and Hardin
              has been seen driving the vehicle.


              On 09/25/2017, Brian Hardin had conversations with Jerry Hall
              in reference to dealing methamphetamine. Hardin indicated he
              was out dealing methamphetamine and picking up money.
              Hardin’s cellular telephone location put him in the area of
              Martinsville Morgan County Indiana during this conversation.
      Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019        Page 2 of 19
              Brian Hardin has had several intercepted telephone calls
              reference to him being involved in the conspiracy to deal
              methamphetamine with Jerry Hall.


      State’s Suppression Hearing Exhibit 2.


[4]   The court issued a search warrant, which states in part:


              You are therefore AUTHORIZED AND ORDERED, in the
              name of the State of Indiana, with the necessary and proper
              assistance, to enter into (upon) the following described residence,
              to-wit: single story gray sided residence, with a partial brick front,
              and attached garage, and partially covered front porch with the
              numeric 5426 attached located at 5426 Collett Drive East,
              Camby, Morgan County, Indiana . . . .


      State’s Suppression Hearing Exhibit 1.


[5]   Detective Allen, Indiana State Trooper Kent William Rohlfing, Detective Matt

      Fleener, and Indiana State Trooper John Patrick, arrived at Hardin’s residence

      to execute the search warrant around 11 p.m. on September 26, 2017. Officers

      initially cleared the residence for subjects and then began searching for evidence

      and found plastic bags, heat seal bags that contained a crystal substance, digital

      scales, syringes, and two pieces of paper consistent with what Detective Allen

      knew to be a “pay and owe sheet.” Transcript Volume II at 118. At some

      point, Hardin’s girlfriend arrived at the residence and indicated that Hardin was

      picking up food at McDonald’s. Trooper Patrick and Detective Allen left in

      separate vehicles to attempt to locate Hardin.




      Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019            Page 3 of 19
[6]   Trooper Rohlfing observed Hardin arrive in a pickup truck and heard the

      garage door open at the same time as a vehicle pulled into the driveway.

      Trooper Rohlfing heard the door open and heard Detective Fleener identify

      himself as State Police and tell Hardin to show his hands. Hardin backpedaled

      in a quick manner, threw two McDonald’s cups in the air, tripped, fell, kicked

      his arms and legs, and scooted along the ground. Detective Fleener “was able

      to get on top of [Hardin], basically in a full mount position,” and Hardin

      continued to scream and kick. Id. at 74. Hardin eventually was able to spin to

      his stomach and raise himself off the ground. Trooper Rohlfing, who had

      injured his shoulder gaining entry to the residence, placed his foot on the back

      of Hardin’s head and pushed him straight to the ground, stopping the fight.


[7]   Trooper Rohlfing called Trooper Patrick and Detective Allen to inform them

      that Hardin was in custody at the residence, and Trooper Patrick and Detective

      Allen returned to the residence. Meanwhile, other officers located

      approximately $327,000 in cash and over a pound of methamphetamine in

      executing the search warrant on Hall’s residence. Detective Allen performed a

      search of Hardin’s vehicle and found more than 100 grams of

      methamphetamine in a bag underneath the driver’s seat.


[8]   On September 28, 2017, the State charged Hardin with Count I, dealing in

      methamphetamine as a level 2 felony, and Count II, possession of

      methamphetamine as a level 3 felony. On November 2, 2017, the State alleged

      that Hardin was an habitual offender. On April 17, 2018, Hardin filed a motion

      to suppress all evidence seized in the search of his home because “the search

      Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019        Page 4 of 19
       went beyond the scope of items and areas allowed to be searched by the Search

       Warrant . . . and a search of the vehicle which [he] had driven to the scene was

       searched without probable cause or authorization by a search warrant.”

       Appellant’s Appendix Volume II at 21.


[9]    On July 11, 2018, the court held a hearing on Hardin’s motion at which

       Detective Allen testified. On July 18, 2018, the court denied Hardin’s motion

       to suppress. Specifically, the court’s order found that Hardin’s vehicle “rested

       in the driveway and was therefore on the curtilage of the residence” and that

       “the search warrant that only described the residence of [Hardin] authorized the

       search of the vehicle while it remained within the curtilage of the residence.”

       Id. at 61. The court also found that the automobile exception applied to the

       search of the vehicle.


[10]   On September 11, 2018, the court held a bench trial. Hardin’s counsel objected

       to the admission of the evidence found in his vehicle and argued a violation of

       the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution, and

       the court overruled the objection. The court found Hardin guilty of Counts I

       and II, and the State dismissed the habitual offender enhancement. The court

       found that Count II merged with Count I, and sentenced Hardin to twenty-two

       years executed.


                                                    Discussion

[11]   The issue is whether the trial court erred in admitting certain evidence.

       Although Hardin originally challenged the admission of the evidence through a


       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019            Page 5 of 19
       motion to suppress, he now challenges the admission of the evidence at trial.

       Thus, the issue is appropriately framed as whether the trial court abused its

       discretion by admitting the evidence. See Guilmette v. State, 14 N.E.3d 38, 40

       (Ind. 2014). “Because the trial court is best able to weigh the evidence and

       assess witness credibility, we review its rulings on admissibility for abuse of

       discretion and reverse only if a ruling is ‘clearly against the logic and effect of

       the facts and circumstances and the error affects a party’s substantial rights.’”

       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994

       N.E.2d 252, 260 (Ind. 2013)). “[T]he ultimate determination of the

       constitutionality of a search or seizure is a question of law that we consider de

       novo.” Id.


[12]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Id. If the

       foundational evidence at trial is not the same as that presented at the

       suppression hearing, the trial court must make its decision based upon trial

       evidence and may consider hearing evidence only if it does not conflict with

       trial evidence. Guilmette, 14 N.E.3d at 40 n.1.


[13]   Hardin raises arguments under: (A) the Fourth Amendment of the United

       States Constitution; and (B) Article 1, Section 11 of the Indiana Constitution.


       A. Fourth Amendment


[14]   Under the Fourth Amendment to the U.S. Constitution, “[t]he right of the

       people to be secure in their persons, houses, papers, and effects, against

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019            Page 6 of 19
       unreasonable searches and seizures, shall not be violated.” U.S. CONST.

       amend. IV. The United States Supreme Court has held:


               A lawful search of fixed premises generally extends to the entire
               area in which the object of the search may be found and is not
               limited by the possibility that separate acts of entry or opening
               may be required to complete the search. Thus, a warrant that
               authorizes an officer to search a home for illegal weapons also
               provides authority to open closets, chests, drawers, and
               containers in which the weapon might be found. A warrant to
               open a footlocker to search for marihuana would also authorize
               the opening of packages found inside. A warrant to search a
               vehicle would support a search of every part of the vehicle that
               might contain the object of the search. When a legitimate search
               is under way, and when its purpose and its limits have been
               precisely defined, nice distinctions between closets, drawers, and
               containers, in the case of a home, or between glove
               compartments, upholstered seats, trunks, and wrapped packages,
               in the case of a vehicle, must give way to the interest in the
               prompt and efficient completion of the task at hand.


       United States v. Ross, 456 U.S. 798, 820-821, 102 S. Ct. 2157, 2170-2171 (1982).


[15]   In Sowers v. State, 724 N.E.2d 588, 590 (Ind. 2000), cert. denied, 531 U.S. 847,

       121 S. Ct. 118 (2000), the Indiana Supreme Court addressed “whether the

       Fourth Amendment permits police officers who secure a lawful warrant for a

       residence at a specific address to search a tent in the backyard of that dwelling.”

       The Court observed that the United States Supreme Court had explained that

       the purpose of the requirement in the Fourth Amendment prohibiting the

       issuance of any warrant except upon particularly describing the place to be

       searched and the persons or things to be seized was the prevention of general or

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019          Page 7 of 19
wide-ranging exploratory searches. 724 N.E.2d at 589 (citing Maryland v.

Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013 (1987)). The Court noted that “[i]t is

sufficient that a warrant describe the place to be searched in terms that an

officer ‘can with reasonable effort ascertain and identify the place intended.’”

Id. (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414 (1925)). The

Court held:


        In Ross, the Supreme Court held that “a warrant that authorizes
        an officer to search a home for illegal weapons also provides
        authority to open closets, chests, drawers, and containers in
        which the weapon might be found.” 456 U.S. at 821, 102 S. Ct.
        2157. We agree with the courts that conclude the same
        reasoning applies to the yard and outbuildings of a single
        residence. As the Ninth Circuit put it:

            We are unable to identify a privacy based reason why this
            principle should be restricted to the inside of a residence and
            stop at the residence’s threshold to the backyard, or
            curtilage. If a search warrant specifying only the residence
            permits the search of ‘closets, chests, drawers, and
            containers’ therein where the object searched for might be
            found, so should it permit the search of similar receptacles
            located in the outdoor extension of the residence . . . .

        United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996). The
        Ninth Circuit further observed, correctly as far as we can
        determine, that “[e]very published opinion addressing the issue
        has concluded that a warrant authorizing the search of a
        residence automatically authorizes a search of the residence’s
        curtilage.” Id.

        Every value furthered by the Fourth Amendment remains intact
        if a proper warrant for the search of a single residence also
        permits a search of the yard or curtilage at the designated

Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019              Page 8 of 19
        address. The proper procedures to invoke judicial supervision
        have been followed, and a proper justification for the intrusion
        has been established. The only issue is whether a warrant is
        overbroad in its geographic scope or intentionally restricted to a
        house itself. Neither is true here, given the designation of the
        property to be searched as a “residence” at a single specified
        address.

        Finally, the authorities seem unanimous in permitting similar
        searches. “Curtilage” originally appears to have meant the area
        within a fence surrounding a structure, but is now used in this
        context without regard to whether what is usually termed the
        “yard” is fenced or not. See, e.g., United States v. Brown, 822 F.
        Supp. 750, 754 (M.D. Ga. 1993), aff’d, 50 F.3d 1037 (11th Cir.
        1995) (table) (“The search warrant in this case authorized
        intrusion into the area of highest expectation of privacy. It seems
        logical and reasonable that a search warrant that authorizes
        intrusion on this greater area of privacy would include
        authorization for intrusion in the lesser area of privacy, the
        backyard.”); Barton v. State, 161 Ga. App. 591, 288 S.E.2d 914,
        915 (1982) (observing that “‘[p]remises’ contemplates the entire
        living area used by occupant” and upholding search of a shed
        twenty feet behind the house); State v. Basurto, 15 Kan. App. 2d
        264, 807 P.2d 162, 165 (1991), aff’d, 249 Kan. 584, 821 P.2d 327
        (1991) (upholding search of a shed in the backyard of a residence,
        observing “[t]here appears to be little doubt that a search warrant
        which describes only the residence of a defendant will authorize
        the search of any vehicles or buildings within the ‘curtilage’ of
        that residence”); State v. Vicars, 207 Neb. 325, 299 N.W.2d 421,
        425-26 (1980) (upholding search of calf shed located on the other
        side of a chain link fence and 100 feet from residence); State v.
        Trapper, 48 N.C. App. 481, 269 S.E.2d 680, 684 (1980) (holding
        that a warrant for search of house trailer also permitted search of
        tin shed approximately thirty feet from trailer); State v. Stewart,
        129 Vt. 175, 274 A.2d 500, 502 (1971) (upholding search of a tree
        located in the backyard of a residence).


Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019             Page 9 of 19
                Like the barn, garage, shed, and tree in the cited cases, Sowers’
                tent was a structure within the curtilage of a dwelling for which
                the police secured a valid search warrant. As a result, when
                police obtained a valid warrant to search the residence at 801
                West Neely Street, they were also authorized to search the tent in
                the backyard of the residence. The search of Sowers’ tent and the
                seizure of items found in the tent did not violate the Fourth
                Amendment under these curtilage cases. We see no reason to
                disagree with these authorities and find no defect in a search that
                was properly authorized. Indeed, a police officer specifically
                advised the issuing judicial official that Sowers was in a tent in
                the backyard of the residence.


       Id. at 590-591.


[16]   Hardin concedes that “[a] proper warrant for search of a single residence also

       allows a search of the yard or curtilage of the designated address” and that “the

       front porch, side garden, or yard, or a driveway is an area properly considered

       as part of curtilage.” Appellant’s Brief at 10-11. Hardin does not challenge the

       trial court’s finding that he parked his vehicle within the curtilage. 1 Rather, he

       appears to focus his argument on the idea that the search warrant did not

       explicitly list the vehicle.




       1
         Without citation to the record, Hardin asserts that “the vehicle was not on the premises during the
       execution of the Search Warrant” and that “Hardin was not near the vehicle when he drove it up.”
       Appellant’s Brief at 14. Hardin does not develop a cogent argument regarding these assertions. Further, he
       asserts that the automobile exception does not apply and cites Collins v. Virginia, 138 S. Ct. 1663 (2018). In
       Collins, the Supreme Court addressed “whether the automobile exception justifies the invasion of the
       curtilage” and declined “Virginia’s invitation to extend the automobile exception to permit a warrantless
       intrusion on a home or its curtilage.” 138 S. Ct. at 1671, 1673.

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019                                  Page 10 of 19
[17]   While Hardin asserts that Indiana courts have not considered the question of

       whether a vehicle located on the premises falls within the scope of a search

       warrant when the vehicle is not mentioned in the warrant, the State points to

       State v. Lucas, 112 N.E.3d 726 (Ind. Ct. App. 2018). In Lucas, Lafayette Police

       Sergeant Matthew Gard obtained a search warrant for Lucas’s home which

       provided for a search of the home with an attached two car garage for evidence

       relating to an assault and/or theft. 112 N.E.3d at 728. During the execution of

       the warrant, Sergeant Gard found a black vehicle in the garage, looked inside,

       saw a large mound in the back seat which had been covered by a blanket,

       reached inside a partially opened window, and moved the blanket to reveal a

       large paper bag containing what Sergeant Gard suspected was synthetic

       marijuana. Id. The trial court granted Lucas’s motion to suppress, ruling in

       relevant part “that the officer’s entry into the vehicle and moving of the blanket

       exceeded the scope of the warrant and all evidence seized as a result of said

       action is suppressed.” Id. at 729.


[18]   On appeal, we observed that it appeared that Indiana state courts had not

       decided the precise issue of whether the Fourth Amendment permits an officer

       who has procured a search warrant for a home and garage to also search any

       vehicles found on the premises. Id. at 730. We noted that the Seventh Circuit

       had held that, “while a vehicle is less fixed than a closet or cabinet, it is ‘no less

       fixed than a suitcase or handbag found on the premises, both of which can

       readily be searched under Ross if capable of containing the object of the search.”

       Id. (quoting United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985)). We


       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019            Page 11 of 19
       stated that, “[o]bserving the trend in other jurisdictions upholding such

       searches, the Percival court held that ‘a search warrant authorizing a search of

       particularly described premises may permit the search of vehicles owned or

       controlled by the owner of, and found on, the premises.’” Id. (quoting Percival,

       756 F.2d at 612). We observed that Percival has subsequently enjoyed support

       in our federal circuit and district courts. Id. (citing United State v. Evans, 92 F.3d

       540, 543 (7th Cir. 1996) (search of trunk of vehicle in attached garage pursuant

       to warrant for house “with detached garage”), cert. denied 519 U.S. 1020, 117 S.

       Ct. 537 (1996); United States v. Rivera, 738 F. Supp. 1208, 1218 (N.D. Ind. 1990)

       (search of truck in driveway pursuant to warrant for home’s premises)). We

       acknowledged that Hoosiers have a heightened expectation of privacy in their

       vehicles, but found the reasoning of the Seventh Circuit in Percival to be

       persuasive and held that, under the Fourth Amendment, a search warrant

       authorizing a search of a particularly described premises permits the search of

       vehicles owned or controlled by the owner of, and found on, the premises. Id.


[19]   In light of the foregoing, we conclude that the search of Hardin’s vehicle did not

       violate the Fourth Amendment. See Rivera, 738 F. Supp. at 1218 (holding that,

       “[w]hile the better practice would have been to include a description of the

       defendant’s vehicle in the warrant, such a practice is not mandated in every

       instance by the fourth amendment” and that the search of the defendant’s truck

       in the driveway was within the scope of the search warrant issued for his

       premises); see also WAYNE R. LAFAVE, 2 SEARCH & SEIZURE § 4.10(c) (5th ed.)

       (“Ordinarily, a description in a warrant of a dwelling at a certain place is taken

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019           Page 12 of 19
       to include the area within the curtilage of that dwelling, so that it would cover a

       vehicle parked in the driveway rather than the garage.”). 2


       B. Article 1, Section 11


[20]   Article 1, Section 11 of the Indiana Constitution provides:


                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.


[21]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson

       v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11

       claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d

       1200, 1205-1206 (Ind. 2008), reh’g denied). Generally, “[w]e consider three

       factors when evaluating reasonableness: ‘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




       2
         To the extent Hardin cites State v. Gosch, 339 P.3d 1207 (Idaho Ct. App. 2014), review denied, we find that
       case distinguishable. Unlike in the present case, there was no finding by the trial court in Gosch that the
       vehicle which was searched was within the curtilage of the residence. The court in Gosch ultimately
       concluded that the vehicle in that case was properly searched under the automobile exception to the warrant
       requirement. See 339 P.3d at 1212-1213.

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019                                Page 13 of 19
       extent of law enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d

       356, 361 (Ind. 2005)).


[22]   As for the degree of concern, suspicion, or knowledge that a violation had

       occurred, the record reveals that officers had conducted surveillance of Hardin

       and Hall and had information that Hardin was dealing methamphetamine.

       Regarding the degree of intrusion, Hardin was under arrest and officers had a

       search warrant and searched his vehicle which was parked in his driveway.

       With respect to the extent of law enforcement needs, the record reveals that law

       enforcement gathered information that Hardin was dealing methamphetamine

       and involved in the finance and delivery of methamphetamine in Morgan

       County and surrounding counties. Under the totality of the circumstances, we

       conclude that the search of the vehicle was reasonable and did not violate

       Article 1, Section 11 of the Indiana Constitution.


                                                    Conclusion

[23]   For the foregoing reasons, we affirm Hardin’s conviction.


[24]   Affirmed.


       May, J., concurs.


       Mathias, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019        Page 14 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Brian E. Hardin,                                          Court of Appeals Case No.
                                                                 18A-CR-2629
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Mathias, Judge, dissenting.


[25]   Because I believe that the police search of Hardin’s automobile was improper

       under both the Fourth Amendment and Article 1, Section 11, I respectfully

       dissent.


[26]   Interpreting the Fourth Amendment, the United States Supreme Court has held

       that “[a] lawful search of fixed premises generally extends to the entire area in

       which the object of the search may be found and is not limited by the possibility

       that separate acts of entry or opening may be required to complete the search.”

       United States v. Ross, 456 U.S. 798, 820–21 (1982). This is only common sense.

       The police should not be required to obtain a separate warrant to open a chest

       found inside the home for which they have already obtained a search warrant.
       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019                      Page 15 of 19
[27]   And in Sowers v. State, 724 N.E.2d 588, 590 (Ind. 2000), our supreme court

       noted that “‘[e]very published opinion addressing the issue has concluded that a

       warrant authorizing the search of a residence automatically authorizes a search

       of the residence’s curtilage.’” (quoting United States v. Gorman, 104 F.3d 272,

       275 (9th Cir. 1996)). As the Ninth Circuit put it:


               If a search warrant specifying only the residence permits the
               search of ‘closets, chests, drawers, and containers’ therein where
               the object searched for might be found, so should it permit the
               search of similar receptacles located in the outdoor extension of
               the residence . . . .


       Gorman, 104 F.3d at 275 (quoted in Sowers, 724 N.E.2d at 590). Following this

       reasoning, our supreme court in Sowers held that a warrant authorizing the

       search of a specific residence also authorized the search of a tent located in the

       backyard:


               Like [a] barn, garage, shed, and tree . . . , Sowers’ tent was a
               structure within the curtilage of a dwelling for which the police
               secured a valid search warrant. As a result, when police obtained
               a valid warrant to search the residence . . . , they were also
               authorized to search the tent in the backyard of the residence.


       Sowers, 724 N.E.2d at 591. But our supreme court has never extended this to

       include the search of an automobile located on the premises of the residence

       authorized to be searched.


[28]   A panel of this court took that step in State v. Lucas, 112 N.E.3d 726, 730 (Ind.

       Ct. App. 2018), which held that “a search warrant authorizing a search of a

       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019         Page 16 of 19
       particularly described premises permits the search of vehicles owned or

       controlled by the owner of, and found on, the premises.” I believe this is a step

       too far, at least under the circumstances of the present case.


[29]   As stated by Professor LaFave, the analogy between an automobile and other

       chattel located on a premises is “less than perfect.” Wayne R. LaFave, Search

       & Seizure § 4.10(c) (Update 2018).


               Certainly a vehicle, even one parked in a garage, has a lesser
               connection with the premises than “desks, cabinets, closets and
               similar items,” and thus one might question whether a showing
               of probable cause as to certain premises should inevitably be
               deemed to cover a vehicle (even of the occupant) that happens to
               be parked on the property at the time the warrant is served. . . .
               Moreover, it must be remembered that the Fourth Amendment
               requirement of particularity varies to some degree by what is
               reasonably practicable. A requirement that warrants for premises
               describe not only the premises generally but every conceivable
               hiding place therein would impose an intolerable burden; by
               comparison, it would seem relatively easy to include a description of the
               occupant’s vehicle in the warrant if the warrant were intended to extend
               to the car.


       Id. (emphasis added) (footnotes omitted). I too believe that, if the police wish to

       search a vehicle located on a residence, they should simply include this request

       in the application for a search warrant. This is not an unreasonable burden.


[30]   More importantly, I believe that the search of Hardin’s automobile was

       unreasonable under Article 1, Section 11 of the Indiana Constitution. As

       acknowledged by the majority, Indiana courts interpret Article 1, Section 11


       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019               Page 17 of 19
       independently from the Fourth Amendment, despite their textual similarities.

       Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014). Under Article 1, Section 11,

       the State must show that the police conduct was reasonable under the totality of

       the circumstances. Id. Our supreme court has directed us to consider three

       factors when determining whether the police conduct was reasonable: (1) the

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

       degree of intrusion the method of search or seizure imposes on the ordinary

       activities of the subject of the search; and (3) the extent of law enforcement

       needs. Id.


[31]   Here, I agree with the majority that the first factor weighs in favor of

       reasonableness. The police had strong evidence that Hardin was dealing in

       methamphetamine. However, with regard to the second factor, the degree of

       intrusion is relatively high. Although Hardin was already in custody, the police

       fully searched his automobile. As our supreme court has stated before:

       “‘Hoosiers regard their automobiles as private and cannot easily abide their

       uninvited intrusion[.]’” Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005)

       (quoting Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995)). The search of an

       automobile based on a warrant that makes no mention of the curtilage, much

       less of an automobile parked on the curtilage, constitutes a high degree of

       intrusion. Lastly, with regard to the needs of law enforcement, I disagree with

       my colleagues and believe that this factor weighs heavily against a finding of

       reasonableness. I acknowledge that the police had information that Hardin was

       involved with the delivery and the financing of delivery of methamphetamine in


       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019           Page 18 of 19
       Morgan and surrounding counties. But at the time of the search of the vehicle,

       Hardin was already in custody, and the police had gathered enough evidence to

       obtain a search warrant. It would have been a minimal burden for the police to

       have secured the car and quickly obtained a warrant to search the vehicle.


[32]   In short, I am of the opinion that the police acted unreasonably by searching

       Hardin’s vehicle simply because he drove it into the driveway of his home while

       a search warrant was being executed at the home, especially when he was

       immediately taken into custody. It would have been simple for the police to

       have obtained another warrant authorizing the search of the vehicle. But they

       did not, and I honor the distinction between homes and motor vehicles for

       purposes of search and seizure. I therefore believe that the search of the vehicle

       was unreasonable and therefore contrary to Article 1, Section 11 of the Indiana

       Constitution. And I respectfully dissent from the majority’s holding otherwise.




       Court of Appeals of Indiana | Opinion 18A-CR-2629 | May 29, 2019         Page 19 of 19
