      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                 Jun 12 2019, 7:01 am
      court except for the purpose of establishing                                    CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
      estoppel, or the law of the case.                                               and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen Gerald Gray                                      Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Ian McLean
                                                               Tyler G. Banks
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      William C. Kinslow,                                      June 12, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2324
              v.                                               Appeal from the
                                                               Marion Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Shatrese M. Flowers, Judge
                                                               Trial Court Cause No.
                                                               49G20-1703-F2-9698



      Kirsch, Judge.


[1]   William C. Kinslow (“Kinslow”) brings this interlocutory appeal, challenging

      the trial court’s denial of his motion to suppress illegal drugs and weapons

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019                      Page 1 of 11
      found in his vehicle. He raises two issues, which we consolidate and restate as

      whether police violated his rights under the Fourth Amendment to the U.S.

      Constitution or Article 1, Section 11 of the Indiana Constitution when they

      placed electronic tracking devices in a package containing drugs that Kinslow

      later retrieved.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Detective Steven Brinker (“Detective Brinker”) worked for the Indianapolis

      Metropolitan Police Department’s Criminal Interdiction Unit. Tr. Vol. 2 at 8.

      On March 9, 2017, he was at a FedEx facility in Marion County when he

      identified a suspicious package. State’s Ex. 1. This package was addressed to

      Charlie Sims at 3222 North Bancroft Street in Indianapolis. Tr. Vol. 2 at 10.

      Because Detective Brinker believed the package was suspicious, he had a police

      dog perform a free-air sniff of the package, and the dog alerted to the presence

      of drugs. State’s Ex. 1. Detective Brinker applied for a search warrant to open

      the package, which was granted. State’s Ex. 2. Inside of the package, Detective

      Brinker found methamphetamine and marijuana. State’s Ex. 1. He and other

      officers removed most of drugs from the package but left some inside. Tr. Vol. 2

      at 10. Officers also placed a GPS tracking device and a “light sensor device”

      (collectively, “the electronic devices”) inside of the package. Id. The purpose

      of the light sensor device was to detect when the package was opened. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 2 of 11
[4]   At 12:39 p.m. on the same date, an undercover officer delivered the package to

      3222 North Bancroft Street. Id. at 11. At 1:35 p.m., Kinslow arrived at 3222

      North Bancroft and entered the house. Id. He emerged ten minutes later,

      picked up the package, and took it with him as he entered his large SUV. Id.

      While Detective Brinker briefly observed Kinslow, he had several other officers

      track Kinslow. Id. at 12-13. Some officers relayed information to Detective

      Brinker over a covert radio channel, including one officer who was monitoring

      the electronic devices. Id.


[5]   Kinslow drove around Indianapolis, stopping at several locations, until

      approximately 8:00 p.m. State’s Ex. 1; Tr. Vol. 2 at 11-12. The police never lost

      visual contact of Kinslow’s vehicle. Tr. Vol. 2 at 13-14. At approximately 8:00

      p.m., the electronic devices indicated that Kinslow’s vehicle had stopped and

      that the package had been opened. Id. at 14, 22; State’s Ex. 1. Officers saw

      Kinslow step out of his vehicle, walk to a dumpster, and place an item in the

      dumpster, which they later discovered was the GPS device. Tr. Vol. 2 at 14, 22.

      At 8:13 p.m., officers stopped Kinslow and recovered the package. State’s Ex. 1.

      The police also found methamphetamine, marijuana, and a handgun in

      Kinslow’s vehicle. Appellant’s App. Vol. 2 at 16-18.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 3 of 11
[6]   On March 14, 2017, the State charged Kinslow with dealing in

      methamphetamine1 as a Level 2 felony, possession of methamphetamine 2 as a

      Level 3 felony, dealing in marijuana3 as a Level 6 felony, possession of

      marijuana4 as a Level 6 felony, and carrying a handgun without a license5 as a

      Class A misdemeanor. Id. Kinslow filed a motion to suppress evidence, and at

      the hearing on the motion to suppress, Kinslow acknowledged that he was not

      disputing the validity of the warrant that allowed police to originally open the

      package, but he argued that the warrant did not allow the police to search

      anything else. Tr. Vol. 2 at 39-40. The trial court denied the motion to

      suppress. Appellant’s App. Vol. 2 at 13-15. On August 31, 2018, the trial court

      certified its ruling for interlocutory appeal. Id. at 50. On September 26, 2018,

      Kinslow filed a petition for this court to accept jurisdiction, and on November

      2, 2018, we granted that petition. Kinslow now appeals.


                                           Discussion and Decision

                                            I.         Federal Constitution
[7]   Kinslow argues that placing the electronic devices inside the package and

      monitoring his activities through those electronic devices violated his rights




      1
          See Ind. Code § 35-48-4-1.1(a)(2), (e)(1).
      2
          See Ind. Code § 35-48-4-6.1(a), (d).
      3
          See Ind. Code § 35-48-4-10(a)(2), (c)(2)(A).
      4
          See Ind. Code § 35-48-4-11(a)(1), (c).
      5
          See Ind. Code § 35-47-2-1(e).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 4 of 11
      under the Fourth Amendment to the United States Constitution. We review

      the denial of a motion to suppress in a manner similar to reviewing the

      sufficiency of the evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). We

      consider only the evidence favorable to the trial court’s ruling, along with

      uncontradicted evidence to the contrary to decide if the evidence is sufficient to

      support the denial of the motion to suppress. Id. The trial court has broad

      discretion in ruling on the admissibility of evidence, and we will reverse such a

      ruling only upon a showing of an abuse of discretion. Glasgow v. State, 99

      N.E.3d 251, 256 (Ind. Ct. App. 2018). We defer to the trial court’s factual

      determinations unless they are clearly erroneous. Jacobs v. State, 76 N.E.3d 846,

      849 (Ind. 2017). A trial court’s legal conclusions about the constitutionality of a

      search and seizure are reviewed de novo. Id.


[8]   In arguing that placing the electronic devices in the package violated his Fourth

      Amendment rights, Kinslow relies on United States v. Jones, 132 S. Ct. 945

      (2012), in which the U.S. Supreme Court ruled that the government’s

      installation of a GPS device on a suspect’s vehicle constituted a “search” under

      the Fourth Amendment. Id. at 949. Jones did not hold that installation of the

      GPS device violated Jones’s expectation of privacy but instead held that it

      constituted an impermissible trespass. Id. at 950-54.


[9]   Here, Kinslow argues that by placing the electronic devices in the package, the

      police trespassed on his property. Kinslow argues that the officers’ actions also

      constituted a trespass on his vehicle, even though he, not the police, placed the

      package within his vehicle. Finally, even though Jones did not rely on an

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 5 of 11
       expectation-of-privacy analysis, Kinslow cites that as one more ground to

       suppress the contraband found in his vehicle.


[10]   Jones does not apply here because its facts are significantly different from the

       facts in the present case. In Jones, the GPS device was attached to a vehicle

       after the vehicle was already in Jones’s possession, and police tracked Jones’s

       movements for twenty-eight days. Here, however, police placed the electronic

       devices in a package that did not bear Kinslow’s name and tracked his

       movements for only a little over six hours, maintaining continuous visual

       contact with Kinslow’s vehicle. They also placed the electronic devices inside

       the package well before the package came into Kinslow’s possession.

       Therefore, Kinslow’s trespass argument under the Fourth Amendment fails.


[11]   As to Kinslow’s argument that the conduct of the police violated his

       expectation of privacy, we look to Lagrone v. State, 985 N.E.2d 66 (Ind. Ct. App.

       2013), which found no expectation of privacy under facts almost identical to the

       facts here. In Lagrone, personnel from UPS alerted police that they found

       marijuana in a package that they were repackaging because the package was

       damaged. Id. at 69. Police retrieved the package, which was addressed to

       someone other than Lagrone. Id. As they repackaged the marijuana, they

       placed a GPS device and parcel wire inside the package. Id. They took the

       package to the address on the shipping tag, a Wingate Hotel located on the

       northwest side of Indianapolis. Id. at 70. Lagrone picked up the package and

       drove away; police followed him because at the time they did not know



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 6 of 11
       Lagrone’s identity or destination. Id. They tracked Lagrone through both

       visual observation and GPS tracking information. Id.


[12]   A panel of this court ruled that Lagrone had no expectation of privacy in the

       package, and, therefore, the police did not violate Lagrone’s Fourth

       Amendment rights by placing the GPS device and parcel wire into the package.

       Id. at 72-74. We relied on several decisions of the United States Supreme

       Court, including Illinois v. Andreas, 463 U.S. 765 (1983). In that case, the Court

       held that “[n]o privacy interest remains in contraband in a container once

       government officers lawfully have opened that container and identified its

       contents as illegal.” Id. at 771. “The simple act of resealing the container to

       enable the police to make a controlled delivery does not operate to revive or

       restore the lawfully invaded privacy rights.” Id. We also cited United States v.

       Jacobsen, 466 U.S. 109 (1984), where a shipper opened a package, found

       contraband, and then notified law enforcement. The Supreme Court held that,

       “[o]nce the frustration of the original expectation of privacy occurs, the Fourth

       Amendment does not prohibit governmental use of the now-nonprivate

       information.” Id. at 117. Applying that precedent, we held that because UPS

       had opened the package before turning it over to police, any privacy interest in

       the package was lost when it was opened while in the shipper’s possession. See

       Lagrone, 985 N.E.2d at 73. We also concluded that the officers’ subsequent

       repackaging of the package did not revive any privacy interest. See id. (citing

       Jacobsen, 466 U.S. at 117 and Andreas, 463 U.S. at 771).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 7 of 11
[13]   In Lagrone, we also determined that transmission of information from the GPS

       device and parcel wire did not violate Lagrone’s expectation of privacy, relying

       on United States v. Knotts, 460 U.S. 276 (1983). In Knotts, law enforcement

       officers installed a beeper inside a container before delivery was made to the

       addressee. Id. at 277. The beeper signal was tracked on the public roads to the

       location where defendants deposited it outside a building. Id. at 285. Knotts

       held that the warrantless monitoring of the beeper signal by law enforcement

       agents on the public road and outside the building where defendants left it did

       not violate legitimate expectations of privacy. Id.; see also United States v. Karo,

       468 U.S. 705, 721 (1984) (where law enforcement officers installed a beeper

       inside a container and tracked the container via the beeper as defendants drove

       on public roads, monitoring the beeper while the vehicle was on public roads

       did not violate the Fourth Amendment).


[14]   The factual similarities between Lagrone and this case are striking. As in

       Lagrone, police found drugs in the package well before Kinslow possessed the

       package. At that point, any expectation of privacy Kinslow may have had in

       the package evaporated and resealing the package after placing the electronic

       devices in the package did not restore an expectation of privacy. See Andreas,

       463 U.S. at 771. In addition, the use of the electronic devices to monitor the

       movements of Kinslow and the package on public roads did not constitute a

       search. See Knotts, 460 U.S. at 285; Karo, 468 U.S. at 721. Therefore, the police

       did not violate any purported expectation of privacy in the package and in the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 8 of 11
       data from the electronic devices that the police used to track Kinslow and the

       package. Thus, Kinslow’s Fourth Amendment rights were not violated. 6


                                         II.      Indiana Constitution
[15]   Kinslow argues that the warrantless installation of the electronic devices into

       the package and the monitoring of Kinslow’s movements and the status of the

       package was unreasonable under Article 1, Section 11 of the Indiana

       Constitution. Article 1, Section 11 of the Indiana Constitution is interpreted

       and applied independently of the Fourth Amendment. State v. Washington, 898

       N.E.2d 1200, 1205-06 (Ind. 2008) (citing Mitchell v. State, 745 N.E.2d 775, 786

       (Ind. 2001)). The focus of the state constitutional analysis is not on reasonable

       expectations of privacy but on an evaluation of the reasonableness of the police

       conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d

       356, 359-60 (Ind. 1995). To determine the reasonableness of police conduct,

       reviewing courts look at three factors: the degree of suspicion that a crime has




       6
         Kinslow also argues that Carpenter v. United States, 138 S. Ct. 2206 (2018) mandates suppression of the
       evidence. In Carpenter, the FBI obtained location-tracking data about Carpenter, a robbery suspect, for
       12,898 location points, cataloging Carpenter’s movements over 127 days—an average of 101 data points per
       day. Id. at 2212, 2217-18. While the United States Supreme Court found that tracking such information
       violated Carpenter’s expectation of privacy, we read the Court’s holding to apply to records, such as cell-
       phone tracking data, that “hold for many Americans the ‘privacies of life.’” Id. (quoting Riley v. California,
       573 U.S. 373, 403 (2014)). Cell phone location data “provides an intimate window into a person’s life,
       revealing not only his particular movements, but through them his professional, political, religious, and
       sexual associations. Id. at 2217. Because the tracking of Kinslow lasted only approximately six hours and
       because the electronic devices used here do not provide an intimate window into a person’s life, we find that
       Carpenter has no bearing on this case.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019                      Page 9 of 11
       occurred; the degree of intrusion on the citizen’s ordinary activities; and the

       extent of law enforcement needs. Id. at 359-61.


[16]   Kinslow admits that the degree of concern that a crime was committed was

       high. He argues, however, that the needs of law enforcement were minimal

       because the officers had ample time to seek and obtain a search warrant to put

       the electronic devices into the package. He also contends that the degree of

       intrusion was severe, but he does not explain why.


[17]   We reject Kinslow’s claim that placing the electronic devices inside the package

       and monitoring his activities partly through those devices was unreasonable

       under the totality of the circumstances. See Litchfield, 824 N.E.2d at 359. First,

       we need not address the degree of concern that a crime has been committed

       because Kinslow concedes that the degree of concern was high. Second, we

       reject that the degree of intrusion was high. Kinslow was not obstructed in his

       “ordinary activities” until he was arrested. Id. at 360-61. While being

       monitored, he travelled freely to wherever he wanted to travel. Third, the needs

       of law enforcement to place the electronic devices was high. If the officers had

       lost sight of Kinslow, the electronic devices would have prevented the

       methamphetamine and marijuana from being sold, lost, or discarded before the

       police could seize the drugs. As to Kinslow’s argument that the police should

       have obtained a warrant before putting the electronic devices in the package,

       Kinslow fails to acknowledge that the potential delay caused by seeking a

       warrant could have tipped off Kinslow that police had discovered that the

       package contained illegal drugs and would have thus compromised their

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 10 of 11
       important task of enforcing laws regarding the possession and sale of illegal

       drugs. Accordingly, under the totality of the circumstances, the conduct of the

       police was not unreasonable, so the placement of the electronic devices in the

       package and using those devices to track Kinslow and the package did not

       violate Kinslow’s rights under Article 1, Section 11 of the Indiana Constitution.


[18]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2324 | June 12, 2019   Page 11 of 11
