                                                                          FILED
                                                                     Feb 21 2017, 7:51 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Joel C. Wieneke                                           Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Brooklyn, Indiana                                         Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Otis Sams, Jr.,                                           February 21, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                67A01-1604-CR-814
              v.                                                Appeal from the Putnam Circuit
                                                                Court
      State of Indiana,                                         The Honorable Matthew L.
      Appellee-Plaintiff                                        Headley, Judge
                                                                Trial Court Cause No.
                                                                67C01-1502-F3-32



      Mathias, Judge.


[1]   Otis Sams (“Sams”) was convicted in Putnam Circuit Court of Level 4 felony

      possession of methamphetamine. Sams appeals, challenging the warrantless

      search and seizure of the evidence against him. We conclude that the State did




      Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017              Page 1 of 20
      not carry its burden to show that the inventory search of Sams’s truck was

      sufficiently regulated; therefore, we reverse.1


                                    Facts and Procedural History

[2]   February 20, 2015, was a snowy night in Greencastle, Indiana. Late that

      evening or early the next morning, Sams had recently finished work on a home

      remodeling job and was headed for home, outside of town, driving a family

      member’s truck. Sams had no car of his own because his driver’s license had

      been suspended, but Sams drove his family member’s truck anyway.2 Before

      leaving town, Sams stopped at a fast-food restaurant and purchased his supper

      to go, eating as he drove.


[3]   At the same time, a sworn officer and a trainee reserve officer of the

      Greencastle Police Department (“GPD”), Christopher Jones (“Jones”) and

      Justin Tate (“Tate”), were patrolling Greencastle’s streets in their squad car.

      When Sams’s truck passed the officers going in the opposite direction, Tate

      noticed the truck had no working taillights. “That is an infraction in the [s]tate

      of Indiana,” as Jones later noted. Tr. p. 188. The officers turned their car




      1
        We heard argument in this case on January 24, 2017, at the Eidson-Duckwall Recital Hall on the campus of
      Butler University in Indianapolis. We thank our hosts, particularly Dr. Rusty Jones, Dr. Jason Lantzer, and
      the staff at the hall, for the warm welcome we received, and those in attendance for their interest,
      attentiveness, and the engaging question-and-answer session following argument. We also thank counsel for
      their spirited advocacy and their enthusiastic participation in the question-and-answer session.
      2
          It was conceded at argument that this fact does not impair Sams’s Fourth Amendment standing.


      Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017                     Page 2 of 20
      around and pulled Sams over near the intersection of Jackson Street and

      Shadowlawn Avenue.

[4]   The officers approached Sams and asked for his driver’s license and the truck’s

      registration. Sams was the truck’s only occupant. The truck was in poor

      condition and smelled like freshly cooked hamburger. Next to Sams on the

      passenger seat and center console sat a fast-food bag and a hamburger box. As

      he continued to eat his hamburger, Sams produced the vehicle’s registration

      but, rather than a driver’s license, handed the officers a state-issued

      identification card. The officers took Sams’s papers back to their squad car to

      process them. There, after several minutes, the officers discovered that Sams

      was driving on a suspended license for the second time in ten years, a

      misdemeanor criminal offense.


[5]   With this information, the officers were faced with the question of what to do

      with a truck stopped at night on a public road that was cold and slick in a

      snowstorm, without a licensed driver to drive it away. Jones decided that

      conditions required Sams’s truck to be impounded and towed. “[From t]he

      position of the vehicle[, we] couldn’t leave it where it was. [We c]ouldn’t . . .

      spend time waiting on someone to drive [in] from out of town [to claim the

      truck]. So we impounded the vehicle.” Tr. p. 9.

[6]   Jones chose to issue Sams a summons for the misdemeanor rather than arrest

      him. The officers returned to the truck to tell Sams the truck would be towed

      and to give him the summons. Sams said he would have someone pick him up


      Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 3 of 20
      from a nearby gas station. The officers patted Sams down and told him he was

      free to leave. Sams left the truck and walked to the gas station to wait.

[7]   Around this time, a second reserve officer and a second sworn officer, Kyle Lee

      (“Lee”), arrived on the scene, bringing the total number of officers to four.

      Jones and Lee began to inventory the contents of the truck before the tow truck

      arrived. Jones and Lee began their inventorying process on opposite sides of the

      truck’s cab. Several personal items were scattered about the cab, including an

      orange gas can, a pair of gloves, an ashtray, a snow scraper, and, we infer, some

      tools Sams used in his renovation work.


[8]   From the driver’s side, Jones noticed the fast-food bag, previously next to Sams

      in the front of the cab with the hamburger box, now sat folded up on the

      floorboard behind the passenger seat in the rear of the cab. Jones immediately

      became suspicious. Jones told Lee, “[H]ey[,] check that bag. Just make sure

      nothing’s in it.” Tr. p. 13. Lee opened the bag. Inside the bag was the

      hamburger box. Inside the hamburger box were lettuce, ketchup, and more than

      twenty-five grams of methamphetamine.


[9]   The officers walked to the nearby gas station and found Sams there, still waiting

      to be picked up. The officers arrested Sams without incident. The officers then

      wrote up their complete inventory of the truck: “Misc tools.” Ex. Vol., State’s

      Hr’g Ex. 6. At some point “after [the officers] found what [they] found [they]

      took photos just to document. [They] had to place everything back in the

      general location where [they] found it just for documentation purposes.” Tr. p.


      Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 4 of 20
       219. Three pictures were taken: two of the inside of the bag and box, one of the

       outside of the bag, not very neatly folded,3 and what appears to be a part of the

       orange gas can and the handle of the snow scraper at the edges of the frame. Ex.

       Vol., State’s Trial Exs. 1-3; see Tr. p. 178. The truck was towed shortly

       thereafter, and it is unknown what became of it or its contents. See Tr. p. 14.


[10]   On February 23, 2015, Sams was charged with Class A misdemeanor driving

       while license suspended and Level 3 felony possession of methamphetamine,

       later reduced to Level 4 felony possession. On November 2, 2015, Sams moved

       to suppress the methamphetamine. At a hearing on November 25, 2015, the

       court heard evidence and argument and ordered briefing. The court denied

       Sams’s motion on January 6, 2016. Sams sought certification for interlocutory

       appeal, which the court denied on February 1, 2016, in an order issued on

       February 4, 2016.

[11]   Sams’s case was tried to a Putnam County jury on February 3, 2016. The

       methamphetamine seized from the truck was admitted over Sams’s objection.

       The jury returned guilty verdicts on both the misdemeanor driving while

       suspended and the felony possession charges. On March 10, 2016, Sams was




       3
         Laying a foundation for the admission of the photographs, Lee was asked whether the picture “appear[ed]
       to be an accurate representation of what the bag looked like when [he] found it?” Tr. p. 178. “Yes sir it is,”
       said Lee. Id. When asked why, in that case, the bag did not appear to be as neatly folded as the officers’
       testimony had suggested, Jones replied that the picture had been taken “after [the bag] had already been
       opened by [the officers] . . . and Officer Lee didn’t roll it up nice and neat like how we first observed it. . . .
       This [picture is] not accurate as to how we actually initially observed it.” Tr. pp. 218-19. One of the officers
       was doubtlessly correct.

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017                              Page 5 of 20
       sentenced to time already served for the misdemeanor, and to ten years, nine

       and one-half executed, in the Indiana Department of Correction for the felony.

[12]   This appeal followed. Sams challenges the admission of the methamphetamine

       as the inadmissible fruit of an unlawful search under the Fourth Amendment.

       He raises no separate argument under our state constitution.


                                           Standard of Review

[13]   Our review of denials of motions to suppress, when following a trial at which

       the challenged evidence was admitted, is properly a review of the trial court’s

       decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.

       2014). We review the trial court’s ruling on admissibility for abuse of discretion,

       reversing only if the ruling is clearly against the logic and effect of the facts, and

       the error effects substantial rights. Id. The constitutionality of a search or seizure

       is a pure question of law we review de novo. Id. Because the search in this case

       was done without a warrant, the burden of showing its constitutionality was on

       the State. Berry v. State, 967 N.E.2d 87, 90 (Ind. Ct. App. 2012).


                                       Discussion and Decision

                                          I. Sams Timely Appealed

[14]   The State suggests that Sams’s appeal “may be untimely.” Appellee’s Br. p. 6.

       However, the State’s reliance on Smith v. Deem, 834 N.E.2d 1100 (Ind. Ct. App.

       2005) (period for filing notice of appeal begins to run when parties have actual

       notice of final judgment), trans. denied, has been mooted by intervening

       amendment to the Indiana Rules of Appellate Procedure. App. R. 9(A)(1)

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 6 of 20
       (period for filing notice of appeal begins to run when final judgment entered

       into chronological case summary); Bryan H. Babb & Curtis T. Jones,

       Developments in Indiana Appellate Procedure: Rule Amendments, Remarkable Case

       Law, and Court Guidance for Appellate Practitioners, 44 Ind. L. Rev. 1033, 1033–34

       (2011) (describing 2010 amendment putting App. R. 9(A)(1) in its current

       form). Under the current rule, there is no question that Sams timely appealed.

       We therefore proceed to the merits of Sams’s claim.


           II. The Inventory Search of the Fast-Food Bag and Box Was Not Sufficiently
                    Regulated by Standardized Procedures and Was Pretextual

[15]   The touchstone of the Fourth Amendment is reasonableness. Brigham City v.

       Stuart, 547 U.S. 398, 403 (2006). When police are investigating crime, it is

       usually unreasonable for them to search a person’s car without probable cause

       to think they will find evidence relevant to their investigation there. See Myers v.

       State, 839 N.E.2d 1146, 1150–51 (Ind. 2005). However, when police have taken

       lawful custody of a person’s car,4 whether to protect the public, see Cady v.

       Dombrowski, 413 U.S. 433, 441 (1973) (first recognizing community caretaking

       doctrine), or because otherwise authorized by state law, Fair v. State, 627

       N.E.2d 427, 431 (Ind. 1993), they are responsible for the car and anything

       inside it. In these cases, it is reasonable for police to search the car and make an




       4
        Sams does not challenge the officers’ decision to impound the truck as it stood in a public road at night in a
       snowstorm without a licensed driver available to move it. Sams’s concession on this point is well taken. See
       Jones v. State, 856 N.E.2d 758 (Ind. Ct. App. 2006) (upholding impoundment of car on highway shoulder
       when driver was unlicensed), trans. denied.

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017                         Page 7 of 20
       inventory of anything inside it for administrative reasons completely

       unconnected to criminal investigation: to protect the person’s property and to

       protect themselves, as well as anyone who takes custody of the car after them,

       from legal liability and from physical harm. Colorado v. Bertine, 479 U.S. 367,

       372 (1987); Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000) (citing

       South Dakota v. Opperman, 428 U.S. 364, 369 (1976) (plurality op.)).


[16]   The temptation for police, of course, engaged as they are in the often

       competitive enterprise of ferreting out crime, Johnson v. United States, 333 U.S.

       10, 14 (1948), is to search the car for an investigative purpose while claiming,

       pretextually, to search it for an administrative purpose. Fair, 627 N.E.2d at 435.

       But because Fourth Amendment reasonableness is an objective standard, Scott

       v. United States, 436 U.S. 128, 138 (1978), it misses the mark to ask only what

       subjective purpose individual searching officers had. Instead, we ask whether a

       search was reasonable under the circumstances as an inventory search. If so, we

       will not fault it because a searching officer wanted or expected to find evidence

       of a crime as he searched. Moore v. State, 637 N.E.2d 816, 820 (Ind. Ct. App.

       1994), trans. denied.


[17]   We thereby seek to forestall two primary Fourth Amendment evils: excessive

       official discretion and suspicionless criminal investigation. Fair, 627 N.E.2d at

       435; see generally Delaware v. Prouse, 440 U.S. 648, 661 (1979) (“standardless and

       unconstrained discretion”); Ybarra v. Illinois, 444 U.S. 85, 91 (1979)

       (investigation without “particularized” suspicion). The first line of defense is

       regulation of the inventory search by standardized police procedures. Florida v.
       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 8 of 20
       Wells, 495 U.S. 1, 4 (1990); Fair, 627 N.E.2d at 435. Such regulation does not

       per se establish constitutionality; it is simply “ruse antidote.” United States v.

       Cherry, 436 F.3d 769, 777 (7th Cir. 2006) (Posner, J., dissenting), cited in United

       States v. Cartwright, 630 F.3d 610, 615 (7th Cir. 2010). When both the initiation

       and the scope of an inventory search are guided or directed by such procedures,

       Fair, 627 N.E.2d at 435, we are very reluctant to find a constitutional violation

       — reluctant, but not unwilling, as the search protocol itself may be

       unconstitutional. See Cartwright, 630 F.3d at 614-15.


[18]   Assuming a valid protocol, however, we approve searches under it and tolerate

       minor deviations from it. See, e.g., Jackson v. State, 890 N.E.2d 11, 18-19 (Ind.

       Ct. App. 2008) (search not unreasonable where differently titled form filled out

       by different officer than required by policy). Even major deviations do not

       automatically require suppression if the inventory search fulfilled its

       administrative purposes and there are no other indications of pretext for an

       investigative purpose. See, e.g., Whitley v. State, 47 N.E.3d 640, 648 (Ind. Ct.

       App. 2015), trans. denied. However, major deviations may give rise to an

       inference of pretext which the State must overcome. See, e.g., Weathers v. State,

       61 N.E.3d 279, 288–89 (Ind. Ct. App. 2016).


[19]   There are, then, three basic types of inventory cases: the “minor deviation from

       policy” cases, the “major deviation from policy” cases, and the “no policy”

       cases. The State almost always prevails in the “minor deviation” cases because

       there is no basic inference of pretext. The State always loses the “no policy”

       cases because the search is totally, and therefore excessively, discretionary. The
       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 9 of 20
       “major deviation” cases are difficult to generalize about, turning on whether the

       search nonetheless fulfilled its administrative purposes and on whether the State

       can dispel inferences of pretext. We believe this case falls somewhere between

       the “no policy” and “major deviation” cases.

[20]   In some “no policy” cases, police have actually failed to establish any inventory

       policy whatever. See, e.g., Edwards v. State, 762 N.E.2d 128, 133 (Ind. Ct. App.

       2002) (“[T]he record does not . . . even indicate there is . . . a policy.”), trans.

       denied. In others, the purported “policy” is really none at all. See, e.g., Fair, 627

       N.E.2d at 436 (“[The searching officer] testified only that ‘we conduct an

       inventory search of the car to see what kind of items are in it[, to see if] there’s

       anything valuable that might need to be . . . noted as being in the car.’” (original

       emphasis)). Finally, in some, the policy is silent on a critical point, vesting

       police with too broad a discretion and thereby failing sufficiently to regulate the

       search. See, e.g., Wells, 495 U.S. at 4–5 (no policy as to closed containers); State

       v. Lucas, 859 N.E.2d 1244, 1250–51 (Ind. Ct. App. 2007) (no policy as to locked

       containers), trans. denied. Discretion per se is not prohibited, but free-flowing,

       “uncanalized discretion” is. Wells, 495 U.S. at 4. It is important to remember

       that any discretion the policy affords must be “exercised according to standard

       criteria and on the basis of something other than suspicion of evidence of

       criminal activity.” Id. (quoting Bertine, 479 U.S. at 376 (Blackmun, J.,

       concurring)).

[21]   At the time of Sams’s arrest, the GPD had a written policy on impounding and

       inventorying cars (“the written policy”). At the beginning of the written policy,

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 10 of 20
       but not under the section on “Inventory Procedures,” the written policy

       provides, “When the driver/owner of a vehicle is arrested, and if the vehicle is

       subject to a lawful impound, the arresting officer will make an inventory of the

       vehicle for valuables.” Ex. Vol., State’s Hr’g Ex. 1 (emphasis added). The section

       on “Inventory Procedures” is reproduced here in full:


               A. On the inventory form, the officer shall list all personal property and
                  all vehicle accessories such as radios, tape player[s], etc., and shall
                  describe the vehicle’s condition.
               B. Upon completion, the inventory form will be signed by both the
                  wrecker driver and the impounding officer.
               C. The original copy of the vehicle inventory/impound will be turned in
                  with the report. A copy will be given to the wrecker driver.


       Ex. Vol., State’s Hr’g Ex. 1 (emphasis added). The written policy thus contains

       only one absolute directive for conducting the search itself: to inventory “all

       personal property and all vehicle accessories . . . .” Id.


[22]   However, this is not what GPD officers actually do. Rather, a “standard check

       of the vehicle” means “[m]ak[ing] sure there is nothing valuable or hazardous

       and check[ing] the vehicle from front to back. That is what we typically do.” Tr.

       p. 18 (testimony of Jones) (“the unwritten policy”).


               [O]ur policy . . . [is] basically [to] put down stuff that you would
               be liable for. [W]e don’t go through and pick up every single piece,
               article, . . . crumb, anything in the vehicle. [Rather, w]e look at the
               vehicle and make sure anything that would be valuable [is
               inventoried], if you look at [it and determine] that’s valuable . . .
               [. O]r [if] the person . . . will speak up, [and say, “H]ey don’t let



       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017    Page 11 of 20
               anything happen to such and such,[”] we will put it on the
               inventory sheet. But I just go by my view of what’s valuable.


       Tr. pp. 22–23 (testimony of Jones) (emphasis added).

               [B]asically what you’re looking for are valuables. Things that you
               know would [make the GPD liable] if something would happen
               to them. Liable [to] the owner or maybe it’s a . . . safety risk . . .
               to us or to the public if we left that in [the] vehicle.


       Tr. p. 198 (testimony of Jones).


[23]   The written policy lists “radios” as an example of a “vehicle accessor[y]”

       required to be inventoried. Id. When asked why he did not list the truck’s radio

       on the inventory sheet, Jones replied that

               A.       I didn’t see any radios of value.
               Q.       Your [de]termination is that only items of value that you
                        deem [of] value or the operator of the car deems [of]
                        value[,] you put on the inventory [form]?
               A.       That I would consider [of] value for liability [purposes].
                        Yes.
               Q.       And that is . . . distinct from what [the written] policy says
                        for you to do?
               A.       That’s what I interpret the policy to mean.
               Q.       But your policy says the officer shall list all personal
                        property and vehicle accessories. To you, that means you get
                        to list what you want to see added?
               A.       Such as, yes.
               Q.       That’s . . . your personal belief, not what the policy is?
               A.       That’s my interpretation of the policy.
               Q.       Okay, that’s how you’re trained on it? . . . .



       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 12 of 20
               A.       That’s how I was trained and that’s how we, that’s how
                        I’ve always d[one] it. If it’s of value we put . . . [it] on [the]
                        inventory sheet.
               Q.       Your training is to provide your own distinct interpretation [of]
                        the policy?
               A.       Of how we interpret it, yes.


       Tr. p. 223 (emphasis added).

[24]   The written policy thus conflicts both with itself and with the unwritten policy.

       We suspect that the written policy exists for the sake of reviewing courts and

       the unwritten policy for the sake of officers in the field. Even if the policies are

       not programmatically pretextual in this way, see Brigham City, 547 U.S. at 405

       (scope of inquiry into “programmatic purpose”), their conflict affords GPD

       officers excessive discretion in allowing officers to choose which of two

       protocols will govern their searches. See United States v. Rowland, 341 F.3d 774,

       779-80 (8th Cir. 2003) (invalidating inventory search) (“[O]ur research has not

       revealed a case allowing the written procedures of law enforcement [requiring

       inventory of ‘all’ property] to be eroded by unwritten practice [requiring

       inventory only of items perceived to be ‘particularly valuable.’]”).


[25]   In addition, the unwritten policy alone vests GPD officers with an excessive

       discretion. It is indistinguishable from what Fair held to be no policy at all:

       “[W]e conduct an inventory search of the car [to see if] there’s anything

       valuable that might need to be . . . noted as being in the car . . . .” Fair, 627

       N.E.2d at 436; see also Rhodes v. State, 50 N.E.3d 378, 382 (Ind. Ct. App. 2016)

       (invalidating inventory search) (inventory “to make sure no valuables are left

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017       Page 13 of 20
inside the vehicle before it’s towed”), trans. denied. In part, this is because

inventory searches are definitionally searches for valuables (and, to some

degree, dangers).5 See Opperman, 428 U.S. at 369-70. Without further definition

by standardized criteria, a policy “to inventory for valuables” gives officers

unconstitutionally broad discretion. There is nothing in the record of what

standardized criteria GPD officers use to decide what is “valuable” under the

policy. Jones even testified that the GPD trains its officers “to provide [their]

own distinct interpretation” of the written policy, frustrating the development of

such criteria. Tr. p. 223. As a result, officer discretion is completely

unconstrained. “I just go by my view of what’s valuable,” Jones testified. Tr. p.

23. Jones simply “get[s] to list what [he] want[s] to see added” to the inventory

form. Tr. p. 223. A police officer picking through a person’s belongings without




5
  The State fares no better by substituting “dangerous” for “valuable.” Though less frequent than references
to “valuable” items, there was testimony that the unwritten policy included dangerous in addition to valuable
items. See Tr. p. 198.
“The third interest [served by inventory searches] — protecting the police from potential danger — failed to
receive the endorsement of a majority of the [Opperman] Court . . . .” Colorado v. Bertine, 479 U.S. 367, 383
(1987) (Marshall, J., dissenting). Prof. LaFave opines, “[I]t is difficult to take this [third] contention seriously
— if police are endangered by unsearched cars in their possession, then it would seem that the public is
endangered by cars parked on the streets or other public or semi-public places. It is significant that Powell, J.,
concurring [in Opperman, 428 U.S. at 378, supplying the fifth vote], noted that ‘[e]xcept in rare cases, there is
little danger associated with impounding unsearched automobiles . . . .’” Wayne R. LaFave, 3 Search and
Seizure: A Treatise on the Fourth Amendment § 7.4(a), at 835 n.18 (5th ed. 2012). “As for the protection-of-the-
public argument, it borders on the ridiculous.” Id. at 843.
At oral argument, we were asked to entertain the possibility that a homemade bomb could have been
concealed in the fast-food bag from which the officers had seen Sams eating his supper. Without far more
evidence on this possibility in the record, we find this suggestion too remote to consider. Even if it were not,
surely opening the bag only increased, rather than decreased, the resulting danger to the officers, the public,
and Sams’s property. “No sane individual inspects for booby-traps by simply opening the container.” United
States v. Cooper, 428 F.Supp. 652, 655 (S.D. Ohio 1977). We do not think this theory, as applied to Sams’s
truck, describes an objectively reasonable inventory search.

Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017                            Page 14 of 20
       suspicion, “get[ing] to list what [he] want[s] to” search, is indeed the very

       opposite of what the Fourth Amendment requires.

[26]   We conclude that, as it existed at the time of Sams’s arrest, the GPD inventory

       regime did not and could not sufficiently regulate inventory searches conducted

       under it. The conflict between the written and unwritten policies permitted an

       impermissible choice between them, and the unwritten policy was standardless.

       In short, vitiated by excessive discretion, GPD “policy” was really none at all.


[27]   Even if GPD inventory policies could pass muster, neither the written nor the

       unwritten policy was actually followed in this case. First, there is no trigger for

       an inventory search described in the record other than the one appearing at the

       head of the written policy: “When the driver/owner of a vehicle is arrested, and

       if the vehicle is subject to a lawful impound . . . .” Ex. Vol., State’s Hr’g Ex. 1.

       The written policy provides for impounding a car in situations other than the

       driver’s arrest, id. (“Circumstances Warranting”), but nevertheless appears to

       contemplate inventory only in cases of arrest. Id. (“The justification for an

       inventory of an impounded vehicle is based on the validity of the

       impoundment, not the arrest of the driver.”). However, Sams was not arrested

       before Jones and Lee inventoried his truck. Thus, written GPD policy does not

       authorize the inventory search here.


[28]   Second, as to the unwritten policy, to the extent that any standardized criteria

       for deciding what is “valuable” exist, they appear routinely to require excluding

       from inventory items like Sams’s discarded fast-food bag, from which he had


       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 15 of 20
       been seen eating minutes before. As Jones testified, a fast-food “trash bag” is

       “not something we typically put on an impound sheet” because “not what we

       typically consider of value, no.” Tr. p. 225. It is indeed difficult to imagine what

       criteria could reasonably be employed to deem the bag or its likely contents

       “valuable,” whether “for liability purposes” or any other purpose.


[29]   Third, as to the written policy, we note again that GPD officers routinely

       disregard it, Tr. p. 23 (“[W]e don’t go through and pick up every single piece . .

       . .”), and are in fact trained to furnish their own “distinct interpretation[s]” of it.

       Tr. p. 223. It is plain that “all” items in Sams’s truck were not inventoried.

       Though the truck did not contain very many items, none were individually

       recorded, including one (the truck’s radio) to which the written policy expressly

       refers. The “misc tools” notation is of no help to the State because it is not

       accurate. Ex. Vol., State’s Trial Ex. 6. Gloves, ashtrays, and gas cans are not

       “tools.” While we infer that there were real tools in Sams’s truck, see Tr. p. 31,

       neither the inventory nor another part of the record reveals what those might

       have been. See United States v. Taylor, 636 F.3d 461, 464-65 (8th Cir. 2011)

       (“hundreds of valuable tools” accurately described as “misc. tools” insufficient

       to defeat charge of pretext).


[30]   Fourth, Jones testified that, “[t]hrough part of [his] training when [he is] doing

       inventory searches, [he] search[es] all the containers in the vehicle,” “unless

       they are locked.” Tr. p. 19. The written policy is silent on this point. See Ex.

       Vol., State’s Hr’g Ex. 1. Even assuming that Jones’s testimony sufficiently

       establishes a policy requiring opening all closed containers, that is not what

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 16 of 20
       Jones did. At least one other closed container was in the truck, the gas can. It

       was not opened,6 though knowing what if anything is inside a gas can would

       promote the public- and officer-safety rationales of the inventory search.


[31]   The State is unable to dispel the inference of pretext arising from these major

       deviations from policy, particularly from the determination of the discarded

       fast-food bag as “valuable.” Dispositively, it is clear on these facts that the fast-

       food bag and box would not have been searched but for the officers’ suspicions

       of criminality. When asked whether it was Jones’s intent to “preserve this trash

       and document it,” presumably for the purpose of producing an accurate

       inventory of the truck’s contents, Jones replied, “No. It was basically to check it

       because it just seemed suspicious . . . . It just seemed suspicious.” Tr. p. 31.

       “When we found [the fast-food bag] we specifically searched the bag yes

       because it was suspicious.” Tr. p. 224. “At that point it was a suspicious item to

       be searched based on the circumstances.” Tr. p. 227. When asked “whether it is

       a suspicious thing” that “someone took [the bag] from the from the front seat,

       cleaned up [his] mess[,] and put it in the back,” Jones replied, “Yes.” Tr. p. 228.


[32]   We find further support for this conclusion in the fact that, though the bag was

       located on the side of the car assigned to be searched by Lee, Jones had to

       prompt Lee to search the bag and the box inside: “[H]ey check that bag. Just

       make sure nothing’s in it.” Tr. p. 13. If GPD policy would have prompted




       6
           That is, there is no evidence that it was opened, and the burden was the State’s.


       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017              Page 17 of 20
       search of the bag of its own force, presumably Jones would not have had to

       prompt it himself. Finally, Jones’s testimony that Sams’s movement of the bag

       from the front to the back of the truck “just didn’t add up,” id., prompting Jones

       to prompt Lee’s search, suggests that, had Sams simply left the bag on the front

       seat, it would not have been opened.


[33]   We conclude that, where, as here, the item searched would not have been the

       target of a well-regulated inventory search, such that the item would not have

       been searched at all but for the criminal suspicions of the searching officer, the

       search is pretextual and therefore unreasonable. Accord United States v. Kennedy,

       427 F.3d 1136, 1145 (8th Cir. 2005); State v. Ture, 632 N.W.2d 621, 629 (Minn.

       2001); see also Bertine, 479 U.S. at 372 (no showing police acted for “sole

       purpose” of investigation).


[34]   Under the facts before us, any administrative benefits of the officers’ inventory

       search were incidental to the investigative benefits when the law required the

       opposite. None of the administrative purposes of the inventory search were

       served by the search here. The “misc tools” notation is not only inaccurate, see

       supra ¶29, but totally inadequate to those purposes. Because it does not describe

       any item in the truck with any specificity, the inventory would not, for example,

       protect Sams’s gloves from theft; it would not protect the GPD from a false claim

       that an expensive but nonexistent drill had been lost in their custody; and it

       would not alert those in and around the truck at the impound lot that the truck

       could contain flammable gasoline or explosive gasoline vapors. This assumes

       particular importance in light of Jones’s testimony that it is discretionary “based

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017   Page 18 of 20
       on the scene” whether to conduct the inventory search at the scene or at the

       impound lot,7 and that “typically [GPD officers] do it at the scene because once

       the vehicle leaves we don’t know what happens to it.” Tr. p. 14.


[35]   The State’s effort to rehabilitate the search by means of the three photographs

       taken after the methamphetamine was found is unavailing. See Whitley, 47

       N.E.3d at 648 (photographs helped rebut inference of pretext arising from

       “more than minor” deviation from policy). The photographs do not, alone or

       together, record all the items in Sams’s truck. Two of the three are of the bag

       and box exclusively, Ex. Vol., State’s. Trial Exs. 2–3, and one is mostly of the

       bag, with other items shown incompletely at the edges of the frame. Id., State’s

       Trial Ex. 1. Jones testified, “[A]fter [the officers] found what [they] found [they]

       took photos just to document. [They] had to place everything back in the

       general location where [they] found it just for documentation purposes.” Tr. p.

       219. Under the circumstances, it is clear that the photographs were taken to

       document a methamphetamine investigation, not to produce an inventory of

       Sams’s truck.


                                                    Conclusion

[36]   For these reasons, we conclude that the search of Sams’s truck was not

       sufficiently regulated by standardized police procedures and therefore was




       7
         See Fair, 627 N.E.2d at 436 (on-scene inventory by non-administrative officers as indicia of pretext). Other
       than to state that the decision where to inventory is “based on the scene,” Tr. p. 14, Jones offered no
       standardized criteria used to guide that decision.

       Court of Appeals of Indiana | Opinion 67A01-1604-CR-814 |February 21, 2017                        Page 19 of 20
       pretextual. The vague, conflicting inventory regime of the GPD was not

       capable of sufficiently regulating the search, but even if it was, the officers’

       major deviation from that regime gives rise to an inference of pretext confirmed

       by other evidence and not overcome by the State.

[37]   The trial court abused its discretion by ruling the contrary. All fruits of the

       inventory search of Sams’s truck were inadmissible. Because no admissible

       evidence supported Sams’s conviction for possession of methamphetamine, that

       conviction must be vacated. We therefore vacate Sams’s conviction and remand

       with direction to grant Sams’s motion to suppress and for any further

       proceedings required in accordance with this opinion.

[38]   Reversed.


       Kirsch, J., and Robb, J., concur.




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