Phillip Whitley v. State of Indiana , 2015 Ind. App. LEXIS 739 ( 2015 )

Dec 07 2015, 9:10 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
David R. Hennessy Attorney General of Indiana
Indianapolis, Indiana Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Phillip Whitley, December 7, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1501-CR-50
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven R.
Appellee-Plaintiff Eichholtz, Judge
Trial Court Cause No.
49G20-1402-FA-8402
Mathias, Judge.
[1] Phillip Whitley (“Whitley”) was charged in Marion Superior Court with Class
A felony dealing in methamphetamine, Class C felony possession of
methamphetamine, Class D felony possession of a controlled substance, and
Class A misdemeanor driving while suspended. The evidence supporting the
charges was discovered during an inventory search of the vehicle Whitley was
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driving. Whitley filed a motion to suppress this evidence, arguing the
warrantless search violated his constitutional rights under the Fourth
Amendment and Article 1, Section 11. The trial court denied Whitley’s motion
to suppress, certified its decision, and our court has accepted jurisdiction of this
interlocutory appeal.
[2] We affirm.
Facts and Procedural History
[3] At approximately 12:35 a.m. on February 20, 2014, Indianapolis Metropolitan
Police Officer (“IMPD”) Frederick Lantzer (“Officer Lantzer”) initiated a
traffic stop of a pick up truck because it displayed a passenger car license plate.
The license plate was also registered to a different vehicle. Whitley, the driver of
the truck, provided his name to Officer Lantzer and admitted that he lacked a
valid driver’s license. After Whitley was unable to produce the truck’s
registration, the officer confirmed that the truck was not registered to Whitley
and that his driver’s license was suspended.
[4] The truck was parked on Auburn Street near the intersection Auburn Street and
Washington Street. Because the truck was partially in the roadway, Officer
Lantzer decided it was necessary to impound the truck, and IMPD Officer Tim
Huddleston (“Officer Huddleston) conducted the administratively required
inventory search roadside. During the search, the officer discovered a
“decorative box” on the front passenger’s seat containing a substance later
identified as more than seven grams of methamphetamine, a lighter, a package
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of rolling papers, a money clip, a burnt marijuana cigarette, and a pill bottle.
The pill bottle contained two alprazolam pills and eight clonazepam pills,
Schedule IV prescription drugs for which Whitley had no prescriptions.
[5] Whitley was also searched incident to his arrest, and a glass pipe commonly
used to smoke methamphetamine was found in his pocket. He also had $1135
in his wallet.
[6] On February 24, 2014, Whitley was charged with Class A felony dealing in
methamphetamine, Class C felony possession of methamphetamine, Class D
felony possession of a controlled substance, and Class A misdemeanor driving
while suspended. On September 10, 2014, Whitley filed a motion to suppress
the evidence seized during the search of the truck, arguing that the warrantless
search violated his rights under the Fourth Amendment and Article 1, Section
11.
[7] At the hearing held on Whitley’s motion, the trial court admitted into evidence
the IMPD’s General Order 7.3 on Towing and Impounding Vehicles. The order
states that an IMPD officer may impound a vehicle if it is “[b]eing operated by
a non-licensed or suspended driver” and defines a vehicle inventory search as
“an administrative, routine and warrantless search of the passenger area
(including the glove compartment), trunk, and closed containers[.]” Ex. Vol.,
State’s Ex. 1. The order also provides that inventory searches “should not be
motivated by an officer’s desire to investigate and seize evidence of a criminal
act.” Id. Also, “[w]henever an officer takes a vehicle into custody, an inventory
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search will be conducted prior to impoundment and a detailed listing of any
property found in the vehicle will be made.” Id. The order also directs the
officer to search all containers. Id. Finally, the order requires all property
discovered during an inventory search to “be listed in the officer’s personal
notebook.” Id.
[8] Officer Lantzer testified that the truck was impounded because the owner was
not identified to the officers and it was parked halfway in the roadway blocking
a lane of traffic. Tr. pp. 13-14. Officer Huddleston performed the inventory
search but did not complete any related paperwork. He told Officer Lantzer
what he found in the truck, and Officer Lantzer listed certain items in the
probable cause affidavit. Photographs taken of the interior of truck by the
evidence technician after Officer Huddleston’s search established that other
personal items were in the truck that were not listed by Officer Lantzer in the
probable cause affidavit.
[9] On November 25, 2014, the trial court issued its order denying Whitley’s
motion to suppress. In its order, the court observed that impoundment of the
truck was proper but also concluded that the procedures outlined in the IMPD’s
General Order 7.3 on Towing and Impounding Vehicles were not followed.
Appellant’s App. p. 52. Specifically, the court noted that Officer Huddleston
“did not list any items” found during the inventory search: “not in the officer’s
personal notebook, not on the tow slip, or anywhere else.” Appellant’s App. p.
52. However, Officer Lantzer listed items discovered during the inventory
search in his probable cause affidavit. Therefore, the court concluded that
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“there is nothing to indicate that this was anything other than a routine
inventory search and was not a pretext for a narcotics investigation.” Id.
[10] Thereafter, Whitley filed a motion requesting that the trial court certify its order
denying his motion to suppress for interlocutory appeal. The trial court granted
his motion, and on February 6, 2015, our court accepted jurisdiction of
Whitley’s interlocutory appeal.1
Standard of Review
[11] We review both a trial court’s denial of a motion to suppress and its rulings on
the admissibility of evidence for an abuse of discretion. Goens v. State, 943
N.E.2d 829, 831 (Ind. Ct. App. 2011). A trial court abuses its discretion if its
decision is clearly against the logic and effect of the facts and circumstances
before it. Id. In conducting our review, we will neither reweigh the evidence nor
assess witness credibility, and we will consider conflicting evidence in a light
most favorable to the trial court’s ruling. Id. at 831-32. “However, we must also
consider the uncontested evidence favorable to the defendant.” Webster v. State,
908 N.E.2d 289 (Ind. Ct. App. 2009), trans. denied.
Standing
[12] As an initial matter, the State argues that Whitley did not establish that he had
a reasonable expectation of privacy in the truck or that he had standing under
1
On October 21, 2015, we held oral argument in this case at Indiana Tech Law School in Fort Wayne,
Indiana. We thank the law school’s faculty and staff for their hospitality, and commend counsel for the
quality of their written and oral advocacy.
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the Indiana Constitution that would allow him to challenge the validity of the
search. However, the State concedes that it did not raise this argument at the
hearing. See Appellee’s Br. at 9.
[13] Under the Fourth Amendment, “a defendant must demonstrate that he
personally has an expectation of privacy in the place searched, and that his
expectation is reasonable[.]” Minnesota v. Carter, 525 U.S. 83, 88 (1998). Our
supreme court has held that the driver of a borrowed car has met his burden
under the federal and state constitutions if the driver testifies that he had
consent to drive the car and the State introduces no evidence to the contrary.
Campos v. State, 885 N.E.2d 590, 599 (Ind. 2008). However, “where the [S]tate
has failed to make any trial court challenge as to whether the defendant has a
legitimate expectation of privacy, the State may not raise the issue for the first
time on appeal.” Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2008),
trans. denied. See also Armour v. State, 762 N.E.2d 208, 213 (Ind. Ct. App. 2002),
trans. denied.
[14] To challenge a search under the Indiana Constitution, “a defendant must
establish ownership, control, possession, or interest” in the premises searched.
Campos, 885 N.E.2d at 598 (quoting Peterson v. State, 674 N.E.2d 528, 534 (Ind.
1996)). The State must raise the issue of standing at the trial court level in order
to preserve it for appeal. See Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct. App.
2002) (citing Everroad v. State, 590 N.E.2d 567, 569 (Ind. 1992)).
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[15] Because the State did not object to standing and/or argue that Whitley did not
have a reasonable expectation of privacy in the truck in the proceedings below,
we conclude that the State has waived these arguments for the purposes of this
appeal.
The Fourth Amendment
[16] The Fourth Amendment to the United States Constitution, made applicable to
the states through the Fourteenth Amendment, protects persons from
unreasonable searches and seizures. Taylor v. State, 842 N.E.2d 327, 330 (Ind.
2006). The fundamental purpose of the Fourth Amendment is to protect the
legitimate expectations of privacy that citizens possess in their persons, homes,
and belongings. Id. (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Subject to
certain well-established exceptions, a warrant is required to demonstrate that a
search is reasonable. Berry v. State, 967 N.E.2d 87, 90 (Ind. Ct. App. 2012). The
State bears the burden of proving that an exception to the warrant requirement
existed at the time of the search. Id.
[17] A valid inventory search is an exception to the warrant requirement. Taylor, 842
N.E.2d at 330 (citing South Dakota v. Opperman, 428 U.S. 364, 372 (1976)).
Police are permitted to conduct a warrantless search of a lawfully impounded
vehicle if the search is designed to produce an inventory of the vehicle’s
contents. Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993). The rationale for an
inventory search is three-fold: (1) protection of private property in police
custody; (2) protection of police against claims of lost or stolen property; and (3)
protection of police from possible danger. Taylor, 842 N.E.2d at 330-31.
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[18] “As in all Fourth Amendment cases, the test of constitutionality in inventory
cases is reasonableness.” Fair, 627 N.E.2d at 431. In determining the
reasonableness of an inventory search, we examine all the facts and
circumstances of the case. Id. We consider the propriety of the impoundment
giving rise to the search and the scope of the inventory search itself. Id. The
search must be conducted pursuant to and in conformity with standard police
procedures. Faust v. State, 804 N.E.2d 1242, 1244-45 (Ind. Ct. App. 2004), trans.
denied. Evidence of established local policy and procedure is required “to ensure
that the inventory is not a pretext for a general rummaging in order to discover
incriminating evidence.” Edwards v. State, 762 N.E.2d 128, 134 (Ind. Ct. App.
2002) (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)) (internal quotation marks
omitted), aff’d on reh’g, 768 N.E.2d 506, trans. denied.
[19] Impounding a vehicle is proper when authorized by statute or done pursuant to
the community caretaking function of the police. Taylor, 842 N.E.2d at 331.
Indiana Code section 9-18-2-43 provides in relevant part:
(a) ... [A] law enforcement officer authorized to enforce motor
vehicle laws who discovers a vehicle required to be registered
under this article that does not have the proper certificate of
registration or license plate:
(1) shall take the vehicle into the officer’s custody; and
(2) may cause the vehicle to be taken to and stored in a
suitable place until:
(A) the legal owner of the vehicle can be found; or
(B) the proper certificate of registration and license
plates have been procured.
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Whitley concedes that impoundment of the truck was proper.
[20] His concession as to the propriety of impoundment notwithstanding, Whitley
argues that the search conducted pursuant to the impoundment was
unreasonable. He contends that the inventory was a pretextual search for
evidence of a crime, which is established by the fact that IMPD did not follow
standard police procedures.
[21] “An inventory search must not be a ruse for a general rummaging in order to
discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). “‘The
policy or practice governing inventory searches should be designed to produce
an inventory.” Id. “The individual police officer must not be allowed so much
latitude that inventory searches are turned into ‘purposeful and general means
of discovering evidence of crime[.]’” Id. (quoting Colorado v. Bertine, 479 U.S.
367, 376 (1987)).
[22] Inventory searches performed in conformity with standard police procedures
are reasonable under the Fourth Amendment, but the State must present more
than the conclusory testimony of a police officer that the search was conducted
as a routine inventory. Edwards, 762 N.E.2d at 133. An evidentiary basis must
exist for evaluating whether an inventory search was performed in conformity
with standard police procedures, and the circumstances surrounding the search
must indicate that the search was conducted pursuant to established procedures.
See id.
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[23] However, failure to follow established police policy does not necessarily
establish that the inventory was a pretext. See Jackson v. State, 890 N.E.2d 11, 19
(Ind. Ct. App. 2008). “Inventory searches are not always unreasonable when
standard procedures are not followed.” Id. (citing United States v. Mayfield, 161
F.3d 1143, 1145 (8th Cir. 1998); see also Whren v. United States, 517 U.S. 806,
816 (1996) (stating “it is a long leap from the proposition that following regular
procedures is some evidence of lack of pretext to the proposition that failure to
follow regular procedures proves (or is an operational substitute for) pretext.”).
“[T]o defeat a charge of pretext the State must establish the existence of
sufficient regulations and that the search at issue was conducted in conformity
with them.” Fair, 627 N.E.2d at 435.
[24] In Jackson, we concluded that the inventory search did not violate the
defendant’s Fourth Amendment or Article 1, Section 11 rights because the
arresting and assisting officer generally followed the police department’s towing
and impound policy. 890 N.E.2d at 19. We rejected the defendant’s challenge
to the inventory search because documentation of the inventory search was not
completed on the “inventory/tow card” as required in the police department
policy but on a form titled “Police Officer/Rental Property Report.” Id. at 18.
We also concluded that the fact the assisting officer completed the inventory
was merely a minor deviation from the department’s policy; therefore, the
inventory search was not invalid and no circumstances existed that would lead
us to conclude that the inventory was a pretext for general rummaging. Id. at
18-19.
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[25] More recently, our court examined an inventory search in Wilford v. State, 31
N.E.3d 1023, 1029 (Ind. Ct. App. 2015), trans. pending. In that case, IMPD
initiated a traffic stop because Wilford’s vehicle had multiple cracks in the
windshield and other obvious equipment problems. The officer also discovered
that Wilford’s driver’s license was suspended. IMPD impounded the vehicle
because of its unsafe condition. An IMPD officer conducted an inventory
search at the scene prior to towing and discovered a stolen handgun in the front
center console.
[26] At the hearing, the IMPD officer testified concerning the department’s standard
procedure when performing inventory searches, but the policy itself was not
offered into evidence. The officer who performed the search described an
inventory search as “a department policy that when we take custody of the
vehicle we go through and we’re checking for valuables.” Id. at 1033. The
officer then outlined the inventory search process:
The first thing I do is I look under the front seat uh, I check the
uh, center console, I go to the rear driver side, I check the
compartment on the rear driver side. I go around the other side of
the vehicle and I check the front passenger, I check the rear
passenger area and then I check the trunk.
Id. (record citation omitted). We held that the officer’s testimony was sufficient
to show that the search was part of established IMPD procedures. Id. Cf.
Edwards, 762 N.E.2d at 133 (concluding that the inventory search was improper
because “the record d[id] not include the substance of any police department
policy regarding inventory searches, or even indicate there is such a policy”).
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[27] In this case, IMPD’s General Order 7.3 on Towing and Impounding Vehicles
was admitted into evidence, and the document specifically describes the steps
an IMPD officer is required to take when impounding a vehicle. The order
directs IMPD officers to perform an inventory search prior to impounding a
vehicle and make a detailed listing of all items found during the search. Ex.
Vol., State’s Ex. 1.
[28] Officer Huddleston searched the interior of the truck, the bed of the truck, the
glove box, and containers inside the truck. Tr. pp. 30-31. However, he did not
complete any paperwork related to the traffic stop or subsequent investigation.
Instead, he told Officer Lantzer what he found, and Officer Lantzer described
those items in the probable cause affidavit. After the search, an evidence
technician took photographs of the truck’s interior.
[29] During cross-examination, Officer Huddleston reviewed the photographs and
admitted that he failed to report all personal items in the truck such as a book,
spare tire, jumper cables, tools, an amplifier, and rims. Tr. pp. 33-35. These
items were also not listed in the probable cause affidavit. Officer Huddleston
testified that it was “not typical” for him “to make notes of such things like
property in the vehicle” when he is the assisting officer. Tr. p. 35. He believed
that Officer Lantzer “would see to that[.]” Id.
[30] Officer Lantzer testified that he asked Officer Huddleston to perform the
inventory search. Officer Huddleston told Officer Lantzer that he found a
decorative box that “contained what he believed to be a controlled substance.”
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Tr. p. 11. Officer Huddleston then asked Officer Lantzer to view the vehicle and
“pointed out that there were other things in the vehicle.” Tr. p. 12. Officer
Lantzer admitted that he did not list the items in the vehicle in his field
notebook as required in IMPD General Order 7.3 on Towing and Impounding
Vehicles. He stated he listed the items in the probable cause affidavit, but the
only items listed besides the decorative box and its illegal contents were auto
parts, a remote-control car, and trash. Appellant’s App. p. 15.
[31] Further, Officer Lantzer testified that although he was aware that the IMPD
Order required officers to list the items found in an inventory search in the
officer’s personal notebook, his general practice is to list the items on the tow
slip. Tr. p. 17. However, Officer Lantzer did not list any items on the tow slip in
this case.
[32] The circumstances in this case present more than a minor deviation from
IMPD’s General Order 7.3 on Towing and Impounding Vehicles.2 Officer
Lantzer was familiar with IMPD’s policy for inventorying the contents of an
impounded vehicle and in accordance with that policy, he asked Officer
Huddleston to perform an inventory search. Yet, the officers failed to complete
an accurate inventory of the truck’s contents, and Officer Lantzer listed only
2
Whitley urges our court to adopt a bright-line rule that an inventory search is improper if any deviation
from standard police policy exists. However, our courts have not adopted this approach, and we are not
compelled to do so in this case. It is worth reiterating that “[b]y performing inventories at the scene and by
failing to follow the written policies of their departments, officers risk suppression of any evidence recovered
during such inventories.” Jackson v. State, 890 N.E.2d 11, 19 (Ind. Ct. App. 2008). Moreover, IMPD’s
continued failure to abide by its own policy for impounding and inventorying the contents of vehicles erodes
the public’s confidence in our law enforcement officers and in rule of law, in general.
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certain items found in the truck in the probable cause affidavit. It is apparent
that after the Officer Huddleston found the contraband in the “decorative box,”
he ceased inventorying the remaining contents of the truck.
[33] However, our supreme court has stated that “so that as long as the
impoundment is pursuant to the community caretaking function and is not a
mere subterfuge for investigation, the coexistence of investigatory and
caretaking motives is permissible.” Fair, 627 N.E.2d at 436 n.7. See also Moore v.
State, 637 N.E.2d 816, 820 (Ind. Ct. App. 2004) (holding that the fact that an
officer’s suspicion arose during the course of an inventory search did not render
the search pretexual), trans. denied.
[34] Officer Lantzer’s decision to impound the truck was unquestionably reasonable.
No evidence suggests that when Officer Huddleston began the search at Officer
Lantzer’s request that he was looking for evidence of a crime. See Colorado v.
Bertine, 479 U.S. 367, 372 (1987) (observing “there was no showing that the
police, who were following standardized procedures, acted in bad faith or for
the sole purpose of investigation” and holding that evidence obtained during an
inventory search was admissible). The State is also fortunate that the
photographs taken of the interior of the truck by the evidence technician
provided a photographic record of its contents. For all of these reasons, we
conclude that Officers Huddleston’s and Lantzer’s failure to list all items found
in the truck in the officer’s personal notebook as required by IMPD policy, did
not, in itself, render the search pretextual, and therefore, the search was
reasonable under the Fourth Amendment.
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Article 1, Section 11
[35] Article 1, Section 11 of the Indiana Constitution provides, “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable search or seizure, shall not be violated[.]” Although the language
of Section 11 is virtually identical to its Fourth Amendment counterpart, our
supreme court has independently interpreted and applied Section 11. Mitchell v.
State, 745 N.E.2d 775, 785-86 (Ind. 2001). As to inventory searches in
particular, we explained in Wilford:
When examining the constitutionality of a search, the ultimate
standard dictated by Article 1, Section 11 is the same as that of
the Fourth Amendment: reasonableness of the police conduct. As
under the Fourth Amendment, a valid inventory search is a
recognized exception to the Article 1, Section 11 warrant
requirement. However, the tests for determining a rights violation
differ under the two provisions. Under the Indiana Constitution,
the State must show that an inventory search was reasonable in
light of the totality of circumstances.
31 N.E.3d at 1033-34 (citations omitted).
[36] Notwithstanding the independent analytical framework of Section 11,3 “our
supreme court has found that the factors that speak to the reasonableness of an
inventory search under the Fourth Amendment are also relevant to the
3
The reasonableness of a search or seizure turns on a balance of: “1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure
imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.” Litchfield v. State,
824 N.E.2d 356, 361 (Ind. 2005).
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reasonableness of an inventory search under Article 1, Section 11.” Id. at 1034
(citing Taylor, 842 N.E.2d at 334). For this reason, the State relies on its Fourth
Amendment analysis to also support its argument that the inventory search was
reasonable under Article 1, Section 11.4 Appellee’s Br. at 19.
[37] Officers Lantzer and Huddleston failed to comply with the IMPD’s standard
policy for inventorying the contents of an impounded vehicle. The officers did
not record all personal items in the truck, and Officer Lantzer listed only certain
items in the probable cause affidavit. However, we must still consider the
reasonableness of the inventory search despite the officers’ failure to follow
IMPD General Order 7.3 on Towing and Impounding Vehicles.
[38] Officer Lantzer’s decision to impound the truck was indisputably proper, and
therefore, pursuant to IMPD policy, the officers were required to perform an
inventory search. The search was also minimally intrusive under these
circumstances. For these reasons, and the reasons the inventory search was
reasonable under the Fourth Amendment, Officer Lantzer’s decision to
impound and conduct an inventory search of the truck Whitley was driving was
reasonable under Article 1, Section 11. See Taylor, 842 N.E.2d at 334; Wilford,
31 N.E.3d 1023. Once again, however, as with our Fourth Amendment
analysis, we remind all law enforcement officials that substantial compliance
with administrative policies is called for if they desire searches to withstand
4
Whitley argues that the State’s response to his Article 1, Section 11 argument amounts to failure to argue
the issue, and therefore, the prima facie error standard should apply. But the State cited appropriate caselaw,
the Litchfield test, and summarized the argument it raised in its Fourth Amendment analysis.
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review by the courts and, more importantly, if they expect citizens to have
confidence in law enforcement officials and in rule of law, in general.
Conclusion
[39] The search of the truck was reasonable under the Fourth Amendment and
Article 1, Section 11. We therefore affirm the trial court’s denial of Whitley’s
motion to suppress.
[40] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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