Brian E. Hardin v. State of Indiana ( 2019 )


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  •                                                                               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