Carla Shaw v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
May 29 2019, 11:03 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anna Onaitis Holden Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carla Shaw, May 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1975
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Certo, Judge
Appellee-Plaintiff. The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G12-1708-CM-32156
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Defendant, Carla Shaw (Shaw), appeals her conviction for
possession of marijuana, a Class B misdemeanor, Ind. Code § 35-48-4-11(a)(1).
[2] We reverse.
ISSUE
[3] Shaw presents one issue on appeal, which we restate as: Whether the trial court
abused its discretion when it admitted evidence procured from a warrantless
inventory search of her vehicle.
FACTS AND PROCEDURAL HISTORY
[4] On August 29, 2017, just before midnight, Officer Michael Kasper (Officer
Kasper) of the Indianapolis Metropolitan Police Department (IMPD) was on
patrol in the east district of Indianapolis when he observed a car driven by Shaw
fail to signal a turn from Sherman Drive onto 9th Street. Officer Kasper
followed the vehicle as Shaw signaled and turned left onto Bradley Street,
where Officer Kasper initiated a traffic stop. Shaw drove approximately 100
feet, pulled over, and parked on the public street in what is considered by law
enforcement to be a “high crime” area. (Trial Transcript Vol. II, p. 10). Officer
Kasper requested back up and then approached Shaw’s vehicle. Shaw provided
her name and date of birth. Shaw also volunteered that she did not have a valid
driver’s license, a fact that Officer Kasper confirmed by checking with the
Bureau of Motor Vehicle’s data base. Shaw had two passengers in the vehicle,
neither of whom possessed a valid driver’s license.
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[5] Officer Kasper decided to have Shaw’s vehicle towed because there was no one
present with a valid driver’s license to take possession of the vehicle. Officer
Kasper called for a tow truck. After Officer Katrina McEvilly (Officer
McEvilly) arrived to assist, Officer Kasper removed Shaw and the two
passengers from the vehicle. Officer Kasper detained Shaw but did not place
her under arrest for driving without a valid license. Pursuant to the IMPD’s
written policy on the towing and impounding of vehicles, General Order 7.3
(GO 7.3), the vehicle was searched prior to being towed. Officer McEvilly
found a bag of marijuana underneath the driver’s seat within reach of the
backseat passenger. Officer Kasper also searched the vehicle and found a bag of
marijuana between the front seat and the center console.
[6] As the officers were finishing the inventory search, four of Shaw’s family
members arrived. None of them had valid driver’s licenses, so the officers
continued the process of preparing the vehicle to be towed. GO 7.3 provided
that only items which had a value of $100 or more were to be inventoried prior
to towing a vehicle. Because the only other item found in Shaw’s vehicle apart
from the contraband was a bag of fast food, the officers did not prepare a list of
property. Eventually, Shaw’s daughter arrived. Officer Kasper had discretion
to decide whether to tow the vehicle, and he decided not to do so in light of
Shaw’s and her passengers’ good behavior during the traffic stop. After
verifying that she had a valid driver’s license, Officer Kasper released Shaw’s
vehicle to Shaw’s daughter. Based on the contraband found during the
inventory search, Officer Kasper arrested all the occupants of the vehicle.
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[7] On August 30, 2017, the State filed an Information, charging Shaw with
possession of marijuana, a Class B misdemeanor; driving while suspended, a
Class A misdemeanor; and operating a motor vehicle without ever receiving a
license, a Class A misdemeanor. On January 31, 2018, Shaw filed a motion to
suppress any evidence obtained from the warrantless search of her vehicle. On
March 5, 2018, the trial court held a hearing on Shaw’s motion, which it denied
the same day, finding that the search was a valid inventory search. 1
[8] On July 19, 2018, the trial court conducted Shaw’s bench trial. Shaw renewed
her motion to suppress and further evidence was taken on the renewed motion.
When the trial court asked if Shaw had parked her vehicle in line with other
cars parked on the street, Officer Kasper responded, “Close to. It was at
somewhat of an angle” and “[t]he front end closer to the curb than the back
end.” (Trial Tr. Vol. II, p. 23). The State had GO 7.3 admitted into evidence.
The trial court denied Shaw’s renewed motion to suppress.
[9] At the conclusion of the evidence, the trial court found Shaw guilty as charged.
Directly following Shaw’s bench trial, the trial court sentenced her to 180 days
for possessing marijuana, one year for driving while suspended, and one year
for operating a motor vehicle without ever receiving a license. The trial court
suspended the entirety of the sentence to time served.
1
A copy of the trial court’s written order denying Shaw’s motion to suppress is not part of the record on
appeal.
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[10] Shaw now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Shaw challenges the admission of the evidence garnered from the inventory
search as fruit of an unlawful search under the Fourth Amendment and Article
I, Section 11, of our state constitution.
I. Standard of Review
[12] Trial courts have broad discretion to admit or exclude evidence. Blount v. State,
22 N.E.3d 559, 564 (Ind. 2014). A trial court’s decision on the admissibility of
evidence is reviewed for an abuse of discretion. Sams v. State, 71 N.E.3d 372,
376 (Ind. Ct. App. 2017). We will reverse that decision only where it is clearly
against the logic and effect of the facts and the error affects the defendant’s
substantial rights. Id. When reviewing the admission at trial of evidence
stemming from an inventory search, we do not reweigh evidence, and we
consider conflicting evidence in the light most favorable to the trial court’s
ruling. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). We also consider any
uncontroverted evidence favorable to the defendant. Id. “[T]he ultimate
determination of ‘reasonableness’ is a constitutional legal question meriting
independent consideration by this Court.” Id.II. Fourth Amendment
[13] The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. CONST. amend IV. A search conducted without a search
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warrant is per se unreasonable unless it fits within one of a few “specifically
established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S. 385,
390 (1978). When the State seeks to admit evidence garnered from a
warrantless search, it bears the burden of showing the need for an exemption
from the warrant requirement and that its conduct fell within the exception.
Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).
[14] One well-defined exception to the warrant requirement is the inventory search.
Illinois v. Lafayette, 462 U.S. 640, 642 (1983); Fair v. State, 627 N.E.2d 427, 431
(Ind. 1993). An inventory search is an exception because it serves an
administrative, not an investigatory, purpose—to document the contents of a
vehicle to preserve the owner’s property and to protect the State against claims
of stolen or lost property. South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
In order to establish the reasonableness of an inventory search, as a threshold
issue the State must show the propriety of the impoundment itself because the
need for the inventory arises from the impoundment. Fair, 627 N.E.2d at 431.
If the impoundment is not specifically authorized by statute, to show that the
impoundment of a vehicle was warranted, the State must demonstrate “(1) that
the belief that the vehicle posed some threat or harm to the community or was
itself imperiled was consistent with objective standards of sound policing, and
(2) that the decision to combat that threat by impoundment was in keeping with
established departmental routine or regulation.” Id. at 433 (citations omitted).
When assessing whether a vehicle posed a hazard, courts look at two main
factors, namely the degree to which the property where the vehicle was located
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was under the control of the defendant and the length of time the officer
impounding the car perceived that the car would be unattended. Id. at 434.
Ultimately, the inquiry is not whether impounding the vehicle was absolutely
necessary; rather, courts must determine whether the decision to impound was
reasonable in light of the applicable standard. Id. at 433.
[15] If the impoundment itself was warranted, the State must also establish that the
inventory search was conducted pursuant to standard police procedures.
Sansbury v. State, 96 N.E.3d 587, 592 (Ind. Ct. App. 2017). An inventory search
cannot be a pretext for a fishing expedition for incriminating evidence. Id. If
either the propriety of the impoundment or the scope of the inventory is
unreasonable, the search will not be upheld. Fair, 627 N.E.2d at 431.
[16] Here, there was no evidence from which it could be inferred that Officer Kasper
believed that Shaw’s vehicle was parked in a manner which posed a threat to
the community or which placed the vehicle itself in peril. He never testified as
such; rather, Officer Kasper testified that he decided to tow Shaw’s vehicle
simply because there was no licensed driver available to take possession of it.
The State did not attempt to show that Shaw parked her vehicle illegally, and
the evidence at the suppression hearing was that, at most, the vehicle was
slightly askew in relation to other parked cars on the same street. The fact that
Shaw’s car was not parked illegally or creating a traffic hazard militates against
the reasonableness of the impound. See Taylor, 842 N.E.2d at 331-32
(concluding the impound was unreasonable in part because it was unclear that
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vehicle was parked illegally, and, in any event, vehicle was not a potential
hazard to public safety).
[17] In addition, although the car was parked in what was considered to be a high-
crime area, other cars were parked on the same street that were unattended at
that late hour. This was not a case where Shaw’s would have been the sole
vehicle in a deserted area, rendering it more of a target. Contrary to the State’s
assertions, unlike the circumstances in Abran v. State, 825 N.E.2d 384, 390 (Ind.
Ct. App. 2005), trans. denied, where the truck at issue had items of value
exposed in its bed, there was no evidence here that Shaw’s car was particularly
susceptible to being stolen or vandalized. At the time he made the decision to
impound, Officer Kasper had also decided that he would not arrest Shaw for
driving without a valid license, and so there was no reason for him to believe
that her car would be left unattended for a long period of time. See Fair, 627
N.E.2d at 434.
[18] The State argues that it was reasonable for Officer Kasper to impound the
vehicle because, if he did not, Shaw or one of the unlicensed passengers would
have been likely to drive it away once the traffic stop was completed. However,
before deciding to impound the vehicle, Officer Kasper verified Shaw’s driving
status by looking at her driver record, a copy of which was admitted at the
suppression hearings. Those records indicated that Shaw’s home address was
only blocks away from the site of the traffic stop. The fact that Shaw lived just
a few blocks away would have been known to Officer Kasper when he made his
impound decision, and we find that it was unreasonable for him to assume that
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Shaw would attempt to drive home instead of walking home and arranging for
someone else with a valid driver’s license to retrieve the vehicle. Thus, we
cannot conclude that Officer Kasper’s decision to impound Shaw’s vehicle was
reasonable because there was no evidence that Officer Kasper believed,
consistent with standards of good policing, that the vehicle “posed some threat
or harm to the community or was itself imperiled.” See Fair, 627 N.E.2d at 433.
[19] We also conclude that Officer Kasper’s decision to impound Shaw’s vehicle
was not consistent “with established departmental routine or regulation.” Id.
GO 7.3 provided guidance on towing decisions in relevant part as follows:
I. Authority to Tow
A. Officers have the authority to tow and impound vehicles when
authorized by city ordinance or state statute, or as part of the
officers’ community caretaking function.
B. Officers must be aware of the current on the [sic] city
ordinances and state statutes that authorize the tow and
impoundment of vehicles. Some applicable legal authority is
provided in Section VII. below.
C. Community Caretaking Function
1. For a tow to be valid under this rationale, the following must
be shown:
a. The vehicle poses some threat or harm to the
community, or is itself in danger; and
b. Impoundment of the vehicle is in accordance with
established department policy.
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2. In assessing whether a particular vehicle constitutes a hazard
or is itself in danger, officers should consider:
a. The degree to which the property upon which the
vehicle is situated is under the control of the vehicle
owner/operator; and
b. The length of time the officer reasonably believes the
impounded car would be left unattended.
3. Not every vehicle illegally parked or left unattended can be
towed under the authority of the community caretaking function;
officers must be able to particularly describe why the vehicle is a potential
harm to the community or is itself in danger.
II. Vehicles Which May be Towed
Assuming proper authority exists under Section I. above, the
following vehicles may be towed and impounded:
****
F. Being operated by an unlicensed or suspended driver[.]
(State’s Exh. 3) (emphasis added). Thus, pursuant to GO 7.3, which largely
tracts the language of Fair, an officer could only tow a vehicle operated by an
unlicensed or suspended driver if that officer could particularly describe why the
vehicle is a hazard to the community or is itself in danger, which we have
already concluded that Officer Kasper did not, and could not, do in this case.
[20] The inventory search conducted on Shaw’s vehicle was invalid under the
Fourth Amendment, and, therefore, the trial court abused its discretion when it
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admitted evidence garnered from that search at trial. Because we conclude that
the State did not meet its burden of proof on the threshold issue of whether
Officer Kasper’s decision to impound was reasonable, we need not address the
validity of the scope of the search. See Fair, 627 N.E. at 431. In addition,
having concluded that the search of Shaw’s vehicle did not fall within the
inventory search exception to the warrant requirement under the Fourth
Amendment, we do not address Shaw’s state constitutional claim. See Berry v.
State, 967 N.E.2d 87, 92 n.3 (Ind. Ct. App. 2012) (concluding that the search of
his vehicle violated the Fourth Amendment and declining to address Berry’s
state constitutional claim).
CONCLUSION
[21] Based on the foregoing, we conclude that the trial court abused its discretion
when it admitted evidence that was procured from an invalid inventory search
of Shaw’s vehicle.
[22] Reversed.
[23] Bailey, J. and Pyle, J. concur
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