Anthony Ector v. State of Indiana ( 2018 )

FILED
Oct 18 2018, 5:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Ector, October 18, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1710-CR-2422
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
Trial Court Cause No.
49G20-1604-F2-12806
Najam, Judge.
Statement of the Case
[1] Anthony Ector appeals his convictions, following a jury trial, for dealing in
cocaine, as a Level 2 felony; dealing in marijuana, as a Level 5 felony;
possession of a narcotic drug, as a Level 5 felony; and for being a habitual
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offender. Ector raises a single issue for our review, namely, whether the trial
court erred under Article 1, Section 11 of the Indiana Constitution when it
admitted evidence that had been seized pursuant to a warrantless search of a
vehicle, which was parked in the driveway of a residence that officers had a
warrant to search and in which residence the officers had found Ector along
with substantial amounts of contraband.
[2] We affirm.1
Facts and Procedural History2
[3] On April 1, 2016, Indianapolis Metropolitan Police Department (“IMPD”)
officers executed a search warrant at a “trap house” in Indianapolis. A “trap
house” is a house used “to sell narcotics,” and, “if anyone stays there, it’s[ ]on
an infrequent basis” such that there are not “a lot of personal items there that
could be traced back to an individual.” Tr. Vol. II at 17. Officers would not
“expect somebody to live” in such a house. Id. Although no one was known to
live in the house being searched, the house nonetheless had bars over the
windows, barricaded doors, and security cameras around the exterior. The
search warrant specifically permitted officers to seize any keys found inside the
residence for the purposes of “aid[ing] in the identification of the individuals
1
We held oral argument in the Lincoln Amphitheatre in Lincoln State Park in Spencer County on
September 10, 2018.
2
In Ector’s briefs on appeal, he provides citations to the record in support of his assertions of facts only at
the end of paragraphs rather than at the end of sentences. This practice impedes our review as it provides
lengthy citation ranges and does not clearly correlate a specific citation to a specific assertion.
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involved in the trafficking of controlled substances at the residence . . . or which
may provide evidence of the connection of such individuals to the
residence . . . .” Ex. Vol. I at 59-60.3
[4] Upon entering the residence, officers observed Ector standing near a staircase
and holding an AK-47 assault rifle. A nearby officer “pointed [his rifle] at Mr.
Ector, clicked off the safety, and advised him [to] please drop the gun.” Tr.
Vol. III at 32. Ector threw his firearm toward a nearby couch and fled into
another room. Officers pursued and apprehended him. Officers also detained
two other individuals inside the residence: Kevin Rent and Charles Polk.
[5] Inside the residence, officers seized the following items:
• a Glock 22 handgun with an extended magazine;
• three bags containing cocaine with an aggregate weight of 146.6 grams
(about one-third of one pound);
• a duffel bag and a trash bag containing marijuana with an aggregate
weight of approximately 6,733 grams (just shy of fifteen pounds);
• four scales, several small plastic baggies, and items with narcotics and
heroin residue on them;
• approximately $2,000 on Ector and Rent, mostly in twenty dollar bills;
• a bottle of sleeping-aid pills used to cut heroin;
• Polk’s resume;
• a photograph of Ector and Polk together;
• Rent’s debit card; and
• keys found in the dining room.
3
Our pagination of the Exhibits Volume is based on the .pdf pagination.
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[6] Outside the residence were two vehicles parked in the driveway of the
residence: a Chevrolet Trailblazer and a Toyota Camry. On his person, Rent
had keys to the Trailblazer and also to the front door of the house. Officers
contacted the Bureau of Motor Vehicles (“BMV”) to identify the owner of the
vehicle based on the registration plate number. The BMV informed the officers
that Rent owned the Trailblazer.
[7] Officers asked the three men who owned the keys that had been found in the
dining room, but no one claimed the keys. Officers discovered that the keys
opened the Toyota Camry in the driveway. A check of the Camry’s registration
plate number with the BMV revealed that it was registered to Anna Smith,
Ector’s mother.4
[8] One of the officers on the scene, Detective Jeremy Gates, had observed the
Camry at the house on at least two prior occasions while he was conducting
surveillance on the house prior to having obtained the warrant. When none of
the three men claimed the Camry’s keys, Detective Gates concluded that the
Camry was subject to forfeiture, opened the Camry, and conducted an
inventory search of it.5 Inside, officers observed a “small bud” of marijuana on
4
It is not clear from the record on appeal when officers learned that Smith was Ector’s mother, but it appears
to have been sometime after the search and seizure of the Camry.
5
Although the State later filed a complaint for forfeiture of the cash found on Ector, the State’s complaint
did not seek to have the Camry forfeited.
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“the floorboard right next to the front door.” Tr. Vol. III at 75. Officers then
searched the vehicle and discovered the following:
• $4,500 in cash;
• financial documents addressed to Ector;
• a ledger; and
• a key underneath the back seat.
In discovering the key inside the Camry, the searching officer had to “lift up”
the back seat; no “tool[] or any sort of strength” was required to “pull [the seat]
up.” Tr. Vol. II at 56. Officers then tried the key on the front door of the
house. The key unlocked the front door.
[9] Thereafter, the State filed numerous charges against Ector. Ector filed a motion
to suppress the evidence seized from the Camry under Article 1, Section 11 of
the Indiana Constitution, which the trial court denied. 6 At his ensuing jury
trial, Ector renewed his Article 1, Section 11 objection to the admission of the
evidence seized from the Camry,7 but the court overruled his objection.
[10] Ector’s theory in defense of the charges was that he was a casual visitor at the
residence, and, in effect, he was simply at the wrong place at the wrong time
when the search warrant was executed. The jury rejected his defense and,
6
Ector’s written motion to suppress was based on both the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. Appellant’s App. Vol. II at 77. However,
at the suppression hearing, he clarified that his motion was “under the Indiana Constitution.” Tr. Vol. II at
96.
7
In his objection at trial, Ector expressly “concede[d] that [the search of the Camry was] permitted under the
[F]ourth [A]mendment . . . .” Id. at 242.
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following the jury’s verdict, the trial court entered judgment of conviction
against Ector for dealing in cocaine, as a Level 2 felony; dealing in marijuana,
as a Level 5 felony; possession of a narcotic drug, as a Level 5 felony; and for
being a habitual offender. The court then sentenced Ector to an aggregate term
of thirty years in the Department of Correction. This appeal ensued.
Discussion and Decision8
Standard of Review and Article 1, Section 11
[11] Ector’s argument that the State violated his “Article 1, Section 11 rights” raises
a “question[] of law we review de novo.”9 Redfield v. State, 78 N.E.3d 1104, 1106
(Ind. Ct. App. 2017) (quotation marks omitted), trans. denied. “[A]s a general
matter[,] determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal,” while “findings of historical fact” underlying those
determinations are reviewed “only for clear error.” Ornelas v. United States, 517
U.S. 690, 699 (1996); see McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014)
8
Insofar as Ector suggests on appeal that his Fourth Amendment rights were also violated, he has not
preserved that issue for our review. Similarly, in his brief on appeal Ector argues that the seizure of the key to
the Camry from inside the residence was not within the scope of the warrant. Ector did not raise that
argument in the trial court. See Tr. Vol. II at 242-49. Accordingly, we do not consider that purported issue.
Finally, we also do not consider Ector’s standing under Article 1, Section 11. While Ector argues in his brief
that he had standing to object to the admission of evidence seized from his mother’s Camry, the State does
not argue otherwise in its brief on appeal.
9
Insofar as Ector suggests in his brief that he is appealing from the denial of his motion to suppress, Ector is
incorrect. The evidence was presented to a jury, and Ector objected to the admission of the evidence at trial.
“Thus, he is appealing from that admission, not from the prior denial of his motion to suppress.” Redfield v.
State, 78 N.E.3d 1104, 1106 n.3 (Ind. Ct. App. 2017), trans. denied. Further, insofar as the parties’ briefs
suggest that our review is for an abuse of discretion, which is “our typical standard of review for challenges to
the admission of evidence,” id., the parties again are incorrect. “[T]he issues in this appeal are constitutional
questions and, as such, we review them de novo.” Id.
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(applying that standard under Ind. Const. art. 1, § 11). “In other words, we
review whether reasonable suspicion or probable cause exists under a standard
similar to other sufficiency issues—whether, without reweighing the evidence,
there is substantial evidence of probative value that supports the trial court’s
decision.” Redfield, 78 N.E.3d at 1106 (quotation marks omitted).
[12] Regarding Article 1, Section 11, our Supreme Court has explained as follows:
In recent years, this Court has expressed that “[t]he legality of a
governmental search under the Indiana Constitution turns on an
evaluation of the reasonableness of the police conduct under the
totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356,
359 (Ind. 2005) (citing Moran [v. State], 644 N.E.2d [536, 539
(Ind. 1994)]). To determine whether a residential entry violated
Article 1, Section 11, we apply a “totality-of-the-circumstances
test to evaluate the reasonableness of the officer’s actions.”
Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). A more elaborate
explanation and methodology for evaluating such reasonableness
is provided in Litchfield:
In sum, although we recognize there may well be other
relevant considerations under the circumstances, we have
explained reasonableness of a search or seizure as turning
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.
824 N.E.2d at 361.
Lacey v. State, 946 N.E.2d 548, 550 (Ind. 2011) (some citations omitted).
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[13] Ector contends on appeal that his Article 1, Section 11 rights were violated in
two respects. First, he argues that the State’s purported need to inventory the
Camry was merely a pretext to engage in an unlawful evidentiary search.
Second, he argues that, regardless of whether the inventory search was
pretextual, the search was unconstitutional under the three Litchfield factors.
We address each of Ector’s arguments in turn.
Inventory Search
[14] The parties first dispute whether the seizure of the evidence from within the
Camry was lawful under the inventory-search exception to the warrant
requirement of Article 1, Section 11. “A valid inventory search is an exception
to the warrant requirement.” Whitley v. State, 47 N.E.3d 640, 645, 649 (Ind. Ct.
App. 2015), trans. denied. “Police are permitted to conduct a warrantless search
of a lawfully impounded vehicle if the search is designed to produce an
inventory of the vehicles contents.” Id. 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.” Id.
[15] “[T]he test of constitutionality in inventory cases is reasonableness.” Id. at 645.
As we have explained:
In determining the reasonableness of an inventory search, we
examine all the facts and circumstances of the case. We consider
the propriety of the impoundment giving rise to the search and
the scope of the inventory search itself. The search must be
conducted pursuant to and in conformity with standard police
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procedures. 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.”
Id.
[16] As such, “proper impoundment is the ‘threshold question’ to [a] valid inventory
search.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). As our Supreme
Court has further explained:
Impoundment is reasonable if it is authorized either by statute or
the police’s discretionary community-caretaking function.
Impoundment pursuant to a statute is necessarily reasonable
because the Legislature has deemed that citizens’ privacy
interests in their cars yield to State interests in those
circumstances, making police inventorying a necessary collateral
administrative function. Discretionary impoundment, by
contrast, is an exercise of the police community-caretaking
function in order to protect the car and community from hazards.
Discretionary impoundments, too, may be reasonable—
but . . . they are vulnerable to constitutional reasonableness
challenges because of their potential for misuse as pretext for
warrantless investigative searches under the guise of inventory.
Unless the impoundment is proper, then, an inventory search is
per se unreasonable and any contraband found during the search
is inadmissible “poisoned fruit.”
Id. (citations omitted).
[17] Ector first contends that the decision to impound the Camry was improper
because the “decision was made to place a forfeiture hold on the Camry before
the police had sufficient evidence” to do so. Appellant’s Br. at 20. Specifically,
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he asserts that the State “needed to further investigate whether the car
could . . . be forfeited” by “taking the house key from the car and inserting it
into the lock.” Id. at 18, 20. In other words, Ector contends that the nexus
required under Indiana Code Section 34-24-1-1(a)(1) (2018) was not established
until after the key found in the car was shown to unlock the residence.
[18] We cannot agree. The key discovered within the Camry had no bearing on the
officers’ decision to impound the Camry, which decision had been made prior
to opening the Camry, searching it, and finding the house key. Rather, the
impoundment decision was based on the arrests of those at the residence, that
the residence was not a manufacturing setting, and the reasonable likelihood
that the Camry had been used in the transportation of contraband.
[19] Indiana Code Section 34-24-1-1(a)(1) permits an officer to seize for purposes of
forfeiture any vehicle that is “used . . . by the person . . . in possession of [it] to
transport or in any manner facilitate the transportation of” a controlled
substance. Such a seizure is permissible where, as here, “the seizure is incident
to a lawful[ ]arrest.” I.C. § 34-24-1-2(a)(1)(A); see also Serrano v. State, 946
N.E.2d 1139, 1142-43 (Ind. 2011) (“to sustain a forfeiture the State must
demonstrate” a “nexus” between “the property sought” and “one of the
enumerated offenses under the statute”). And IMPD policy likewise permits a
vehicle to be towed and impounded if that vehicle was “operated by [a] person
under custodial arrest for any charge.” Ex. Vol. I. at 29.
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[20] There is no dispute that Ector, Rent, and Polk were under lawful arrest when
officers decided to impound the Camry. And the decision to impound the
Camry was reasonable in light of the facts before the officers at the scene. Their
decision was supported by the substantial amounts of contraband and firearms
found within what was otherwise an apparently abandoned trap house.
Further, the Trailblazer, the only other vehicle at the residence, belonged to
Rent, while the Camry was registered to a third party not present at the
residence, whom officers later learned to be Ector’s mother. And Detective
Gates had twice previously observed the Camry at the residence. In light of the
facts before the officers, we agree with the State on appeal that “[t]he only
reasonable conclusion is that the vehicles on the scene were used to transport,
and/or facilitate the transport, the drugs to the trap house for purposes of
dealing.” Appellee’s Br. at 17. Accordingly, the decision to impound the
Camry was reasonable and, thus, constitutional.
[21] Nonetheless, Ector also contends that the officers’ search of the Camry
“violated IMPD policy” because it was “excessive in scope and unreasonable.”
Appellant’s Br. at 20. In support of that position, Ector notes that IMPD’s
policy on inventory searches states that such searches “should not be motivated
by an officer’s desire to investigate and seize evidence of a criminal act,” and
that the policy requires opening locked areas of the vehicle only “[i]f a key is
available.” Ex. Vol. I at 32. Ector then asserts that the search here, which
involved lifting up the back seat to reveal the house key, was excessive under
IMPD’s policy.
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[22] We cannot agree that the searching officer’s lifting of the back seat was
excessive under IMPD’s policy. The policy language does not prohibit any
such act, nor does the policy limit an inventory search to a visual search only.
Further, the searching officer testified to the trial court at the suppression
hearing that “it’s a common practice . . . to search the entire vehicle,” which
included “underneath the rear seat . . . .” Tr. Vol. II at 55-56. Thus, the
evidence is sufficient to support the trial court’s judgment on this issue.10 See
Redfield, 78 N.E.3d at 1106.
Article 1, Section 11 Factors
[23] The parties also dispute whether the search of the Camry was lawful under the
three Article 1, Section 11 factors noted above. Again, those factors are (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. E.g., Litchfield,
824 N.E.2d at 361.
[24] In support of his position on this issue, Ector asserts that the degree of concern,
suspicion, or knowledge that a violation had occurred “was low and the
intrusion was great when the car was impounded and the house key was used to
further the investigation into Anthony Ector’s role in the trap house . . . .”
10
We need not consider the State’s alternative argument on appeal that, because officers immediately
observed marijuana on the floor of the car upon opening the car door, the officers had probable cause to
conduct a warrantless search of the entire vehicle regardless of the language of the IMPD policy.
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Appellant’s Br. at 25 (citations to the record omitted). And while Ector then
concedes that “the police had a clear need for evidence from the Camry,” he
asserts that “it was unreasonable to perform a pretextual search lacking in
probable cause in lieu of obtaining consent or a warrant.” Id.
[25] We cannot agree with Ector’s assessment. Rather, we agree with the State that
the Article 1, Section 11 factors weigh heavily in the State’s favor. As the State
summarizes on appeal, the degree of suspicion here was high:
[Ector] and his two co-defendants were found in a trap house
with barred windows and video surveillance. When police
entered the house, [Ector] was attempting to protect the 146
grams of cocaine[] and almost 15 pounds of marijuana with a
stolen AK-47. Det. Gates testified that[,] based on his training
and experience, the “vehicles were utilized to transport, or were
financed directly through the sales of[,] narcotics.” There were
only two cars in the driveway and three individuals inside.
Further, Det. Gates[] indicated that[,] while conducting
surveillance on the house, he [had] observed the Camry at the
trap house on multiple occasions.
Appellee’s Br. at 24-25 (citations to the record omitted).
[26] Further, any intrusion into Ector’s privacy in the search of his mother’s vehicle
was minimal, and nothing about the manner or timing of the search intruded on
Ector’s ordinary activities. And the needs of law enforcement also weigh in the
State’s favor. Again, the officers were justified in taking the Camry into their
custody for forfeiture, and, thus, they had an established need to inventory the
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Camry pursuant to that forfeiture. In sum, the search of the Camry was
reasonable under Article 1, Section 11.
[27] Accordingly, we cannot say that the trial court’s admission of the evidence
seized from the Camry violated Ector’s rights under Article 1, Section 11, and
we affirm Ector’s convictions.
[28] Affirmed.
Bailey, J., and May, J., concur.
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