Carmen Nicolle Harbaugh v. State of Indiana (mem. dec.) , 96 N.E.3d 102 ( 2018 )


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  •                                                                         FILED
    Mar 09 2018, 8:38 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Russell B. Cate                                           Curtis T. Hill, Jr.
    Cate, Terry & Gookins LLC                                 Attorney General of Indiana
    Carmel, Indiana
    Ian McLean
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Carmen Nicolle Harbaugh,                                  March 9, 2018
    Appellant-Defendant,                                      Court of Appeals Case No.
    29A04-1706-CR-1228
    v.                                                Appeal from the Hamilton
    Superior Court
    State of Indiana,                                         The Honorable Jonathan M.
    Appellee-Plaintiff                                        Brown, Judge
    Trial Court Cause No.
    29D02-1507-F4-6405
    May, Judge.
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                    Page 1 of 10
    [1]   Carmen Nicolle Harbaugh appeals her convictions of Level 4 felony dealing in
    cocaine, 1 Level 4 felony dealing in methamphetamine, 2 Level 6 felony
    possession of cocaine, 3 Level 6 felony possession of methamphetamine, 4 Class
    B misdemeanor possession of marijuana, 5 and Class C misdemeanor possession
    of paraphernalia. 6 She argues the trial court abused its discretion when it
    admitted the evidence obtained as part of the search of her vehicle. She
    presents two issues for our review, one of which we find dispositive: whether
    the State presented sufficient evidence officers had probable cause to conduct a
    warrantless search of her vehicle. We affirm.
    Facts and Procedural History                            7
    [2]   On July 25, 2015, Westfield Police Captain John Lowes was conducting
    surveillance in plain clothes and in an unmarked police car. At approximately
    2:00 p.m., a black Chevy Blazer passed his location. Captain Lowes recognized
    the vehicle, which belonged to Harbaugh, and one of the occupants of the
    1
    
    Ind. Code § 35-48-4-1
    (c) (2014).
    2
    
    Ind. Code § 35-48-4-1
    .1(c) (2014).
    3
    
    Ind. Code § 35-48-4-6
    (a) (2014).
    4
    
    Ind. Code § 35-48-4-6
    .1(a) (2014).
    5
    
    Ind. Code § 35-48-4-11
    (a).
    6
    
    Ind. Code § 35-48-4-8
    .3(b).
    7
    We held oral argument on this matter on February 5, 2018, at Milan High School in Milan, Indiana. We
    thank the teachers and staff of Milan High School for their hospitality and counsel for their able
    presentations.
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                    Page 2 of 10
    vehicle, Harbaugh, from prior encounters. He believed the driver of the vehicle
    to be Harbaugh’s boyfriend, Jacob Beach. Captain Lowes knew Beach’s
    driving privileges were suspended and Beach had an outstanding arrest warrant
    for a probation violation. Captain Lowes followed the Chevy Blazer and
    contacted Sergeant Robert Dine for back up.
    [3]   Captain Lowes observed neither Harbaugh nor Beach was wearing a seatbelt.
    In addition, Captain Lowes saw the Blazer fail to stop at an intersection and the
    license plate on the vehicle was expired. He relayed this information to
    Sergeant Dine, who pulled the Blazer over in a fast food parking lot. Sergeant
    Dine approached the vehicle, confirmed Beach’s identity, and asked him to exit
    the vehicle. After a brief scuffle, Captain Lowes and Sergeant Dine arrested
    Beach.
    [4]   While Captain Lowes and Sergeant Dine were arresting Beach, K9 Officer
    Song Kang arrived on the scene with his K9 partner, Gorky. Captain Lowes
    decided to impound the Blazer because its license plate was expired, and he
    asked Harbaugh to exit the vehicle. She did so and sat down at a nearby picnic
    table.
    [5]   Officer Kang deployed Gorky “for a sniff of the vehicle[.]” (Tr. Vol. II at 23.)
    Gorky alerted on a zipped black bag in the middle of the back seat of the
    vehicle. Officer Kang opened the bag and found a small wooden box. Inside
    the wooden box, officers found plastic bags containing white powder and white
    crystalline substances, cash, Ziploc bags, and green plant material. Also in the
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 3 of 10
    black bag were digital scales and pills. Officer Kang found Harbaugh’s purse in
    the car. Inside the purse, he found several pills, some pills packaged for
    individual sale in small plastic bags, bags with a white powder residue, and a
    cell phone. Three compact mirrors with powder residue on them were also
    found inside the vehicle. Sergeant Dine place Harbaugh in handcuffs, and a
    female officer on the scene, Officer Angela Martin, conducted a search of
    Harbaugh’s person and discovered three pills, a small plastic bag containing a
    white crystalline substance, three small broken pieces of straw, and a broken
    portion of an ink pen. The officers placed Harbaugh under arrest.
    [6]   On July 27, 2015, the State charged Harbaugh with Level 4 felony dealing in
    cocaine, Level 4 felony dealing in methamphetamine, Level 6 felony possession
    of cocaine, Level 6 felony possession of marijuana, Level 6 felony maintaining
    a common nuisance, 8 Class A misdemeanor possession of a controlled
    substance, 9 Class B misdemeanor possession of marijuana, and Class C
    misdemeanor possession of paraphernalia. On December 30, 2015, Harbaugh
    filed a motion to suppress. The trial court held a hearing on the motion to
    suppress on May 13, 2016, and denied the motion.
    [7]   On April 17, 2017, the State moved to dismiss the Level 6 felony maintaining a
    common nuisance and Class B misdemeanor possession of a controlled
    8
    
    Ind. Code § 35-48-4-13
    (b)(1) (2014).
    9
    
    Ind. Code § 35-48-4-7
    (a).
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 4 of 10
    substance charges, and the trial court granted the request. Harbaugh’s jury trial
    began on April 18, 2017. The jury returned a guilty verdict on all remaining
    counts. On May 19, 2017, the trial court sentenced Harbaugh to an aggregate
    sentence of nine years with four years suspended.
    Discussion and Decision
    [8]    The trial court admitted the evidence collected as part of the vehicle search.
    Harbaugh did not seek interlocutory review of the denial of her motion to
    suppress but instead appeals following trial. This issue is therefore
    “appropriately framed as whether the trial court abused its discretion by
    admitting the evidence at trial.” Lundquist v. State, 
    834 N.E.2d 1061
    , 1067 (Ind.
    Ct. App. 2005).
    [9]    Our review of rulings on the admissibility of evidence is essentially the same
    whether the challenge is made by a pre-trial motion to suppress or by trial
    objection. 
    Id.
     We do not reweigh the evidence, and we consider conflicting
    evidence most favorable to the trial court’s ruling. 
    Id.
     However, we must also
    consider the uncontested evidence favorable to the defendant. 
    Id.
    [10]   Harbaugh argues the search of her vehicle violated her rights under the Fourth
    Amendment and Article 1, Section 11 of the Indiana Constitution because the
    interior search of the vehicle by Officer Kang’s K9 Gorky occurred “without
    probable cause, a warrant, or her consent.” (Br. of Appellant at 20.)
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 5 of 10
    Fourth Amendment
    [11]   The Fourth Amendment to the United States Constitution and Article I,
    Section 11 of the Indiana Constitution protect an individual’s privacy and
    possessory interests by prohibiting unreasonable searches and seizures.
    Lundquist, 
    834 N.E.2d at 1067
    . Generally, to be lawful, a search must be
    conducted after police obtain a judicially issued search warrant. 
    Id.
     When a
    search is conducted without a warrant, the State has the burden of proving an
    exception to the warrant requirement permits the admission of the evidence
    collected. 
    Id.
    [12]   The “automobile exception” to the warrant requirement allows police to search
    a vehicle without obtaining a warrant if they have probable cause to believe the
    vehicle contains evidence of a crime. State v. Hobbs, 
    933 N.E.2d 1281
    , 1285
    (Ind. 2010). Under this exception, “an operational vehicle is inherently mobile,
    whether or not a driver is behind the wheel or has ready access.” 
    Id. at 1286
    . A
    dog sniff of the exterior of the vehicle indicating the presence of illicit
    substances provides probable cause for a warrantless search of the interior of the
    vehicle under the automobile exception. 
    Id.
    [13]   Harbaugh does not argue about whether her vehicle was inherently mobile.
    Instead, Harbaugh argues the State did not provide evidence Officer Kang’s K9
    partner alerted outside her vehicle prior to entering the vehicle and finding
    narcotics. Thus, she contends, the officers did not have probable cause to
    search the interior of her vehicle without a warrant.
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018      Page 6 of 10
    [14]   During trial, Officer Kang testified he “deployed [Gorky] into the vehicle[.]”
    (Tr. Vol. III at 25.) However, Sergeant Dine testified, during the Motion to
    Suppress hearing, “the dog indicated on the vehicle.” (Tr. Vol. II at 23.) Our
    standard of review requires we consider the facts in the light most favorable to
    the State. See Lundquist, 
    834 N.E.2d at 1067
     (appellate court considers facts in
    the light most favorable to the State). Thus, Gorky’s alert outside Harbaugh’s
    car created probable cause to search the vehicle under the automobile exception
    to the Fourth Amendment. See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff
    resulting in alert for narcotics constitutes probable cause for interior search of
    vehicle under automobile exception to the Fourth Amendment).
    [15]   We acknowledge that Harbaugh’s main contention on appeal is that Gorky
    never alerted outside the vehicle, only alerted once inside the vehicle, and the
    interior sniff of her vehicle which resulted in the discovery of contraband
    violated her constitutional rights under the Fourth Amendment and Article 1,
    Section 11 of the Indiana Constitution. Had there only been evidence that
    Gorky alerted inside the vehicle, see Tr. Vol. III at 25 (Officer Kang testified he
    “deployed [Gorky] into the vehicle”), this would have been an issue of first
    impression in Indiana. However, since the State also presented evidence Gorky
    alerted outside the vehicle, we need not address the legality of an interior dog
    sniff. See Lundquist, 
    834 N.E.2d at 1067
     (appellate court cannot reweigh
    evidence or judge the credibility of witnesses).
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 7 of 10
    Article 1, Section 11
    [16]   The language of Article 1, Section 11, the search and seizure provision of the
    Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth
    Amendment counterpart. Article 1, Section 11 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.
    Our Indiana Supreme Court has interpreted and applied Section 11
    independently from federal Fourth Amendment jurisprudence. Mitchell v. State,
    
    745 N.E.2d 775
    , 786 (Ind. 2001).
    [17]   To determine whether a search violates Article 1, Section 11 of the Indiana
    Constitution, we must evaluate the “reasonableness of the police conduct under
    the totality of the circumstances.” Litchfield v. State, 
    824 N.E.2d 356
    , 359 (Ind.
    2005). “The totality of the circumstances requires consideration of both the
    degree of intrusion into the subject’s ordinary activities and the basis upon
    which the officer selected the subject of the search or seizure.” 
    Id. at 360
    . In
    Litchfield, our Indiana Supreme Court summarized this evaluation:
    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
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 8 of 10
    or seizure imposes on the citizens’ ordinary activities, and 3) the
    extent of law enforcement needs.
    
    Id. at 361
    .
    [18]   Here, Gorky’s indication to the presence of narcotics on the exterior of
    Harbaugh’s vehicle provided a “degree of concern, suspicion, or knowledge that
    a violation occurred.” See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff
    resulting in alert for narcotics constitutes probable cause for interior search of
    vehicle under automobile exception to the Fourth Amendment). The interior
    search of Harbaugh’s vehicle likely imposed a degree of intrusion into her
    ordinary activities; however, law enforcement need was elevated because, while
    she could not do so legally because the license plates were expired, Harbaugh
    could have absconded with the vehicle as it was operable at the time and she
    had not yet been arrested. The totality of the circumstances leads us to
    conclude the officers’ search was reasonable. See Myers v. State, 
    839 N.E.2d 1146
    , 1154 (Ind. 2005) (upholding warrantless automobile search under similar
    circumstances). 10
    Conclusion
    10
    Harbaugh also argues the inventory search of her vehicle was improper for a variety of reasons including
    the use of Gorky in the search, the lack of inventory slip indicating the items in the car, and the opening of
    closed containers. While we will not address this issue as the probable cause issue is dispositive, we remind
    the Westfield Police Department of the importance of complying with published department policy when
    conducting an inventory search.
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                           Page 9 of 10
    [19]   Gorky’s alert to the presence of narcotics supplied probable cause for officers to
    engage in a warrantless search of Harbaugh’s car under the automobile
    exception of the Fourth Amendment. Similarly, based on the totality of the
    circumstances, the warrantless search did not run afoul of Article 1, Section 11
    of the Indiana Constitution. Therefore, the trial court did not abuse its
    discretion when it admitted evidence obtained as part of the warrantless search
    of Harbaugh’s vehicle. Accordingly, we affirm her convictions.
    [20]   Affirmed.
    Najam, J., and Altice, J., concur.
    Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 10 of 10
    

Document Info

Docket Number: 29A04-1706-CR-1228

Citation Numbers: 96 N.E.3d 102

Judges: May

Filed Date: 3/9/2018

Precedential Status: Precedential

Modified Date: 10/19/2024