Eduardo Cruz-Salazar v. State of Indiana , 2016 Ind. App. LEXIS 216 ( 2016 )

FILED
Jun 30 2016, 9:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eduardo Cruz-Salazar, June 30, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1511-CR-1782
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kelly Noel
Appellee-Plaintiff. Kinkade, Judge Pro Tempore
Trial Court Cause No.
49G14-1312-FD-81376
Najam, Judge.
Statement of the Case
[1] Eduardo Cruz-Salazar appeals his conviction for possession of cocaine, as a
Class A misdemeanor, following a bench trial. He presents two issues for our
review, which we consolidate and restate as whether the trial court abused its
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discretion when it admitted into evidence the cocaine a police officer found on
his person after his arrest for public intoxication.
[2] We affirm.
Facts and Procedural History
[3] At approximately 6:42 a.m. on December 29, 2014, Indianapolis Metropolitan
Police Department Officer Mark Ayler responded to a report of a suspicious
vehicle, described as a blue or turquoise truck, that had been parked on the
street in front of a residence at 5831 Sunwood Drive in Indianapolis for
approximately thirty minutes. Upon his arrival at that address, Officer Ayler
saw a blue Chevy Silverado truck parked on the street. Officer Ayler “shined
[a] spotlight on the vehicle to see if anyone was inside the vehicle[,]” and he
saw a man, later identified as Cruz-Salazar, sitting in the driver’s seat. Tr. at 8.
The man “appeared to be either sleeping or passed out.” Id. Officer Ayler
“approached the vehicle, tapped on the window a couple of times[,]” but Cruz-
Salazar did not respond. Id. Accordingly, Officer Ayler “opened the door to
check on [Cruz-Salazar’s] welfare.” Id.
[4] Once the door was open, Officer Ayler “shook [Cruz-Salazar] a little bit and
made contact with him.” Id. at 9. Officer Ayler asked Cruz-Salazar for his
identification, which he provided. Officer Ayler noticed that Cruz-Salazar “had
bloodshot, watery eyes” and “slurred speech[.]” Id. at 9-10. Officer Ayler
asked Cruz-Salazar whether he had been drinking, and he responded that he
had been drinking “a little bit.” Id. at 10. Based on his training and experience,
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Officer Ayler concluded that Cruz-Salazar was intoxicated. Indeed, after
Officer Ayler asked Cruz-Salazar to exit the truck, Cruz-Salazar was “unsteady
on his feet.” Id. at 11. Officer Ayler asked Cruz-Salazar “how he [had gotten]
there in the vehicle[,] and he stated [that] he did not remember.” Id. Officer
Ayler administered a portable breath test, and Cruz-Salazar registered a BAC of
.184.
[5] “At that point, [Officer Ayler] tried to assist [Cruz-Salazar] in maybe calling
someone to come and get him due to the [cold weather] and [because] he was
very intoxicated[.]” Id. Cruz-Salazar gave Officer Ayler a phone number, but
when Officer Ayler called that number, he got no answer. Officer Ayler then
arrested Cruz-Salazar for public intoxication. During a search incident to that
arrest, Officer Ayler found a “plastic baggie in his right front pant[s] pocket that
contained a white powdery substance” that he suspected to be cocaine. Id. at
12. Subsequent tests confirmed that the substance was cocaine.
[6] The State charged Cruz-Salazar with possession of cocaine, as a Class D felony.
Cruz-Salazar moved to suppress the evidence alleging that the search and
seizure violated the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Indiana Constitution. The trial court denied that
motion and, following a bench trial, found Cruz-Salazar guilty of possession of
cocaine, as a Class A misdemeanor. The trial court entered judgment and
sentenced Cruz-Salazar to 365 days, all suspended, and 180 days of probation.
This appeal ensued.
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Discussion and Decision
Fourth Amendment and Article 1, Section 11
[7] Cruz-Salazar contends that Officer Ayler violated his right to be free from an
unreasonable search and seizure under the Fourth Amendment to the United
States Constitution and Article 1, Section 11 of the Indiana Constitution. In
particular, Cruz-Salazar maintains that Officer Ayler detained and questioned
him without reasonable suspicion that he was engaged in or about to be
engaged in criminal activity. The State contends that Officer Ayler’s conduct
was reasonable because Cruz-Salazar had no legitimate privacy interest when
he was “publicly observed unconscious in a running pickup truck on the side of
the road at 6:30 a.m.” Appellee’s Br. at 11. The State also contends that
Officer Ayler’s conduct was consistent with his community caretaking function
and, as such, did not implicate Cruz-Salazar’s rights under either the federal or
state constitution. We agree with the State that the community caretaking
function exception applies here.
[8] Cruz-Salazar is appealing from the trial court’s admission of the evidence
following a completed trial. A trial court is afforded broad discretion in ruling
on the admissibility of evidence, and we will reverse such a ruling only upon a
showing of an abuse of discretion. Washington v. State, 784 N.E.2d 584, 587
(Ind. Ct. App. 2003). An abuse of discretion involves a decision that is clearly
against the logic and effect of the facts and circumstances before the court. Id.We will not reweigh the evidence, and we consider conflicting evidence in the
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light most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214,
218 (Ind. Ct. App. 2005), trans. denied.
[9] In Clark v. State, 994 N.E.2d 252, 260-62 (Ind. 2013), our supreme court set out
the applicable law as follows:
The Fourth Amendment to the U.S. Constitution protects
persons from unreasonable search and seizure by prohibiting, as
a general rule, searches and seizures conducted without a
warrant supported by probable cause. U.S. Const. amend. IV;
Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998). As a deterrent
mechanism, evidence obtained in violation of this rule is
generally not admissible in a prosecution against the victim of the
unlawful search or seizure absent evidence of a recognized
exception. Mapp v. Ohio, 367 U.S. 643, 649-55 (1961) (extending
exclusionary rule to state court proceedings). It is the State’s
burden to prove that one of these well-delineated exceptions is
satisfied. Berry, 704 N.E.2d at 465.
[10] In Osborne v. State, --- N.E.3d ---, 2016 WL2756467 *4 (Ind. Ct. App. May 12,
2016), not yet certified, this court explained the community caretaking exception
to the Fourth Amendment as follows:
The concept of a “community caretaking function” was first
articulated in Cady v. Dombrowski, 413 U.S. 433, 441, 443 (1973),
where, following an accident, officers conducted a warrantless
search of an impounded vehicle in an effort to locate a firearm
that the driver was known to possess in order “to protect the
public from the possibility that a revolver would fall into
untrained or perhaps malicious hands.” There, the Supreme
Court stated that due to
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the extensive regulation of motor vehicles and traffic,
and also because of the frequency with which a
vehicle can become disabled or involved in an
accident on public highways, the extent of police-
citizen contact involving automobiles will be
substantially greater than police-citizen contact in a
home or office. Some such contacts will occur
because the officer may believe the operator has
violated a criminal statute, but many more will not be
of that nature. Local police officers, unlike federal
officers, frequently investigate vehicle accidents in
which there is no claim of criminal liability and
engage in what, for want of a better term, may be
described as community caretaking functions, totally
divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
criminal statute.
Id. at 441. As further described by our supreme court, the
community caretaking function “is ‘a catchall for the wide range
of responsibilities that police officers must discharge aside from
their criminal enforcement activities.’” Fair v. State, 627 N.E.2d
427, 431 (Ind. 1993) (quoting United States v. Rodriguez-Morales,
929 F.2d 780, 785 (1st Cir.1991), cert. denied, 502 U.S. 1030(1992)). Thus, “[t]he police are expected not only to enforce the
criminal laws but also to aid those in distress, abate hazards,
prevent potential hazards from materializing, and perform an
infinite variety of other tasks calculated to enhance and maintain
the safety of communities.” Id.The community caretaking function “is a narrow exception to
the privacy protections of the Fourth Amendment.” Killebrew[ v.
State], 976 N.E.2d [775,] 782 [(Ind. Ct. App. 2012), trans. denied].
In Indiana, it has been applied as an exception to the warrant
requirement only in cases where the police must conduct an
inventory search because they are impounding a vehicle. See,
e.g., Woodford[ v. State], 752 N.E.2d [1278,] 1281[ (Ind. 2001)];
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Jones v. State, 856 N.E.2d 758, 762-63 (Ind. Ct. App. 2006), trans.
denied. In those cases, the State is required to “demonstrate 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 . . . the decision to combat that
threat by impoundment was in keeping with established
departmental routine or regulation.’” Ratliff v. State, 770 N.E.2d
807, 809-10 (Ind. 2002) (ellipsis in original) (quoting Woodford,
752 N.E.2d at 1281) (internal quotation marks omitted).
[11] In Osborne, which, unlike prior Indiana decisions on this topic, did not involve
the impoundment of a vehicle, we adopted a three-pronged analysis for
evaluating claims of police community caretaker functions as set out by the
Wisconsin Supreme Court in State v. Kramer, 759 N.W.2d 598, 605 (Wis. 2009).
Under that analysis,
a court must determine “(1) that a seizure within the meaning of
the [F]ourth [A]mendment has occurred; (2) if so, whether the
police conduct was bona fide community caretaker activity; and
(3) if so, whether the public need and interest outweigh the
intrusion upon the privacy of the individual.” Id. (quoting State v.
Anderson, 417 N.W.2d 411, 414 (Wis. Ct. App. 1987)). During
the second step—i.e., whether the police conduct was bona fide
community caretaker activity—“a court considers whether police
conduct is ‘totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal
statute.’” Id. at 606 (quoting Cady, 413 U.S. at 441). This
determination is based on an examination of the totality of the
circumstances as they existed at the time of the police officer’s
conduct. Id. at 608. While a police officer’s subjective intent
may be a factor to consider in the totality of the circumstances,
when “an objectively reasonable basis for the community
caretaker function is shown, that determination is not negated by
the officer’s subjective law enforcement concerns.” Id. The third
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step—the balance of public needs against individual privacy
interests—assesses whether the officer’s exercise of his/her
community caretaker function was reasonable. Id. at 610. “The
stronger the public need and the more minimal the intrusion
upon an individual’s liberty, the more likely the police conduct
will be held to be reasonable.” Id. at 611. Wisconsin courts
consider the following factors in balancing these interests:
(1) the degree of the public interest and the exigency
of the situation; (2) the attendant circumstances
surrounding the seizure, including time, location, the
degree of overt authority and force displayed; (3)
whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Id.
Osborne, 2016 WL2756467 at *6-7. Applying this test, the Wisconsin Supreme
Court determined that an officer properly acted within his community caretaker
function when he stopped to offer assistance to a driver who was parked on the
side of the road with his hazard lights flashing. Kramer, 759 N.W.2d at 601,
612.
[12] Here, we disagree with the State’s initial contention that no search or seizure
within the meaning of the Fourth Amendment occurred. Cruz-Salazar, while
parked in a public place, had some expectation of privacy while sleeping in his
car. See Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (noting individual has
a reduced expectation of privacy in an automobile for Fourth Amendment
purposes). But we agree with the State that the community caretaking
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exception applies to Officer Ayler’s conduct in opening the door to Cruz-
Salazar’s truck and shaking him to wake him up. Only after that point did
Officer Ayler observe signs of intoxication. As we discuss below, Officer Ayler
was justified in then investigating Cruz-Salazar’s intoxication.
[13] Officer Ayler testified that he initially made contact with Cruz-Salazar out of
concern for Cruz-Salazar’s well-being. In particular, Officer Ayler testified as
follows: Cruz-Salazar “appeared to be either sleeping or passed out”; after
Cruz-Salazar did not respond to knocks on the window, Officer Ayler opened
the door “to check on his welfare”; and Officer Ayler “didn’t know why he was
asleep [or] if there was a medical problem.” Tr. at 8-9. In light of the totality of
the circumstances, Officer Ayler’s concern for Cruz-Salazar’s well-being and his
opening the door of the vehicle to check on Cruz-Salazar’s well-being were
reasonable, community caretaking activities. Indeed, in his reply brief, Cruz-
Salazar acknowledges that Officer Ayler’s conduct “was a ‘community
caretaker activity.’” Reply Br. at 7.
[14] However, Cruz-Salazar contends that, under the third prong of the Kramer test,
as adopted by this court in Osborne, the “public need and interest in discovering
why Cruz-Salazar slept in his car did not outweigh the intrusion into Cruz-
Salazar’s privacy.” Id. at 8. We cannot agree.
[15] Again, with respect to the third prong, the Kramer court set out four additional
factors in balancing the interests of the public and the police officer’s caretaking
duties: (1) the degree of the public interest and the exigency of the situation; (2)
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the attendant circumstances surrounding the seizure, including time, location,
the degree of overt authority and force displayed; (3) whether an automobile is
involved; and (4) the availability, feasibility and effectiveness of alternatives to
the type of intrusion actually accomplished. 759 N.W.2d at 611. Under the
facts of the instant case, the public interest in checking on the welfare of
someone who is not responsive to knocks on a window is high, as he could
have been ill and in need of medical assistance, or he could have been
intoxicated and about to drive off in the vehicle, which was running. Officer
Ayler did not use any force with Cruz-Salazar and, in fact, unsuccessfully
attempted to get him a ride home rather than arrest him. And Officer Ayler
had no other means of making contact with Cruz-Salazar to check his welfare,
as Cruz-Salazar was nonresponsive to his initial attempts at contact without
opening the truck door.
[16] We hold that Officer Ayler’s conduct did not violate Cruz-Salazar’s Fourth
Amendment right to be free from unreasonable search and seizure. See, e.g.,
Szabo v. State, 470 S.W.3d 696 (Ark. Ct. App. 2015) (holding officer’s conduct
appropriate under community caretaking function and no Fourth Amendment
violation where officer opened car door to wake defendant after observing him
either “unconscious or sound asleep” in driver’s seat of running vehicle and did
not respond to knocks on the window). For these same reasons, we hold that
Officer Ayler’s conduct was reasonable under Article 1, Section 11 of the
Indiana Constitution. See, e.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind.
2000).
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Probable Cause for Arrest
[17] Cruz-Salazar also contends that, aside from opening his car door, Officer Ayler
did not have probable cause to arrest him for public intoxication. Indiana Code
Section 7.1-5-1-3(a) provides in relevant part that it is a Class B misdemeanor
for a person to be in a public place in a state of intoxication caused by the
person’s use of alcohol if the person: (1) endangers the person’s life; (2)
endangers the life of another person; (3) breaches the peace or is in imminent
danger of breaching the peace; or (4) harasses, annoys, or alarms another
person. Cruz-Salazar maintains that there was no reason for Officer Ayler to
believe that Cruz-Salazar’s conduct fell within one of those categories. The
State, however, contends that the evidence shows that Officer Ayler “had
probable cause that [Cruz-Salazar] had committed both public intoxication and
operating a vehicle while intoxicated.” Appellee’s Br. at 19.
[18] Probable cause for an arrest exists when the facts and circumstances known to
the officer would warrant a reasonably prudent person to believe that the
arrestee has committed the criminal act in question. Jellison v. State, 656 N.E.2d
532, 534 (Ind. Ct. App. 1995). The level of proof necessary to establish
probable cause is less than that necessary to establish guilt beyond a reasonable
doubt. Id. Probable cause, in fact, requires only a fair probability of criminal
activity, not a prima facie showing. Id. Finally, probable cause may be
established by evidence that would not be admissible at trial. Id.[19] In Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014), our supreme court held
that the evidence was sufficient to prove public intoxication where
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the undisputed evidence established the sudden presence of the
defendant and his vehicle at a gas station, his intoxication, his
possession of the car keys, and the absence of any other person,
thus necessitating removal of the car by towing. From these
facts, it is a reasonable inference that the defendant had arrived at
the gas station by driving his automobile on the public streets
while intoxicated, thereby endangering his or another person’s
life.
[20] Here, again, the State only had to show that there was a “fair probability” that
Cruz-Salazar had operated his truck while intoxicated to establish probable
cause to arrest him for public intoxication. Jellison, 656 N.E.2d at 534(emphasis added). And we agree with the State that the evidence supports a
determination that there was a fair probability that Cruz-Salazar committed
public intoxication by having just driven while intoxicated. Id. Cruz-Salazar
concedes that he was in a public place in a state of intoxication. And the
evidence shows that he had been sitting in the driver’s seat of a truck with the
engine running for approximately thirty minutes before Officer Ayler arrived at
the scene. Cruz-Salazar stated that he could not remember how he had gotten
there, and his BAC was .184, more than twice the legal limit to operate a motor
vehicle. Officer Ayler’s arrest of Cruz-Salazar was supported by probable
cause, and the search of his person was a valid search incident to arrest. The
trial court did not abuse its discretion when it admitted into evidence the
cocaine Officer Ayler found in Cruz-Salazar’s pocket.
[21] Affirmed.
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Robb, J., and Crone, J., concur.
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