Roger Oswaldo Mendez-Vasquez v. State of Indiana ( 2023 )

FILED
Aug 23 2023, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher J. Evans Theodore E. Rokita
Dyllan M. Kemp Attorney General of Indiana
Dollard Evans Whalin LLP Evan Matthew Comer
Noblesville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger Mendez-Vasquez, August 23, 2023
Appellant-Defendant, Court of Appeals Case No.
23A-CR-226
v.
Appeal from the Hamilton
Superior Court
State of Indiana,
The Honorable Darren Murphy,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D07-2202-F6-1187
Opinion by Judge Bradford
Judge Riley concurs.
Judge Weissmann dissents with separate opinion.
Bradford, Judge.
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Case Summary
[1] In February of 2022, Fishers Police Officer Jospeh Ryder stopped a truck driven
by Roger Mendez-Vasquez after witnessing a traffic infraction and determining
that the truck’s registration had expired. Officer Ryder discovered that
Mendez-Vasquez had never had a valid driver’s license in Indiana, arrested
him, decided to impound his truck, and performed an inventory search. During
the search, Officer Ryder discovered items that led to a charge of and
conviction for Level 6 felony methamphetamine possession. Mendez-Vasquez
contends that Officer Ryder’s inventory search of his truck was unconstitutional
and that the trial court therefore abused its discretion in admitting the evidence
recovered during it. Because we disagree, we affirm.
Facts and Procedural History
[2] On February 24, 2022, Officer Ryder was following a black truck driven by
Mendez-Vasquez westbound on 96th Street in Hamilton County when he saw
him activate his turn signal less than 200 feet away from the intersection with
Wading Crane Avenue and make an “unexpected” right turn. Tr. Vol. II p. 8.
Officer Ryder determined that Mendez-Vasquez’s license plate had expired the
month before and suspected that he had turned suddenly in an attempt to avoid
him, so he pulled his police car onto nearby Springstone Road and waited to
see if Mendez-Vasquez would return to the area. Shortly thereafter, Officer
Ryder again spotted Mendez-Vasquez’s truck westbound on 96th Street. Officer
Ryder initiated a traffic stop and observed that Mendez-Vasquez was the
vehicle’s driver and sole occupant. Mendez-Vasquez produced some
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identification but not a valid driver’s license, and Officer Ryder learned that a
person with Mendez-Vasquez’s name had an active warrant for his arrest from
Marion County for operating a vehicle without ever having received a license.
Once Officer Ryder confirmed Mendez-Vasquez’s identity, he arrested him.
[3] After Mendez-Vasquez was taken into custody, Officer Ryder decided to have
the truck impounded. At the time, the Fishers Police Department had a policy
regarding inventory searches of impounded vehicles, pursuant to which officers
are required to “log the property of value that is located within the vehicle and
put it into the inventory log sheet.” Tr. Vol. II p. 13. Before beginning his
search, Officer Ryder asked Mendez-Vasquez to identify items of value that he
wanted in the inventory, and Mendez-Vasquez replied that he had “a lot of
tools[.]” Tr. Vol. II p. 13.
[4] During his inventory search, Officer Ryder found a purse in the passenger
compartment, which was the same purse from which Mendez-Vasquez had
retrieved his identification after he was stopped. When Officer Ryder opened
the purse, he observed a glass smoking pipe with a substance inside that
appeared to be a pipe used for smoking methamphetamine. Inside the
compartment in the truck’s armrest, Officer Ryder located a small, partially
transparent plastic container, which contained a light-colored, crystal-like
substance, which was later determined to be methamphetamine.
[5] On February 25, 2022, the State charged Mendez-Vasquez with Level 6 felony
possession of methamphetamine and Class C misdemeanor unlawful possession
of paraphernalia. Mendez-Vasquez’s bench trial began on January 17, 2023.
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Mendez-Vasquez did not object to the impoundment of his truck on Fourth
Amendment grounds. Mendez-Vasquez, however, did object to the inventory
search of the vehicle, claiming that the search of the purse in which the
contraband was discovered was outside the scope of a permissible inventory
search because Mendez-Vasquez had not identified the purse as an object of
value prior to the initiation of the search. The trial court overruled Mendez-
Vasquez’s objection and permitted Officer Ryder to testify about the items he
had located inside the purse and truck. The trial court ultimately found
Mendez-Vasquez guilty of Level 6 felony possession of methamphetamine and
not guilty Class C misdemeanor unlawful possession of paraphernalia. The
trial court sentenced Mendez-Vasquez to 654 days of incarceration.
Discussion and Decision
[6] A constitutional challenge to the admission of the fruits of a warrantless search
at a criminal trial implicates the Fourth Amendment’s and Article 1, section
11’s, exclusionary rules, which means that the issue is properly left to the trial
court’s discretion over the admission of evidence. Wilson v. State, 765 N.E.2d
1265, 1272 (Ind. 2002). We review such decisions for abuse of that discretion.
Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Although the ultimate question
of a search’s constitutionality is a matter of law that courts review de novo,
Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014), Fourth Amendment claims are,
by their nature, fact-sensitive inquiries, and a trial court’s determination of the
facts is entitled to deference. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).
Reversal of a conviction is appropriate only if a defendant can show that the
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admission of evidence was contrary to the logic and effect of the facts and
circumstances presented by his case or based on a misinterpretation of the law.
Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
I. Article 1, section 11
Mendez-Vasquez contends for the first time on appeal that the impoundment
and inventory search of his truck violated his rights against unreasonable search
and seizure pursuant to Article 1, section 11, of the Indiana Constitution. It is,
however, well-settled that an issue must first be raised in the trial court by
raising a timely objection, and the failure to do so results in waiver of the claim
on appeal. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). When Mendez-
Vasquez objected to the admission of the purse’s contents at trial, Mendez-
Vasquez claimed that they were “fruit of the poisonous tree” under the Fourth
and Fourteenth Amendments to the United States Constitution but made no
mention of Article 1, section 11, of the Indiana Constitution. Consequently, he
has waived his Indiana constitutional claims for appellate review. See Durden,
99 N.E.3d at 652.
II. Fourth Amendment
[7] As for Mendez-Vasquez’s federal claims, the Fourth Amendment generally
requires that police obtain a warrant to conduct a search of a defendant’s
person, house, papers, or effects unless one of the Amendment’s “well-
delineated” exceptions applies. Katz v. U.S., 389 U.S. 347, 357 (1967). As
courts have long recognized, one of these exceptions occurs when police
officers conduct an inventory search following the impoundment of a vehicle.
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Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). The purpose behind the
inventory-search exception is to “protect an owner’s property while it is in the
custody of the police, to insure against claims of lost, stolen, or vandalized
property, and to guard the police from danger.” Colorado v. Bertine, 479 U.S.
367, 372 (1987). An inventory search’s validity is determined based on a two-
part test: first, because the need for an inventory arises from an impound, the
State must establish that the impoundment is valid under either statute or as a
matter of community caretaking; and second, courts must consider whether the
scope of the inventory search was reasonable. Fair v. State, 627 N.E.2d 427, 431
(Ind. 1993).
[8] Mendez-Vasquez claims for the first time on appeal that Officer Ryder’s
impoundment of his truck was unconstitutional; consequently, this claim is
waived for appellate review. See Durden, 99 N.E.3d at 652. This leaves us only
with Mendez-Vasquez’s contention that the scope of the inventory search of his
truck was unconstitutionally broad. Even when a vehicle is validly impounded,
the inventory search itself “must be conducted pursuant to standard police
procedures.” Fair, 627 N.E.2d at 435. The purpose of this requirement is to
make sure that the search is carried out in a manner that serves the objectives
justifying inventory searches and that sufficiently limits the discretion of the
officer so that the search cannot become a pretext for a general rummaging for
incriminating evidence. Combs v. State, 168 N.E.3d 985, 995 (Ind. 2021). That
said, even when an inventory search is conducted according to a policy, it is
possible for the policy, as established by the record, to be so broad as to be the
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equivalent of having no policy at all. See, e.g., Fair, 627 N.E.2d at 436. This is
what Mendez-Vasquez argues.
[9] For its part, the State argues that Officer Ryder’s testimony provided sufficient
detail regarding his department’s policy to conclude that it sufficiently regulated
officer discretion. Specifically, the State points to Officer Ryder’s testimony
that he was required to log items “of value,” required to note whether the items
were taken to a locker or left in the vehicle, and permitted to only search
containers that might contain valuables. The only real point of contention is
whether an inventory-search policy that requires officers to inventory items that
are “of value” is sufficiently restrictive of officer discretion to pass constitutional
muster. We conclude that it is.
[10] We agree with the State that limiting the inventory search to items “of value,”
i.e., items that the police could reasonably expect to be the subject of complaint
were they to disappear or be damaged while in police custody, serves the
purposes of the inventory-search exception while disallowing a general
rummaging for incriminating evidence. For example, a purse and its contents
can be inventoried because they are likely to be of value to the owner while,
without more, items such as discarded paper bags cannot be searched because
they are not likely to be of value. While it may be tempting to imagine a policy
with additional guidance for determining value such that officer discretion is
further limited, we are somewhat at a loss to understand how such a policy
could be workable in practice. Attempting to craft an inventory-search policy
based on apparent monetary value (perhaps the only more-or-less objective
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criterion that could realistically be added to such a policy) strikes us as an
exercise in futility, because an item of no apparent monetary value may
nonetheless have great practical or sentimental value to its owner.
[11] Another possibility would be to require the officer to rely on the vehicle
occupant’s identification of items of value. This, however, is also inadequate,
because the occupant would then be able to defeat any inventory search at all
by denying that there was anything of value in the vehicle, which would
completely thwart the purposes of inventory-search procedures, which are to
“protect an owner’s property while it is in the custody of the police, to insure
against claims of lost, stolen, or vandalized property, and to guard the police
from danger.” Bertine, 479 U.S. at 372. Perhaps the best practice when
identifying items of value for purposes of an inventory search is to combine the
exercise of officer judgment with the identification of specific items of value by
the vehicle’s occupant, as Officer Ryder did here. In any event, we conclude
that the inventory-search policy here, which required that items of value be
inventoried and was followed by Officer Ryder, sufficiently constrains the
exercise of officer discretion and is therefore constitutional. See Peete v. State,
678 N.E.2d 415, 420 (Ind. Ct. App. 1997) (concluding that trial counsel was not
ineffective for failing to challenge an inventory search where the search policy
at issue provided that “‘the officer is required to go through the vehicle, the
interior of the vehicle and the trunk of the vehicle to ascertain if there is any
valuable property or contraband or basically it is designed to protect the private
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party from loss [of] the property and the wrecker lots and the police department,
for liability’”) (record citation omitted and brackets in Peete), trans. denied.
[12] While we acknowledge the similarity between the policy at issue in this case
and the policies found to be unconstitutionally vague in Fair and Sams v. State,
71 N.E.3d 372 (Ind. Ct. App. 2017), we nonetheless conclude that those cases
are distinguishable on the facts. In Fair, the police officer testified as follows
regarding his police department’s inventory-search policy: “Officer Wager
testified only that ‘we conduct an inventory search of the car to see what kind of
items are in it. If there’s anything valuable that might need to be placed in the
property room or otherwise noted as being in the car.’” Fair, 627 N.E.2d at 436
(emphasis in original). In contrast to this case, however, the Court noted
several indicia of pretext harmful to the State’s position, including that the
vehicle was searched at the scene by an officer responsible for criminal
investigations; the officer made no note of Fair’s personal effects, focusing
instead on the contraband; there was no indication that inventory sheets were
ever completed; and it was unclear that the vehicle was ever actually
impounded. The Fair Court concluded that the search at issue was
unreasonable because “[t]here was no testimony whatsoever that provided the
particulars of the policy and, therefore, it is not possible for this Court to
determine whether the seemingly suspicious circumstances which attended the search
were in fact irregular.” Id. (emphasis added).
[13] Here, however, the record contains few of the “seemingly suspicious
circumstances” that were so suggestive of pretext in Fair. Id. Officer Ryder
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testified that the Fishers Police Department’s inventory policy was to inventory
items of value and note them on an inventory log sheet, and even Mendez-
Vasquez does not dispute that his purse was an item of value that contained
items of value. Officer Ryder testified that the items in the vehicle were entered
on an inventory sheet by another officer. Officer Ryder testified in greater
detail regarding the Fishers Police policy than did the officer regarding the
policy in Fair, including that it specifically allowed closed containers to be
opened so long as they could contain items of value. Finally, there is no
indication that anything was searched and inventoried that was not of value,
which would indicate pretext. Because the Fair Court was evaluating the search
policy against a backdrop of strong indicia of pretext that are not present in this
case, we conclude that Fair does not require reversal.
[14] Mendez-Vasquez also relies on our decision in Sams, in which the testimony
regarding the inventory policy was “[w]e look at the vehicle and make sure
anything that would be valuable [is inventoried], if you look at [it and
determine] that’s valuable[.]” 71 N.E.3d at 379 (first three sets of brackets in
Sams). In reversing the trial court’s decision to admit evidence found in the
inventory search, we observed that the above policy was
indistinguishable from what Fair held to be no policy at all:
“[W]e conduct an inventory search of the car [to see if] there’s
anything valuable that might need to be ... noted as being in the
car....” Fair, 627 N.E.2d at 436; see also Rhodes v. State, 50 N.E.3d
378, 382 (Ind. Ct. App. 2016) (invalidating inventory search)
(inventory “to make sure no valuables are left inside the vehicle
before it’s towed”), trans. denied. In part, this is because
inventory searches are definitionally searches for valuables (and,
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to some degree, dangers). See [South Dakota v. Opperman, 428
U.S. 364, 369–70 (1976)]. Without further definition by
standardized criteria, a policy “to inventory for valuables” gives
officers unconstitutionally broad discretion. There is nothing in
the record of what standardized criteria GPD officers use to
decide what is “valuable” under the policy.
Sams, 71 N.E.3d at 380.
[15] In Sams, however, it was not necessary to reach the question of the policy’s
unconstitutionality because the officers did not follow the policy, searching a
discarded fast-food paper bag that they did not even bother to claim was
valuable. Id. at 375. The search of the fast-food bag therefore failed to fulfill
any valid administrative purpose of an inventory search, creating an inference
of pretext that the State could not counter. Because it was not necessary to
reach the question of whether the policy itself was invalid in Sams, any
declaration on the subject was rendered obiter dictum. In summary, because we
conclude that Fair and Sams are distinguishable on the facts, they do not require
reversal in this case.
We affirm the judgment of the trial court.
Riley, J., concurs.
Weissmann, J., dissents with separate opinion.
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Weissmann, Judge, dissenting.
I respectfully dissent.
[16] The State bears the burden to prove that an inventory search was conducted in
good faith under standardized inventory procedures that sufficiently curtail the
discretion of the searching officer. Combs v. State, 168 N.E.3d 985, 995 (Ind.
2021) (citing Florida v. Wells, 495 U.S. 1, 4 (1990)), cert. denied, 142 S. Ct. 1125
(2022). Based on this scant record, I cannot conclude that this search passes
constitutional muster.
[17] The State’s evidence of a proper inventory search amounts largely to the
following testimony from the arresting officer:
Q: And does Fishers have a procedure on how to conduct an
inventory of a vehicle?
A: Yes, we are to log the property of value that is located within
the vehicle and put it into the inventory log sheet. I had another
officer come and assist me and when he responded he stated that
he would do the paperwork for the logging of the vehicle.
Q: Did you follow this procedure when inventorying the
defendant's vehicle?
A: I did.
Tr. Vol. II p.13. But since the arresting officer passed off the “paperwork” of
the search to a different officer, his testimony can only go so far towards
ensuring the proper procedures were followed. Id. To that end, the State failed
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to elicit testimony from the officer responsible for the administrative work and
neglected to admit into evidence the inventory sheets themselves, proof of
impoundment, or the written text of Fishers’ inventory search policy. Thus,
despite the majority’s claim to the contrary, this case shares almost all the
pretextual concerns that led to suppression in Fair v. State, 627 N.E.2d 427, 436
(Ind. 1993).
[18] As in Fair, Mendez-Vasquez’s truck was (1) searched at the crime scene by (2)
an officer responsible for, and with extensive experience in, criminal drug
enforcement. As in Fair, (3) the record contains only the searching officer’s
testimony—not the officer who filled out the paperwork. And as in Fair, there
is no evidence of (4) completed inventory sheets, or (5) actual impoundment of
the truck.1 The only indicator of a pretextual search not present here is that
Officer Ryder asked about, and appears to have kept track of, Mendez-
Vasquez’s personal items. Yet, based on the State’s failure to enter the
inventory log sheets into evidence—or elicit testimony from the officer who
filled out the sheets—Officer Ryder’s brief testimony that “[he] did” follow the
proper procedures of an inventory search falls short of the State’s burden. Tr.
Vol. II p. 13.
[19] While the majority makes much of Officer Ryder’s clarification that Fishers’
policy allowed him to open closed containers so long as they might contain
1
I don’t doubt that the truck was impounded based on Mr. Mendez-Vasquez’s appellate arguments. But this
concession on appeal does not relieve the State of its burden of showing a constitutionally permissible
inventory search.
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valuables, this fails to calm my fear of pretext, as it does little to establish the
existence of the necessary procedural safeguards. This is the critical inquiry
courts must undergo in determining the constitutionality of inventory searches.
For instance, Indiana has consistently required the State to explain not just what
the inventory search policy is, but how the officer’s actions matched those
procedures in practice. See, e.g., Wilford v. State, 50 N.E.3d 371, 377–78 (Ind.
2016); Sams v. State, 71 N.E.3d 372, 383 (Ind. Ct. App. 2017);2 Rhodes v. State,
50 N.E.3d 378, 382–83 (Ind. Ct. App. 2016); Whitley v. State, 47 N.E.3d 640,
647–48 (Ind. Ct. App. 2015). Indeed, our Supreme Court has explicitly stated:
Simply put, [a] passing reference to “our procedures in that
situation” fails to “provide the particulars of the policy” as Fair
requires. On this record, we know literally nothing about the
substance of the “procedures” the officer referenced, let alone
how his actions adhered to those procedures. Without these
“particulars,” then, we cannot evaluate whether this
impoundment was a reasonable exercise of the community-
caretaking function and not merely pretext for an inventory
search.
Wilford, 50 N.E.3d at 377–78 (internal citation omitted).
[20] Here, all we know is that officers look for valuables. But how does an officer
gauge value? How does an officer determine which containers may be opened
2
In Sams, our court made two things clear: (1) a policy consisting only of searching for “anything valuable”
was unconstitutional; and (2) the officer’s repeated deviations from that policy required reversal. The
majority incorrectly relegates the first premise to irrelevant dicta. If anything, this has the dicta analysis
backwards. Sams, 71 N.E.3d at 383 (holding “even if” the inventory search policy was constitutional, “the
officers’ major deviation from that regime” also required reversal).
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to log items of value? Requiring an answer to such basic questions is not too
much to ask where the State is attempting to justify a warrantless search. See,
e.g., Sams, 71 N.E.3d at 379–80; People v. Mortel, 197 A.D.3d 196, 233 (N.Y.
2021) (Chambers, J., concurring in part) (“Surely, if the standardized procedure
in this case were limited to what [the officer] actually described, namely a
generalized instruction to ‘go through the vehicle’ and ‘note all the valuables,’ it
would be difficult, if not impossible, to conclude that such a procedure is
designed to meet the legitimate objective of the search while limiting the
discretion of the officer in the field.”); U.S. v. Mundy, 621 F.3d 283, 290–91 (3rd
Cir. 2010) (holding constitutional inventory search policy “for valuable items”
that sufficiently explained procedural safeguards); U.S. v. Battle, 370 Fed. Appx.
426, 429 (4th Cir. 2010) (same); U.S. v. Kimes, 246 F.3d 800 (6th Cir. 2001)
(same). In short, exactly like in Wilford, we know nothing about the substance
of the procedures used here, let alone whether Officer Ryder’s actions adhered
to that policy.3
[21] Though the State relied on the inventory exception to justify the search of the
purse, it failed to establish the necessary showing to ensure the search passed
3
This is not to say that I disagree with the majority’s view that usefulness or practicality may be a
component of a lawful inventory search policy. Slip Op. ¶¶ 10-12. But the majority’s discussion on this point
is just conjecture because the State failed to provide the evidence necessary to properly review Fishers’
inventory search procedures. The only case the majority opinion affirmatively cites for its position—without
having to explain away the opposite result—possessed the evidence necessary to review the substance of the
procedures lacking here. Id. ¶ 11 (citing Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997) (holding
inventory search constitutional where the officer “testified articulately” about his actions in conducting the
search, explained how the general procedures of an inventory search matched his actions, and the written
policy was entered into evidence)).
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constitutional muster. Based on this failure in the State’s burden of proof, I
would grant Mr. Mendez-Vasquez’s motion to suppress.
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