Richard Pinkham v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 29 2017, 6:30 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Recker Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Pinkham, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
53A05-1608-CR-1793
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Teresa D. Harper,
Appellee-Plaintiff. Judge
Trial Court Cause No.
53C09-1406-FC-611
Barnes, Judge.
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Case Summary
[1] Richard Pinkham appeals his conviction for Class C felony burglary and the
finding that he is an habitual offender. We affirm.
Issue
[2] The sole issue before us is whether Pinkham has standing to challenge the
constitutionality of a vehicle search that yielded incriminating evidence where
the vehicle owner was present and consented to the search.
Facts
[3] On the morning of October 7, 2013, Pinkham and Jennifer Proctor drove to a
Taco Bell restaurant in Bloomington. Pinkham got out of the car, and Proctor
drove to a nearby location from which she monitored police scanner activity.
Proctor and Pinkham communicated via two-way radios. Pinkham, carrying a
black bag, forced his way into the restaurant using a crowbar. He forcibly
opened the restaurant’s safe and cash register drawers and stole $1,382.
[4] The police obtained surveillance video footage that showed a figure in dark
clothes and gloves moving within the restaurant, as well as a small black vehicle
with a rear spoiler outside the restaurant around the time of the robbery.
Indiana State Police issued a bulletin regarding the burglary details.
[5] Seven months later, in the pre-dawn hours of May 24, 2014, a burglar alarm
was triggered at a Taco Bell location in Booneville. Detective Paul Kruse of the
Warrick County Sheriff’s Department responded to the scene and observed pry
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markings consistent with use of a crowbar on the restaurant door. Detective
Kruse saw a small black Mitsubishi Eclipse drive past the restaurant multiple
times. Given the unusually early hour and the fact that it was Memorial Day,
traffic should have been scarce. Detective Kruse became suspicious about the
vehicle and its proximity to the Taco Bell. He followed the vehicle, which
quickly pulled into a gas station. As Detective Kruse passed the vehicle, its
driver immediately drove away from the gas station. Detective Kruse
eventually resumed following the vehicle. The driver, Pinkham, committed a
traffic infraction, disregarding signage instructing drivers to keep right except to
pass, and Detective Kruse pulled over the vehicle. Proctor was seated in the
passenger seat.
[6] Detective Kruse observed that Pinkham was visibly nervous and breathing
heavily. On request, Pinkham handed over his license, proof of insurance, and
a vehicle registration in Proctor’s name. From his squad car, Detective Kruse
checked Pinkham’s driving history, as well as for outstanding warrants and
criminal history. Detective Kruse then returned to the vehicle and asked
Pinkham to exit. He asked Pinkham if he was armed, and Pinkham advised
that he had a knife. Detective Kruse instructed Pinkham to place his hands on
the trunk of the vehicle and patted Pinkham down, removing the knife.
[7] Detective Kruse asked why Pinkham was in Booneville. Pinkham responded
that he had just arrived in town. Detective Kruse issued a citation, told
Pinkham that he was free to go, and placed the citation and Pinkham and
Proctor’s records on the rear of the vehicle.
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[8] Detective Kruse later testified that “[a]fter I told him that he was free to go, and
it was clear he was making a move to do that, I asked him if it would be okay
with him if I searched the car[.]” Tr. p. 47. Pinkham responded that he had no
problem with the search but that Detective Kruse should ask the vehicle’s
owner, Proctor. Kruse approached Proctor and asked her reasons for being in
Booneville. Her account differed from Pinkham’s. Proctor, too, consented to
the vehicle search.
[9] Detective Kruse’s preliminary search yielded a crowbar and two-way radios.
He decided to impound the vehicle and seek a search warrant. After obtaining
the warrant, the police recovered from the vehicle a reciprocating saw, a small
sledgehammer, another crowbar, black gloves, a black hat, a black ski mask, a
camouflage-print sweatshirt, and a black bag containing pliers and extra blades
for the saw.
[10] The State charged Pinkham with two counts of class C felony burglary. The
State also filed a notice of intent to seek an habitual offender enhancement. On
September 8, 2015, Pinkham filed a motion to suppress, which the trial court
denied. The trial court ordered the burglary counts severed for trial, and on
May 31-June 2, 2016, Pinkham was tried by jury regarding the Bloomington
burglary.1
1
The severed burglary count originating in Warrick County was later dismissed.
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[11] Detective Kruse testified that the presence of an out-of-town vehicle, in the
immediate vicinity of a Taco Bell burglary, that matched the description of the
suspect vehicle involved in an unsolved, morning robbery of another Taco Bell
location had made him suspicious. He testified further that his suspicions were
further raised by the early hour and the furtive and evasive actions taken by
Pinkham before the traffic stop.
[12] Proctor confessed and served as a primary State’s witness, testifying in detail
regarding Pinkham’s planning and execution of the crimes. She testified further
that before trial, Pinkham begged her to withdraw her confession, to refuse to
testify, and to tamper with a witness.2
[13] Pinkham was found guilty as charged and was found to be an habitual
offender. The trial court sentenced him accordingly, and he now appeals.
Analysis
[14] Pinkham argues on appeal that the trial court should have granted his motion to
suppress the evidence obtained from the vehicle.3 The State counters that
2
The record includes letters and jailhouse recordings in which Pinkham begs Proctor to
dissuade her daughter, Jordan Nikki Hodges, from testifying against him. Hodges, however,
testified that when she was employed at a Taco Bell location, Pinkham asked about the “safe
numbers” and security system. Tr. p. 95. Hodges also testified that she saw Pinkham and
Proctor with a large sum of money, which Pinkham admitted “he got … from Taco Bell.” Id.
Pinkham confessed to Hodges, admitting that he wore black clothing during the burglary and
that he “cut through the safe.” Id. at 96.
3
Because Pinkham appeals following the conclusion of his trial, his appeal is, in fact, a request
to review the trial court’s decision to admit the evidence recovered from the vehicle at trial,
which is governed by an “abuse of discretion” standard of review. Carpenter v. State, 18
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Pinkham lacks standing to challenge the constitutionality of the vehicle search.
We agree with the State.
[15] Although Pinkham contends that the State violated his rights under Article 1,
Section 11 of the Indiana Constitution, he has failed to develop a cogent
argument on this issue or to provide adequate citation to authority cite to legal
authority in support of his state constitutional claims. To this extent, his claims
regarding state constitutional violations are waived. See Shane v. State, 716
N.E.2d 391, 398 n.3 (Ind. 1999) (defendant waived argument on appeal by
failing to develop a cogent argument). We will only address Pinkham’s Fourth
Amendment claims.
[16] To challenge the validity of a search under the Fourth Amendment, the United
States Supreme Court has held that the test is whether the defendant can
demonstrate a legitimate expectation of privacy in the area subject to the
governmental intrusion. Whitley v. State, 47 N.E.3d 640, 644 (Ind. Ct. App.
2015) (citing Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469 (1998)).
Indeed, “a defendant aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by the search of a third person’s
N.E.3d 998, 1001 (Ind. 2014) (citing Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014)). Because
we find the issue of standing to be dispositive, we will not address the merits of his claim.
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premises has not had any of his Fourth Amendment rights infringed.” Sisk v.
State, 785 N.E.2d 271, 274 (Ind. Ct. App. 2003).
[17] A driver who is not the owner of the vehicle at issue in a vehicle search by
police lacks standing if the owner is also in the vehicle. Campos v. State, 885
N.E.2d 590, 598-99 (Ind. 2008); see also United States v. Jefferson, 925 F. 2d 1242,
1249 (10th Cir. 1991); United States v. Lochan, 674 F. 2d 960, 965 (1st Cir. 1982)
(although driver had been on a long trip and had vehicle registration, driver
lacked standing because vehicle owner was also present).
[18] Here, Proctor was in the car when Detective Kruse initiated the traffic stop; she
freely and voluntarily consented to the vehicle search; and she served as a
primary State’s witness at trial. Under the circumstances, Pinkham’s
constitutional challenges to the vehicle search must fail for a lack of standing.
Conclusion
[19] We conclude that Pinkham’s claims fail for lack of standing. We affirm his
conviction and habitual offender finding.
[20] Affirmed.
Baker, J., and Crone, J., concur.
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