Jamie Cole v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Oct 24 2017, 8:50 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey A. Baldwin Curtis T. Hill, Jr.
Tyler D. Helmond Attorney General of Indiana
Voyles Zahn & Paul
James B. Martin
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamie Cole, October 24, 2017
Appellant-Petitioner, Court of Appeals Case No.
58A01-1612-PC-2797
v. Appeal from the Ohio Circuit Court.
The Honorable James D.
Humphrey, Judge.
State of Indiana, Trial Court Cause No.
Appellee-Respondent. 58C01-1410-PC-2
Barteau, Senior Judge
Statement of the Case
[1] Jamie Cole appeals the denial of his petition for post-conviction relief. We
affirm.
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Issue
[2] Cole raises one issue, which we restate as: whether the post-conviction court
erred in denying his claim of ineffective assistance of counsel.
Facts and Procedural History
[3] On May 23, 2012, an officer employed by the Rising Sun Police Department
(RSPD) stopped a Jeep in Ohio County. Katherine Cole (Katherine) was
driving. Her husband, Jamie Cole, and their infant child were in the vehicle.
[4] Other officers arrived at the scene to assist. They arrested Katherine for driving
with a suspended license, driving with an expired license plate, and operating a
vehicle without proof of financial responsibility. Cole also lacked a valid
driver’s license. The officers impounded the Jeep, and an officer conducted an
inventory search of its contents, including Katherine’s purse. The purse
contained fifty (50) grams of marijuana, thirty-three (33) pills that were later
identified as various controlled substances (all opioid painkillers), a pill grinder,
a plastic straw, and a set of digital scales.
[5] The police took Cole into custody after finding the contraband. Detective
Norman Rimstidt of the RSPD questioned Cole and Katherine separately.
Katherine claimed the marijuana and pills belonged to her and that “Jamie had
nothing to do” with those items. Tr. Ex. Vol., Petitioner’s Ex. 1. Similarly,
Cole denied any involvement with the marijuana and controlled substances,
claiming Katherine “had a pill problem” and had “snorted pills and smoked
marijuana in the past.” Id. After questioning Cole and Katherine, the police
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obtained search warrants for an apartment and a unit at a storage facility, as
well as for Katherine’s phone.
[6] On May 25, 2012, the State charged Cole with dealing in cocaine or a narcotic
drug, a Class B felony; dealing in a schedule I, II, or III controlled substance, a
Class B felony; dealing in a schedule IV controlled substance, a Class C felony;
dealing in marijuana, a Class D felony; possession of cocaine or a narcotic
drug, a Class D felony; possession of a controlled substance, a Class D felony;
possession of marijuana, a Class D felony; possession or use of a legend drug or
precursor, a Class D felony; possession of paraphernalia, a Class A
misdemeanor; maintaining a common nuisance, a Class D felony; and neglect
of a dependent, a Class D felony. The State also filed an habitual offender
sentencing enhancement.
[7] Cole and the State negotiated a plea agreement. Pursuant to the agreement,
Cole pleaded guilty to dealing in a narcotic drug, a Class B felony. Sentencing
would be left to the discretion of the trial court, and the State promised not to
recommend a specific sentence. In turn, Cole agreed to waive his right to
appeal the sentence imposed by the trial court. Finally, the State agreed to
dismiss all other charges and the habitual offender sentencing enhancement.
[8] On April 26, 2013, the court sentenced Cole to twenty (20) years. Per the terms
of his plea agreement, Cole did not appeal his sentence.
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[9] On October 20, 2014, Cole filed a pro se petition for post-conviction relief. He
later obtained counsel, who amended the petition for post-conviction relief to
raise a claim of ineffective assistance of counsel. The post-conviction court held
an evidentiary hearing on October 7, 2016. Cole’s trial counsel did not testify at
the hearing.
[10] After the hearing, the post-conviction court denied Cole’s petition, concluding,
“Petitioner has failed to show that his trial attorney’s performance fell below an
objective standard of reasonableness, and that this deficient performance
prejudiced him.” Appellant’s App. Vol. II, p. 126. This appeal followed.
Discussion and Decision
[11] In post-conviction proceedings, the petitioner bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Helton v. State, 907
N.E.2d 1020, 1023 (Ind. 2009). To prevail on appeal from the denial of post-
conviction relief, the petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the trial
court. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). We will not reweigh
the evidence or judge the credibility of witnesses. Wine v. State, 637 N.E.2d
1369, 1373 (Ind. Ct. App. 1994), trans. denied. We review the trial court’s
findings for clear error but do not defer to its conclusions of law. Talley v. State,
51 N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied.
[12] Cole argues his trial counsel rendered ineffective assistance by failing to file a
motion to suppress all evidence discovered through the seizure of the Jeep and
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the inventory search, which led to the discovery of contraband in Katherine’s
purse. He claims that the officers acted unconstitutionally in impounding the
Jeep and in conducting the search. Cole further claims that if his counsel had
filed a motion to suppress, it would have been successful, and he would not
have needed to plead guilty. The State responds that Cole had no grounds to
object to the inventory search, and in any event the impoundment of the Jeep
and the inventory search did not infringe upon his rights.
[13] To establish a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel performed deficiently and the deficiency resulted in
prejudice. Helton, 907 N.E.2d at 1023. Counsel performs deficiently when his
or her work falls below an objective standard of reasonableness based on
prevailing professional norms. Polk v. State, 822 N.E.2d 239, 245 (Ind. Ct. App.
2005), trans. denied. Counsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this
presumption. Talley, 51 N.E.3d at 303. As for the test for prejudice, the
petitioner must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Polk, 822 N.E.2d at 245.
[14] To prevail on an ineffective assistance of counsel claim based upon counsel’s
failure to file a motion, such as a motion to suppress, the petitioner must
demonstrate that the motion, if filed, would have been successful. Talley, 51
N.E.3d at 303. We must consider whether the seizure of the vehicle and the
search of Katherine’s purse was unconstitutional as to Cole.
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[15] The Fourth Amendment provides in relevant part, “the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” Similarly, article I, section 11 of
the Indiana Constitution provides, in relevant part: “the right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
search or seizure, shall not be violated.”
[16] A key question is whether Cole could have raised a valid objection to the
admission of evidence obtained from the search of Katherine’s purse. For
purposes of the Fourth Amendment, a defendant may not challenge the
constitutionality of a search unless he or she can demonstrate that he or she had
a reasonable expectation of privacy in the place to be searched. Sidener v. State,
55 N.E.3d 380, 384 (Ind. Ct. App. 2016). A defendant aggrieved by an illegal
search and seizure only through the introduction of prejudicial evidence secured
by the search of a third person’s premises has not suffered infringement upon
his or her Fourth Amendment rights. Bradley v. State, 4 N.E.3d 831, 839 (Ind.
Ct. App. 2014), trans. denied.
[17] In this case, when Detective Rimstidt questioned Cole, he “denied any
involvement with the drugs.” Tr. Ex. Vol., Petitioner’s Ex. 1, p. Instead, he
stated “Katherine had a pill problem and that she had snorted pills and smoked
marijuana in the past.” Id. Katherine told Detective Rimstidt that Cole had
nothing to do with the contraband. Detective Rimstidt further testified that he
had asked Cole if anything in the purse belonged to him, and Cole said no. In
addition, the officer stated that aside from a prescription medicine bottle
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bearing Cole’s name, he did not see anything in the purse that appeared to
belong to Cole.
[18] Cole testified during the post-conviction hearing that he lied when he originally
told the detective that he had no interest in the purse. Cole further testified that
he regularly stored personal items in Katherine’s purse and sometimes carried it
with him when Katherine was not around. The post-conviction court found
Cole’s testimony on this issue to be “unpersuasive.” Appellant’s App. Vol. II,
p. 126. We may not second-guess the court’s credibility determinations. We
conclude that Cole has failed to demonstrate that he had a reasonable
expectation of privacy in Katherine’s purse. See Rawlings v. Kentucky, 448 U.S.
98, 105, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980) (defendant failed to
prove he had expectation of privacy in acquaintance’s purse, in which he had
hidden controlled substances).
[19] Turning to the Indiana Constitution, as a general rule a challenge to a search
under article I, section 11 “differs in some respects from standing to assert a
Fourth Amendment claim.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008).
The Indiana Constitution provides protections for claimed possessions
regardless of the defendant’s interest in the place where the possession was
found. Id. Nevertheless, it remains true that “if the facts fail to establish that
the alleged illegal search and seizure actually concerned the person, house,
papers or effects of the defendant,” he or she will not have standing to challenge
the alleged illegality. Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996).
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[20] In this case, viewing the facts in the light most favorable to the judgment, at the
time of the police investigation Cole disclaimed any interest in the purse or its
contents. Later, during the post-conviction hearing he claimed an interest in
the purse and in a prescription bottle bearing his name that was found in the
purse, but the post-conviction court did not find Cole’s testimony to be credible.
We cannot conclude that Cole demonstrated an ownership interest in the purse
for purposes of article I, section 11, and he thus lacked standing to challenge a
search of the purse.
[21] Even if Cole had grounds to raise constitutional challenges to the search and
seizure of the Jeep and its contents, Cole would have had to demonstrate that
the impoundment and the subsequent inventory search was inappropriate. The
Fourth Amendment, as applied to the states through the Fourteenth
Amendment, generally requires a warrant for a search to be considered
reasonable. Jackson v. State, 890 N.E.2d 11, 17 (Ind. Ct. App. 2008). One well-
recognized exception to the warrant requirement is a valid inventory search of a
vehicle following a valid impoundment. Id. Impoundment is proper when it is
part of the routine administrative caretaking function of the police or is
otherwise authorized by statute. Id.[22] Indiana Code section 9-18-2-43 (2005) provides, in relevant part:
a law enforcement officer authorized to enforce motor vehicle
laws who discovers a vehicle required to be registered under this
article that does not have the proper certificate of registration or
license plate:
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(1) shall take the vehicle into the officer’s custody; and
(2) may cause the vehicle to be taken to and stored in a suitable
place until:
(A) the legal owner of the vehicle can be found; or
(B) the proper certificate of registration and license plates have
been procured.
[23] There is no dispute that Katherine and Cole’s vehicle did not have a proper
license plate. As a result, the officer was required by statute to take the Jeep
into his custody, and he properly arranged to have it towed. Cole
acknowledges he did not have a valid license but argues the officer should have
let him call his roadside assistance program to have the vehicle towed without
being impounded. Allowing Cole to tow the Jeep without impoundment would
not necessarily have fulfilled Indiana Code section 9-18-2-43’s goal of ensuring
the vehicle is not driven again until proper license plates have been procured.
The officers’ decision to impound the vehicle did not violate the Fourth
Amendment.
[24] Next, to be valid under the Fourth Amendment, an inventory search must be
conducted pursuant to and in conformity with standard police procedures.
Whitley v. State, 47 N.E.3d 640, 645 (Ind. Ct. App. 2015), trans. denied.
Inventory searches serve three purposes: (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. An inventory search
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must not be a ruse for general rummaging to discover incriminating evidence.
Id. (quotation omitted).
[25] In the current case, Cole does not argue that the officers failed to follow
standard inventory procedures. Rather, he claims the officers should have
simply given him Katherine’s purse without searching it. As the petitioner,
Cole bore the burden of proving that the officers failed to comply with
established police department policies in conducting the search. He failed to
submit any evidence to the post-conviction court regarding relevant department
policies on inventory searches and whether the officers complied with them.
The department’s inventory policy reasonably could have required the officers
to search the purse. See, e.g., Moore v. State, 637 N.E.2d 816, 820 (Ind. Ct. App.
1994) (considering a police department’s impoundment policy that required an
“[i]nventory of all items in the vehicle, which are not regular parts or
accessories to the car”), trans. denied. Indeed, in this case the RSPD issued a
receipt for the purse and its contents. Cole has failed to demonstrate that the
inventory search violated the Fourth Amendment.
[26] Turning to article I, section 11 of the Indiana Constitution, as a general rule the
Indiana Supreme Court interprets and applies that provision independently
from the Fourth Amendment. Whitley, 47 N.E.3d at 648. The purpose of
article I, section 11 is to protect from unreasonable police activity those areas of
life that Hoosiers regard as private. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
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2001). In resolving challenges under section 11, courts must consider whether
the police intrusion was reasonable under the totality of the circumstances. Id.We consider: (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. Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017),
trans. denied.
[27] In this case, the officers’ decision to impound the Jeep was authorized by
statute, and they were aware that the driver, Katherine, had committed several
criminal offenses. Furthermore, the seizure was a minimal, reasonable
intrusion on Cole’s right of ownership in the Jeep because he was not licensed
to drive, and without proper license plates the vehicle was not drivable in any
event. Further, impoundment served important law enforcement needs,
namely ensuring the Jeep was not driven again without proper plates,
insurance, and a properly licensed driver.
[28] The inventory search was also reasonable under the totality of the
circumstances. Again, the officers were already aware that Katherine had
committed offenses. Based on the record before us, the intrusion caused by the
search was minimal because there is no indication that the officers permanently
seized anything other than the contraband. Finally, the officers needed to
conduct the search to ensure that the Coles’ personal property would be taken
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care of during impoundment and to protect themselves from possible claims of
theft. See Whitley, 47 N.E.3d at 649 (impoundment of car in roadway and
inventory search of vehicle, which led to discovery of contraband, did not
violate article I, section 11).
[29] In summary, if Cole’s trial attorney had filed a motion to suppress evidence
obtained from the inventory search on grounds that the search and seizure
violated Cole’s rights under the Fourth Amendment and article I, section 11,
that motion would not have prevailed because Cole did not have an expectation
of privacy in Katherine’s purse or standing to challenge that portion of the
inventory search. Furthermore, the impoundment of the vehicle and the search
of the purse did not infringe upon Cole’s constitutional protections against
unconstitutional search and seizure. As a result, the post-conviction court did
not err in rejecting Cole’s claim of ineffective assistance, because prevailing
professional norms do not require counsel to file a motion that would not have
been granted.
Conclusion
[30] For the reasons stated above, we affirm the judgment of the trial court.
[31] Affirmed.
Kirsch, J., and Bailey, J., concur.
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