FILED
Feb 03 2017, 8:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richelle Marie Whitenack, February 3, 2017
Appellant-Defendant, Court of Appeals Case No.
35A04-1608-CR-1811
v. Appeal from the Huntington
Superior Court
State of Indiana, The Hon. Jeffrey R. Heffelfinger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
35D01-1511-F6-252
Bradford, Judge.
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Case Summary
[1] On November 17, 2015, Gail Whitenack (“Gail”) searched her step-daughter
Appellant-Defendant Richelle Marie Whitenack’s vehicle while it was in Gail’s
driveway because Gail was concerned that Whitenack was using drugs. During
her search, Gail found items that suggested that Whitenack was, in fact, using
drugs. Gail called the police and told them what she had found. The police
department subsequently issued a tip to its deputies which included a
description of Whitenack’s vehicle and the suspected drug related items.
[2] Later that same day, Whitenack was pulled over for speeding and crossing the
center line twice. The deputy radioed his location and a description of the
vehicle when he realized that the vehicle he had pulled over matched the
vehicle in the tip. One or two minutes later, the department’s K9 officer arrived
to the scene with his dog. The K9 officer and his dog walked around the
vehicle while the deputy finished writing Whitenack’s ticket. The dog indicated
the presence of drugs in the vehicle which prompted the deputy and K9 officer
to search the vehicle. During their search, the deputies discovered a split-box of
syringes, wrapping from a coffee package, and a spoon with burnt residue. The
residue on the spoon was later tested by the Indiana State Police Department
laboratory which identified the residue as heroin. On November 24, 2015, the
State of Indiana (the “State”) filed charges against Whitenack for: Count 1,
unlawful possession of a hypodermic syringe; Count 2, possession of
paraphernalia; Count 3, driving left of the center lane; and Count 4, exceeding
the posted speed limit. Whitenack was found guilty as charged following a
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bench trial and was sentenced to one year executed, one year suspended and
one-half year of probation for Count 1, sixty days executed for Count 2, and
fines of $10.00 each for Counts 3 and 4. The sentences for Count 1 and 2 were
ordered to be served concurrently.
[3] On appeal, Whitenack challenges the trial court’s admission of evidence during
her bench trial. Specifically, Whitenack raises the following restated issue:
whether the trial court abused its discretion when it admitted evidence found in
Whitenack’s vehicle during a valid traffic stop. Because the trial court did not
abuse its discretion when it admitted evidence found by a K9 officer and his dog
during a valid traffic stop, we affirm.
Facts and Procedural History
[4] Around 7:00 am on November 17, 2015, Gail searched her step-daughter
Whitenack’s vehicle. Whitenack occasionally stayed with Gail and
Whitenack’s father. Gail was concerned because she had found syringes and a
spoon in Whitenack’s duffle bag a month earlier while she was looking for hair
products that she believed Whitenack had borrowed. Gail took photos of those
items and turned them in to the police. The following day, Gail’s son found
cotton balls with brown residue on them in Gail’s home which he took to the
police as well.
[5] After her search on November 17, 2015, Gail called police because she found a
box of syringes, a spoon, and a small bag with some pills in the trunk of
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Whitenack’s vehicle. The Huntington County Sheriff’s Department gave the
deputies a description of Whitenack’s vehicle along with a tip regarding the
suspected drug related items. Later that day, Whitenack was pulled over by
Deputy Dave Jackson for going 61 mph in a 55 mph zone and driving left of the
center lane twice. Deputy Jackson radioed dispatch with his location and the
vehicle description because he recognized that the vehicle matched the
description of the one from the tip he had received. Within a minute or two,
the department’s K9 officer, Deputy Dave McVoy, arrived with his K9 partner.
While Deputy Jackson was still writing Whitenack’s ticket, Deputy McVoy
walked his dog around the vehicle. The dog indicated the presence of drugs
inside of Whitenack’s vehicle. Deputies McVoy and Jackson then searched
Whitenack’s vehicle while she stood outside. During their search, the deputies
found a split-box of syringes, wrapping from a coffee package, and a spoon with
burnt residue. The burnt residue on the spoon was later tested by the Indiana
State Police laboratory which determined that the residue was heroin.
[6] On November 24, 2015, the State of Indiana (the “State”) filed charges against
Whitenack for: Count 1, unlawful possession of a hypodermic syringe; Count 2,
possession of paraphernalia; Count 3, driving left of the center lane; and Count
4, exceeding the posted speed limit. On July 7, 2016, following a bench trial,
Whitenack was found guilty as charged. That same day, the trial court
sentenced Whitenack to the following: one year executed, one year suspended,
and one-half year on probation for Count 1; sixty days executed for Count 2;
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and fines of $10.00 each for Count 3 and 4. The sentences in Counts 1 and 2
were ordered to be served concurrently. This appeal follows.
Discussion and Decision
[7] Whitenack claims that the deputies’ search of her vehicle was unreasonable
under Article I, Section 11 of the Indiana Constitution because the State had
received a report with a description of her vehicle, its location, and that it
contained contraband over eight hours before her vehicle was searched and the
State made no attempt to secure a warrant prior to her being pulled over for
speeding and crossing the center line. This appeal follows a completed trial.
Therefore, the issue on appeal is properly framed as whether the trial court
abused its discretion by admitting the challenged evidence at trial. Lindsey v.
State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009). An abuse of discretion occurs
when the trial court’s decision is against the logic and effect of the
circumstances and facts before it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct.
App. 2005). “We will not reweigh the evidence, and we consider any
conflicting evidence in favor of the trial court’s ruling.” Lindsey, 916 N.E.2d at
238. We will also consider any uncontested evidence favorable to the
defendant. Id. The legal conclusions of the trial court will be reviewed de novo.
Id.
[8] Whitenack concedes that she was pulled over on November 17, 2015, “for
speeding and driving left of center.” Appellant’s Br. p. 11. Whitenack further
concedes that “[b]ased on Gail’s original tip, a K9 officer was in the area to
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conduct a free air sniff of the vehicle.” Appellant’s Br. p. 11. Therefore,
Whitenack is not disputing the fact that the traffic stop and free air sniff were
lawful and the subsequent search of her vehicle was reasonable.
[9] Whitenack’s argument rests upon the belief that the deputies should have
obtained a search warrant after Gail originally called in a tip about the
contraband earlier that day. We know of no cases that suggest that a search
which is constitutionally permissible at the time it is made is invalid and
unreasonable under Article I, Section 11 of the Indiana Constitution if “the
police [had] ample opportunity to obtain a search warrant prior to searching a
vehicle.” Appellant’s Br. p. 12.
[10] Article I, Section 11 reads:
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.
“We have recognized that the purpose of Article One, 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. 2001) (internal citation and
quotations omitted). “In resolving challenges asserting this section, courts must
consider the circumstances presented in each case to determine whether the
police behavior was reasonable.” Id. (internal citation and quotations omitted).
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[11] At the time that Whitenack was pulled over and the vehicle was subsequently
searched, the deputies had ample probable cause to support their actions. The
vehicle was originally pulled over due to Whitenack’s speeding and crossing the
center line twice. The deputies subsequently searched the vehicle after the K9
officer’s dog alerted them to the presence of drugs. The fact that there may or
may not have been enough information to obtain a search warrant to search
that same vehicle earlier that day has no impact on the legality of the
subsequent search and seizure; officers do not have to obtain a warrant at the
first practicable moment. See U.S. v. Thompson, 700 F.2d 944, 950 (5th Cir.
1983); U.S. v. Garza-Hernandez, 623 F.2d 496, 501 (7th Cir. 1980).
[12] When we review a trial court’s decision to determine if there was an abuse of
discretion regarding the admission of evidence, “we may affirm the trial court’s
decision to admit evidence seized as a result of a search based on any legal
theory supported by the record.” Johnson v. State, 38 N.E.2d 658, 661 (Ind. Ct.
App. 2015). Moreover, we have previously held that there is “nothing
unreasonable in permitting an officer, who may have knowledge or suspicion of
unrelated criminal activity by the motorist, to nevertheless respond to an
observed traffic violation.” Mitchell, 745 N.E.2d at 787. Therefore, the
evidence obtained from Whitenack’s vehicle by the deputies during the traffic
stop was the product of a legal search and the trial court did not abuse its
discretion when it admitted such evidence at trial. Based upon the above-stated
conclusions and evidence in the record, we affirm the trial court’s decision to
admit the evidence found during the traffic stop of Whitenack’s vehicle.
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[13] We affirm the judgement of the trial court.
Vaidik, C.J., and Brown, J., concur.
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