FILED
Dec 11 2017, 9:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Bernard Sansbury, December 11, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1704-CR-793
v. Appeal from the Marion Superior
Court.
The Honorable Steven J. Rubick,
State of Indiana, Magistrate.
Appellee-Plaintiff. Trial Court Cause No.
49G10-1601-CM-2065
Barteau, Senior Judge
Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017 Page 1 of 16
Statement of the Case
[1] Richard Bernard Sansbury appeals his convictions of carrying a handgun
1
without a license, a Class A misdemeanor, and driving with a suspended
license with a similar infraction within the past ten years, a Class A
2
misdemeanor. We reverse and remand.
Issues
[2] Sansbury raises three issues, which we consolidate and restate as:
I. Whether the court erred in admitting evidence obtained
during a search of the vehicle Sansbury was driving.
II. Whether there is sufficient evidence to sustain Sansbury’s
conviction for driving with a suspended license with a
similar infraction within the past ten years.
Facts and Procedural History
[3] On the evening of January 17, 2016, Detective Andrew McKalips and Officer
Mollie Johanningsmeier of the Indianapolis Metropolitan Police Department
(IMPD) were on patrol in Indianapolis. Detective McKalips was training
Officer Johanningsmeier, who was a rookie. McKalips saw a vehicle,
specifically a Pontiac Aztek, make a turn without activating a turn signal. He
also noted that one of the Aztek’s headlights was not working.
1
Ind. Code § 35-47-2-1 (2014).
2
Ind. Code § 9-24-19-2 (2012).
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[4] McKalips turned his car around and stopped the Aztek in an apartment
complex. The Aztek stopped near an apartment building, one and a half to two
feet from the curb. The vehicle did not stop in a marked parking spot, but was
instead sitting by the side of a road where traffic drove through the complex.
McKalips approached the Aztek and learned that Sansbury was the driver.
Sansbury had a passenger, Elisha Goins. Sansbury lived in the nearby building.
[5] McKalips determined Sansbury did not have a valid driver’s license. Further,
Sansbury was not the Aztek’s registered owner. The registered owner was
Sansbury’s mother, Jorja Payton. McKalips decided to impound the Aztek.
He contacted a tow truck and requested backup.
[6] Next, McKalips searched the vehicle, claiming it was necessary to inventory its
contents. During the search he found three handguns. Two were in the center
console, which was closed but not locked. McKalips found the third handgun
under a back seat, concealed under a shirt. He also saw a clip of ammunition
wedged between the driver’s seat and the center console. McKalips determined
that neither Sansbury nor Goins had a valid permit to possess guns. At that
point, the search ended, and neither McKalips nor Johanningsmeier prepared a
written inventory of the Aztek’s contents.
[7] The State charged Sansbury with possession of a handgun without a license and
driving with a suspended license with a similar infraction within the past ten
years. Sansbury filed a motion to suppress all evidence discovered through the
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search and seizure of the automobile. The trial court held an evidentiary
hearing and denied the motion at the end of the hearing.
[8] The case was tried to the bench, and Sansbury renewed his objection to the
admission of evidence discovered during McKalips’ search. The trial court
overruled his objection. After the State ended its presentation of evidence,
Sansbury moved for involuntary dismissal. The court adjourned the hearing to
consider cases cited by Sansbury. At a subsequent hearing, the court denied
Sansbury’s motion and offered Sansbury the opportunity to present evidence.
Sansbury chose not to present any evidence. The trial court determined
Sansbury was guilty as charged and imposed a sentence. This appeal followed.
Discussion and Decision
I. Evidentiary Issue
[9] As a preliminary matter, we note that the parties’ briefs contain references to
evidence presented during the suppression hearing. The consideration of
evidence presented at a previous proceeding in the same action is sometimes
permitted. L.H. v. State, 878 N.E.2d 425, 429 (Ind. Ct. App. 2007). For
example, incorporation of testimony from one proceeding into another may be
appropriate when agreed to by the parties or when authorized by statute. Id.
[10] In the current case, prior to trial, neither party asked the court to incorporate
the evidence that was presented during the suppression hearing into the
evidence presented at trial. Sansbury merely stated during trial that he was
incorporating his arguments from the suppression hearing in support of his
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objections and motion for involuntary dismissal. Further, there is no indication
that the court relied on evidence presented at the suppression hearing during
trial. We thus limit our evidentiary review to the testimony and exhibits
presented during trial.
II. Constitutional Claims - Impoundment and Search of the
Vehicle
[11] Sansbury claims the handguns and ammunition should not have been admitted
into evidence because the officers’ impoundment of his mother’s Aztek and
subsequent search violated his federal and constitutional protections against
unreasonable search and seizure. The State responds that the impoundment
and inventory search were proper and did not violate Sansbury’s constitutional
rights. We resolve this issue under the Fourth Amendment and need not
address Sansbury’s claim under the Indiana Constitution.
[12] We review de novo a trial court’s ruling on the constitutionality of a search or
seizure, but we give deference to a trial court’s determination of the facts.
Belvedere v. State, 889 N.E.2d 286, 287 (Ind. 2008). We do not reweigh the
evidence, but consider conflicting evidence most favorable to the trial court’s
ruling. Id. at 288.
[13] 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.” The amendment, as applied to the
states through the Fourteenth Amendment, requires a warrant for a search to be
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considered reasonable unless an exception to the warrant requirement applies.
Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). When a search is conducted
without a warrant, the State has the burden of proving that the search falls into
one of the exceptions to the warrant requirement. Meister v. State, 933 N.E.2d
875, 878 (Ind. 2010).
[14] One exception to the warrant requirement is a police inventory search of a
vehicle following impoundment. Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993).
Impoundment is proper when it is part of law enforcement’s community
caretaking function or is otherwise authorized by statute. Id. at 432. In this
case, the State does not allege that the impoundment of the Aztek was justified
by statute, and we must determine whether the seizure was permissible under
law enforcement’s community caretaking function.
[15] When impoundment is not specifically directed by statute, the risk increases
that a decision to tow will be motivated solely by the desire to conduct an
investigatory search. Id. at 433. To prevail on the question of whether an
impoundment was warranted under the community caretaking function, the
State must demonstrate that: (1) 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 (2) the decision to combat that threat by
impoundment was in keeping with established departmental routine or
regulation. Id.
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[16] In the current case, the IMPD’s policy on impounding vehicles and conducting
inventory searches was admitted into evidence at trial. Detective McKalips
explained that he impounded the vehicle pursuant to the department’s policy,
specifically a provision that a vehicle may be impounded and towed if it is
“operated by a non-licensed or suspended driver.” Tr. Vol. III, State’s Trial Ex.
2, p. 2. He also noted the car was “not in a parking spot.” Tr. Vol. II, p. 70.
The record reflects that Sansbury parked the car near an apartment building,
one and a half to two feet from the curb, in an area where traffic drove through
the complex. Tr. Vol. III, State’s Trial Ex. 1. The IMPD’s policy authorizes
the towing of a vehicle that is causing “a traffic or other hazard.” Tr. Vol. III,
State’s Trial Ex. 2, p. 2. Based upon these two reasons, we conclude the State
established, for purposes of the Fourth Amendment, that the vehicle posed a
threat of harm or was itself imperiled, and the decision to impound the car
complied with established department regulations. See Ratliff v. State, 770
N.E.2d 807, 810 (Ind. 2002) (decision to impound truck did not violate Fourth
Amendment; truck was stopped in the middle of a parking lot, not in a space).
[17] Sansbury cites to Taylor v. State, 842 N.E.2d 327 (Ind. 2006), in support of his
claim that the decision to impound was improper, but that case is factually
distinguishable. In that case, the Court concluded the car posed no hazard to
public safety because it was parked “on the correct side of the parking lot,” in
“a permissible parking area.” Id. at 332. In Sansbury’s case, the car was not
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parked in a parking area, but rather was stopped in a road where traffic drove
through the complex.
[18] Sansbury also cites to Fair, 627 N.E.2d 427, but that case is distinguishable as to
the issue of impoundment. In that case, the Indiana Supreme Court determined
that the police erred in impounding the defendant’s car because it was “neatly
parked” in an apartment complex and “did not impede traffic.” Id. at 433-34.
By contrast, Sansbury’s car was parked one and a half to two feet from the curb,
in the flow of traffic.
[19] As further support for his challenge to the impoundment of his car, Sansbury
points to testimony that: (1) the owner of the apartment complex permitted
residents to park along the curb when the parking spots were full; and (2)
Sansbury’s roommate had called Sansbury’s mother during the stop, and she
appeared at the apartment complex during the stop and should have been
allowed to move the car. This evidence was submitted at the suppression
hearing, not at trial. Even if the evidence had been submitted at trial, it does
not change the result. Regardless of where the owner of the complex permitted
people to park under certain circumstances, the Aztek was still stopped in an
area through which traffic drove. In addition, Detective McKalips had told
Sansbury’s roommate he would release the car to Sansbury’s mother if she
arrived before it was placed on the tow truck, but she did not meet that
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deadline. We agree with the trial court that the decision to impound the vehicle
did not violate the Fourth Amendment.
[20] We reach a different conclusion as to the vehicle search that followed the
decision to impound the Aztek. The State claims the search was a valid
inventory search. To be reasonable under the Fourth Amendment, an
inventory search must be conducted pursuant to standard police procedures. Id.
at 435. The rationale for the inventory exception is threefold: (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. Gibson v.
State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000). An inventory search must not
be a pretext for a general rummaging to discover incriminating evidence. Fair,
627 N.E.2d at 435 (quotation omitted).
[21] At the risk of stating the obvious, courts should keep in mind that such a search
must be “designed to produce an inventory of the vehicle’s contents.” Id. at
430. If an officer conducts an inventory search in compliance with valid
protocol, the search may be constitutionally valid despite minor deviations from
the policy. Sams v. State, 71 N.E.3d 372, 377-78 (Ind. Ct. App. 2017). Major
deviations from an inventory search policy may give rise to an inference of
pretext which the State must overcome. Id. at 378.
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[22] In this case, the IMPD’s policy for impounding vehicles defines an inventory
search as “conducting an administrative, routine and warrantless search of the
passenger area (including the glove compartment), trunk, and closed containers,
pursuant to lawfully towing a vehicle.” Tr. Vol. III, State’s Trial Ex. 2, p. 2.
The policy further provides, in relevant part:
IV. Inventory Searches
NOTE: An inventory search should not be motivated by an
officer’s desire to investigate and seize evidence of a criminal act.
A. Whenever an officer takes a vehicle into custody, an
inventory search will be conducted prior to impoundment and a
detailed listing of any property found in the vehicle will be made.
1. The vehicle inventory search will consist of searching the
passenger compartment of the vehicle.
2. If a key is available, or if unlocked, the glove compartment
and trunk will also be searched.
NOTE: Under NO circumstances should force be used to open
either the glove compartment or trunk for an inventory search.
3. All containers in the vehicle must be searched. Locked
containers should not be forced open.
****
B. All property discovered during an inventory search, including
those found in closed containers, will be listed in the officer’s
personal notebook.
Id. at 5-6 (emphasis added).
[23] In this case, the officers’ conduct deviated greatly from the requirements of the
policy. Although Detective McKalips conceded the policy required an
inventory “to insure [sic] that the valuables are accounted for,” Tr. Vol. II, p.
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64, neither he nor Officer Johanningsmeier created a list of property found
during the search of the Aztek. Officer Johanningsmeier filled out a tow slip for
the tow truck, but she did not include a description of the vehicle’s contents,
even though she testified it was her understanding that all property of value
should be listed on the tow slip. The officers’ failure to produce a written
inventory disserved two of the purposes of inventory searches: protection of
private property in police custody and protection of police against claims of lost
or stolen property.
[24] Further, Detective McKalips’ focus on valuable items does not comport with
the policy, which requires an inventory of all property found in the vehicle, not
just items that the officer subjectively perceives to be valuable. The focus on
“valuable” items undermines confidence in the validity of the inventory search.
See Sams, 71 N.E.3d at 381 (finding inventory search invalid where the officer
searched only for valuable items, but the official policy required an inventory of
all items found in the vehicle).
[25] Officer Johanningsmeier attempted to explain these deviations from the official
policy by stating that after Detective McKalips found the guns, his efforts
“turned into a search of the vehicle for evidence. It wasn’t an inventory search
any more.” Tr. Vol. II, p. 101. An officer’s focus on contraband to the
exclusion of personal items is an additional indication of pretext. See Fair, 627
N.E.2d at 436 (inventory search deemed unreasonable where officer focused on
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marijuana and a sawed-off shotgun). Officer Johanningmeier’s testimony,
combined with the officers’ misinterpretation of the policy and their failure to
generate a written inventory of all items found in the car, leads us to conclude
that the inventory search was in essence a general investigatory search for
contraband, and therefore unreasonable under the Fourth Amendment. See
Sams, 71 N.E.3d at 382-83 (officers’ failure to comply with official policy
governing inventory searches rendered search unreasonable).
[26] The State argues that this Court has on several occasions determined that
failure to produce a written inventory does not render an inventory search
unreasonable, but the cases the State cites are distinguishable. In Weathers v.
State, 61 N.E.3d 279 (Ind. Ct. App. 2015), a panel of this Court upheld a
conviction for possession of a handgun without a license, determining an
inventory search was valid even though the officer failed to write an inventory
of the vehicle’s contents. The Court noted the defendant had told the officer
prior to the search that there was a handgun in the car, and during the search
the officer found the gun in the exact location the defendant had described.
Under the circumstances of that case, the Court determined the lack of a written
inventory was not dispositive. Id. at 289.
[27] By contrast, in the current case neither McKalips nor Johanningsmeier asked
Sansbury or his passenger about handguns or contraband in the Aztek prior to
the search, and after the search Sansbury and the passenger professed not to
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know that the guns and ammunition were in the car. These facts are sufficient
to distinguish Weathers from the current case.
[28] In Whitley v. State, 47 N.E.3d 640 (Ind. Ct. App. 2015), trans. denied, a panel of
this Court determined that the failure to fill out an inventory of the vehicle’s
items did not render the search unreasonable because, among other grounds, a
technician took photographs of the vehicle’s interior, which provided a record
of its contents in a different format. In the current case, there are no documents
that provide a record of the Aztek’s contents other than the probable cause
affidavit, and that document focuses on the contraband.
[29] Finally, in Jackson v. State, 890 N.E.2d 11 (Ind. Ct. App. 2008), a panel of this
Court determined that an inventory search was reasonable even though the
arresting officer did not fill out an inventory report, because another officer on
the scene filled out the report. In Sansbury’s case, none of the officers filled out
such a report.
[30] The State further claims that the search was a valid inventory search because
the officers described some of the items in the probable cause affidavit and
because an officer photographed the vehicle prior to it being towed. These
claims are without merit because: (1) as noted above, the affidavit discussed
only the guns and ammunition, plus a shirt under which one of the guns had
been hidden; and (2) the photographs were not admitted into evidence, and we
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may not speculate as to whether they are an adequate substitute for a written
inventory. Having concluded that the search violated the Fourth Amendment,
we must further conclude the trial court erred in admitting as evidence the
handguns discovered during the search. We reverse Sansbury’s conviction for
possession of a handgun without a license.
III. Sufficiency of the Evidence – Driving While Suspended
[31] Sansbury argues the State failed to prove he committed the offense of driving
with a suspended license with a similar infraction within the previous ten years.
The State does not dispute that Sansbury did not commit a similar infraction
within the previous ten years but claims he is still guilty of an infraction of
driving with a suspended license.
[32] In reviewing a sufficiency of the evidence claim, we neither reweigh the
evidence nor assess the credibility of the witnesses. Jennings v. State, 982 N.E.2d
1003, 1005 (Ind. 2013). Rather, we look to the evidence and reasonable
inferences that support the verdict and affirm the conviction if a rational trier of
fact could have found the defendant guilty beyond a reasonable doubt. Id.
[33] To establish a conviction for the offense, the State was required to prove beyond
a reasonable doubt that: (1) Sansbury (2) operated a motor vehicle on a
highway (3) knowing that his driving privileges, license, or permit had been
suspended or revoked; and (4) had committed a similar violation less than ten
years prior. Ind. Code § 9-24-19-2.
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[34] In this case, Detective McKalips consulted his computer during the traffic stop
on January 17, 2016. He determined at the time that Sansbury did not have a
valid license, but by the time of the trial he did not “recall a specific denotation
that [Sansbury] was not supposed to be driving a vehicle on that night.” Tr.
Vol. II, p. 62. Sansbury’s official driving record was admitted into evidence at
trial, but it fails to demonstrate that his license was suspended on January 17,
2016. Instead, it shows Sansbury’s license was suspended from July 7, 2015
through October 5, 2015, with the period of suspension ending well before the
night of the traffic stop.
[35] The State argues the suspension could have remained in effect as of January 17,
2016, if Sansbury had failed to provide proof of insurance to the Bureau of
Motor Vehicles at the scheduled end of the suspension period. This argument
invites us to speculate as to evidence not in the record. The State further argues
that Sansbury bore the burden of proving by a preponderance of the evidence
that he had a valid license at the time of the alleged offense. The State is
correct. Ind. Code § 9-24-19-7 (2015). Nevertheless, the Bureau of Motor
Vehicle’s record for Sansbury, standing alone, demonstrates his suspension had
come to an end by the time of the traffic stop, and there is no other evidence
from which we may infer Sansbury’s license was not reinstated following the
end of the suspension. The State failed to carry its burden of proof as to
whether Sansbury’s license was suspended on the date in question, and we must
reverse his conviction. See Frink v. State, 568 N.E.2d 535, 538 (Ind. 1991)
(insufficient evidence to sustain conviction for driving with a suspended license
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when defendant’s record showed the period of suspension had elapsed by the
time of the traffic stop).
Conclusion
[36] For the reasons stated above, we reverse the judgment of the trial court and
remand for further proceedings not inconsistent with this opinion.
[37] Reversed and remanded.
Baker, J., and Riley, J., concur.
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