FILED
Mar 09 2018, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell B. Cate Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC Attorney General of Indiana
Carmel, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carmen Nicolle Harbaugh, March 9, 2018
Appellant-Defendant, Court of Appeals Case No.
29A04-1706-CR-1228
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Jonathan M.
Appellee-Plaintiff Brown, Judge
Trial Court Cause No.
29D02-1507-F4-6405
May, Judge.
Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018 Page 1 of 10
[1] Carmen Nicolle Harbaugh appeals her convictions of Level 4 felony dealing in
cocaine, 1 Level 4 felony dealing in methamphetamine, 2 Level 6 felony
possession of cocaine, 3 Level 6 felony possession of methamphetamine, 4 Class
B misdemeanor possession of marijuana, 5 and Class C misdemeanor possession
of paraphernalia. 6 She argues the trial court abused its discretion when it
admitted the evidence obtained as part of the search of her vehicle. She
presents two issues for our review, one of which we find dispositive: whether
the State presented sufficient evidence officers had probable cause to conduct a
warrantless search of her vehicle. We affirm.
Facts and Procedural History 7
[2] On July 25, 2015, Westfield Police Captain John Lowes was conducting
surveillance in plain clothes and in an unmarked police car. At approximately
2:00 p.m., a black Chevy Blazer passed his location. Captain Lowes recognized
the vehicle, which belonged to Harbaugh, and one of the occupants of the
1
Ind. Code § 35-48-4-1(c) (2014).
2
Ind. Code § 35-48-4-1.1(c) (2014).
3
Ind. Code § 35-48-4-6(a) (2014).
4
Ind. Code § 35-48-4-6.1(a) (2014).
5
Ind. Code § 35-48-4-11(a).
6
Ind. Code § 35-48-4-8.3(b).
7
We held oral argument on this matter on February 5, 2018, at Milan High School in Milan, Indiana. We
thank the teachers and staff of Milan High School for their hospitality and counsel for their able
presentations.
Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018 Page 2 of 10
vehicle, Harbaugh, from prior encounters. He believed the driver of the vehicle
to be Harbaugh’s boyfriend, Jacob Beach. Captain Lowes knew Beach’s
driving privileges were suspended and Beach had an outstanding arrest warrant
for a probation violation. Captain Lowes followed the Chevy Blazer and
contacted Sergeant Robert Dine for back up.
[3] Captain Lowes observed neither Harbaugh nor Beach was wearing a seatbelt.
In addition, Captain Lowes saw the Blazer fail to stop at an intersection and the
license plate on the vehicle was expired. He relayed this information to
Sergeant Dine, who pulled the Blazer over in a fast food parking lot. Sergeant
Dine approached the vehicle, confirmed Beach’s identity, and asked him to exit
the vehicle. After a brief scuffle, Captain Lowes and Sergeant Dine arrested
Beach.
[4] While Captain Lowes and Sergeant Dine were arresting Beach, K9 Officer
Song Kang arrived on the scene with his K9 partner, Gorky. Captain Lowes
decided to impound the Blazer because its license plate was expired, and he
asked Harbaugh to exit the vehicle. She did so and sat down at a nearby picnic
table.
[5] Officer Kang deployed Gorky “for a sniff of the vehicle[.]” (Tr. Vol. II at 23.)
Gorky alerted on a zipped black bag in the middle of the back seat of the
vehicle. Officer Kang opened the bag and found a small wooden box. Inside
the wooden box, officers found plastic bags containing white powder and white
crystalline substances, cash, Ziploc bags, and green plant material. Also in the
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black bag were digital scales and pills. Officer Kang found Harbaugh’s purse in
the car. Inside the purse, he found several pills, some pills packaged for
individual sale in small plastic bags, bags with a white powder residue, and a
cell phone. Three compact mirrors with powder residue on them were also
found inside the vehicle. Sergeant Dine place Harbaugh in handcuffs, and a
female officer on the scene, Officer Angela Martin, conducted a search of
Harbaugh’s person and discovered three pills, a small plastic bag containing a
white crystalline substance, three small broken pieces of straw, and a broken
portion of an ink pen. The officers placed Harbaugh under arrest.
[6] On July 27, 2015, the State charged Harbaugh with Level 4 felony dealing in
cocaine, Level 4 felony dealing in methamphetamine, Level 6 felony possession
of cocaine, Level 6 felony possession of marijuana, Level 6 felony maintaining
a common nuisance, 8 Class A misdemeanor possession of a controlled
substance, 9 Class B misdemeanor possession of marijuana, and Class C
misdemeanor possession of paraphernalia. On December 30, 2015, Harbaugh
filed a motion to suppress. The trial court held a hearing on the motion to
suppress on May 13, 2016, and denied the motion.
[7] On April 17, 2017, the State moved to dismiss the Level 6 felony maintaining a
common nuisance and Class B misdemeanor possession of a controlled
8
Ind. Code § 35-48-4-13(b)(1) (2014).
9
Ind. Code § 35-48-4-7(a).
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substance charges, and the trial court granted the request. Harbaugh’s jury trial
began on April 18, 2017. The jury returned a guilty verdict on all remaining
counts. On May 19, 2017, the trial court sentenced Harbaugh to an aggregate
sentence of nine years with four years suspended.
Discussion and Decision
[8] The trial court admitted the evidence collected as part of the vehicle search.
Harbaugh did not seek interlocutory review of the denial of her motion to
suppress but instead appeals following trial. This issue is therefore
“appropriately framed as whether the trial court abused its discretion by
admitting the evidence at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.
Ct. App. 2005).
[9] Our review of rulings on the admissibility of evidence is essentially the same
whether the challenge is made by a pre-trial motion to suppress or by trial
objection. Id. We do not reweigh the evidence, and we consider conflicting
evidence most favorable to the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
[10] Harbaugh argues the search of her vehicle violated her rights under the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution because the
interior search of the vehicle by Officer Kang’s K9 Gorky occurred “without
probable cause, a warrant, or her consent.” (Br. of Appellant at 20.)
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Fourth Amendment
[11] The Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Indiana Constitution protect an individual’s privacy and
possessory interests by prohibiting unreasonable searches and seizures.
Lundquist, 834 N.E.2d at 1067. Generally, to be lawful, a search must be
conducted after police obtain a judicially issued search warrant. Id. When a
search is conducted without a warrant, the State has the burden of proving an
exception to the warrant requirement permits the admission of the evidence
collected. Id.
[12] The “automobile exception” to the warrant requirement allows police to search
a vehicle without obtaining a warrant if they have probable cause to believe the
vehicle contains evidence of a crime. State v. Hobbs, 933 N.E.2d 1281, 1285
(Ind. 2010). Under this exception, “an operational vehicle is inherently mobile,
whether or not a driver is behind the wheel or has ready access.” Id. at 1286. A
dog sniff of the exterior of the vehicle indicating the presence of illicit
substances provides probable cause for a warrantless search of the interior of the
vehicle under the automobile exception. Id.
[13] Harbaugh does not argue about whether her vehicle was inherently mobile.
Instead, Harbaugh argues the State did not provide evidence Officer Kang’s K9
partner alerted outside her vehicle prior to entering the vehicle and finding
narcotics. Thus, she contends, the officers did not have probable cause to
search the interior of her vehicle without a warrant.
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[14] During trial, Officer Kang testified he “deployed [Gorky] into the vehicle[.]”
(Tr. Vol. III at 25.) However, Sergeant Dine testified, during the Motion to
Suppress hearing, “the dog indicated on the vehicle.” (Tr. Vol. II at 23.) Our
standard of review requires we consider the facts in the light most favorable to
the State. See Lundquist, 834 N.E.2d at 1067 (appellate court considers facts in
the light most favorable to the State). Thus, Gorky’s alert outside Harbaugh’s
car created probable cause to search the vehicle under the automobile exception
to the Fourth Amendment. See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff
resulting in alert for narcotics constitutes probable cause for interior search of
vehicle under automobile exception to the Fourth Amendment).
[15] We acknowledge that Harbaugh’s main contention on appeal is that Gorky
never alerted outside the vehicle, only alerted once inside the vehicle, and the
interior sniff of her vehicle which resulted in the discovery of contraband
violated her constitutional rights under the Fourth Amendment and Article 1,
Section 11 of the Indiana Constitution. Had there only been evidence that
Gorky alerted inside the vehicle, see Tr. Vol. III at 25 (Officer Kang testified he
“deployed [Gorky] into the vehicle”), this would have been an issue of first
impression in Indiana. However, since the State also presented evidence Gorky
alerted outside the vehicle, we need not address the legality of an interior dog
sniff. See Lundquist, 834 N.E.2d at 1067 (appellate court cannot reweigh
evidence or judge the credibility of witnesses).
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Article 1, Section 11
[16] The language of Article 1, Section 11, the search and seizure provision of the
Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth
Amendment counterpart. Article 1, Section 11 provides:
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.
Our Indiana Supreme Court has interpreted and applied Section 11
independently from federal Fourth Amendment jurisprudence. Mitchell v. State,
745 N.E.2d 775, 786 (Ind. 2001).
[17] To determine whether a search violates Article 1, Section 11 of the Indiana
Constitution, we must evaluate the “reasonableness of the police conduct under
the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.
2005). “The totality of the circumstances requires consideration of both the
degree of intrusion into the subject’s ordinary activities and the basis upon
which the officer selected the subject of the search or seizure.” Id. at 360. In
Litchfield, our Indiana Supreme Court summarized this evaluation:
In sum, although we recognize there may well be other relevant
considerations under the circumstances, we have explained
reasonableness of a search or seizure as turning on a balance of:
1) the degree of concern, suspicion, or knowledge that a violation
has occurred, 2) the degree of intrusion the method of the search
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or seizure imposes on the citizens’ ordinary activities, and 3) the
extent of law enforcement needs.
Id. at 361.
[18] Here, Gorky’s indication to the presence of narcotics on the exterior of
Harbaugh’s vehicle provided a “degree of concern, suspicion, or knowledge that
a violation occurred.” See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff
resulting in alert for narcotics constitutes probable cause for interior search of
vehicle under automobile exception to the Fourth Amendment). The interior
search of Harbaugh’s vehicle likely imposed a degree of intrusion into her
ordinary activities; however, law enforcement need was elevated because, while
she could not do so legally because the license plates were expired, Harbaugh
could have absconded with the vehicle as it was operable at the time and she
had not yet been arrested. The totality of the circumstances leads us to
conclude the officers’ search was reasonable. See Myers v. State, 839 N.E.2d
1146, 1154 (Ind. 2005) (upholding warrantless automobile search under similar
circumstances). 10
Conclusion
10
Harbaugh also argues the inventory search of her vehicle was improper for a variety of reasons including
the use of Gorky in the search, the lack of inventory slip indicating the items in the car, and the opening of
closed containers. While we will not address this issue as the probable cause issue is dispositive, we remind
the Westfield Police Department of the importance of complying with published department policy when
conducting an inventory search.
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[19] Gorky’s alert to the presence of narcotics supplied probable cause for officers to
engage in a warrantless search of Harbaugh’s car under the automobile
exception of the Fourth Amendment. Similarly, based on the totality of the
circumstances, the warrantless search did not run afoul of Article 1, Section 11
of the Indiana Constitution. Therefore, the trial court did not abuse its
discretion when it admitted evidence obtained as part of the warrantless search
of Harbaugh’s vehicle. Accordingly, we affirm her convictions.
[20] Affirmed.
Najam, J., and Altice, J., concur.
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