FILED
Aug 07 2019, 8:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Curtis T. Hill, Jr.
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl Smith, August 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3009
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G08-1705-CM-17562
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 1 of 10
Case Summary
[1] In May of 2017, a vehicle being driven by Carl Smith was stopped by police
after committing multiple traffic infractions. After it was determined that
Smith’s driver’s license was suspended, officers decided to have the vehicle
towed. Prior to being towed, officers searched Smith’s vehicle and discovered a
handgun, for which Smith did not have a license to carry. In October of 2018,
Smith was convicted of Class A misdemeanor carrying a handgun without a
license and Class A infraction driving while suspended. Smith does not contest
his conviction for driving while suspended but contends that the purported
inventory search was not conducted pursuant to established departmental
routine or regulation, violating his rights under the Fourth Amendment of the
United States Constitution. Finding his contention dispositive and agreeing
with it, we affirm his conviction for driving while suspended and reverse his
conviction for carrying a handgun without a license.
Facts and Procedural History
[2] On May 10, 2017, a vehicle being driven by Smith was pulled over by
Indianapolis Metropolitan Police Officer Aaron Trotter for committing multiple
traffic infractions. After Smith admitted to not having a driver’s license, Officer
Trotter requested Smith’s name and date of birth. Smith replied that he did not
have a date of birth and asked for Officer Trotter’s supervisor. Once Officer
Trotter’s sergeant arrived, Smith was removed from the vehicle and placed in
handcuffs. Officer Trotter eventually obtained a document containing Smith’s
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 2 of 10
name and social security number. After identifying Smith by searching the
police database, a cross-search of the Bureau of Motor Vehicles’s records
revealed that Smith’s driver’s license was suspended. While Officer Trotter
began filling out paperwork to arrest Smith for driving while suspended and
failure to identify, two other officers searched the vehicle, discovering a
handgun in the glove box. At some point, an acquaintance of Smith arrived on
scene with a valid driver’s license and was permitted by the officers to drive
Smith’s vehicle home.
[3] On May 12, 2017, the State charged Smith with Class A misdemeanor carrying
a handgun without a license, Class A misdemeanor driving while suspended,
and Class C misdemeanor refusal to identify. On October 10, 2018, a bench
trial was held, at which Smith moved to suppress evidence discovered during
the search, claiming that the search was unconstitutional. The State solely
argued that the search was a valid inventory search. The trial court denied
Smith’s motion and found him guilty of Class A misdemeanor carrying a
handgun without a license and Class A infraction driving while suspended. The
trial court sentenced Smith to 365 days with 357 days suspended to probation.
Discussion and Decision
[4] Smith contends that the trial court erroneously admitted evidence obtained
during the search of his car because said search violated his rights pursuant to
the Fourth Amendment of the United States Constitution. Specifically, Smith
contends that the State failed to establish that the impoundment was done
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 3 of 10
pursuant to the police department’s established routine or regulation. The
admission of evidence is a matter entrusted to the sound discretion of the trial
court, and we will only reverse its ruling if it is clearly against the logic and
effect of the facts and circumstances. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.
2013) (internal quotations omitted). However, we review the trial court’s ruling
on the constitutionality of a search or seizure de novo. Campos v. State, 885
N.E.2d 590, 596 (Ind. 2008).
[5] The Fourth Amendment guarantees people the right “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” “[W]hen police impound a vehicle and inventory its contents, they
effect a search and seizure, and both measures must be reasonable—that is,
executed under a valid warrant or a recognized exception to the warrant
requirement.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). A well-
recognized exception to the warrant requirement is a valid inventory search.
Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000). “The rationale for the
inventory exception is three-fold: 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. Thus, the inventory search serves
an administrative rather than investigatory purpose. Wilford, 50 N.E.3d at 375.
The State bears the burden of proving that the inventory search was reasonable.
Id. The threshold question in determining the validity of an inventory search is
proper impoundment, and impoundment is reasonable if authorized by statute
or the police’s discretionary community-caretaking function. Id. at 374–75.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 4 of 10
Because neither party contends that the inventory search was authorized by
statute, we focus on whether the search was reasonable pursuant to the police’s
community-caretaking function.
[6] The Indiana Supreme Court has stated that “police may discharge their
caretaking function whenever circumstances compel it, but also that a decision
to impound must be exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity.” Id. at 375
(internal citations omitted). The rule that the standardized criteria or established
routine must exist as a precondition to a valid inventory search is designed to
ensure that an inventory search is not a pretext “for general rummaging in order
to discover incriminating evidence.” Fair v. State, 627 N.E.2d 427, 435 (Ind.
1993) (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)). Thus, in order for the
State to prevail on the question of whether an impoundment was warranted in
terms of the community-caretaking function and was not pretextual, it must
establish that (1) consistent with objective standards of sound policing, the
officer believed that the vehicle posed a threat of harm to the community or was
itself imperiled, and (2) the officer’s decision to impound the vehicle adhered to
established departmental routine or regulation. Wilford, 50 N.E.3d at 376.
[7] We conclude that the State failed to establish that Officer Trotter’s decision to
impound Smith’s vehicle adhered to established departmental routine or
regulation. While we do not require evidence of the department’s written
procedure, we do require more than conclusory testimony from an officer. Id.
An officer’s testimony provides adequate evidence of the department’s
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 5 of 10
impoundment procedure if “it outlines the department’s standard impound
procedure and specifically describes how the decision to impound adhered to
departmental policy or procedure—as opposed to an officer’s generalized
assertion.” Id. at 377 (internal quotations omitted). Here, Officer Trotter
testified that the inventory search of Smith’s vehicle was pursuant to a “typical
tow policy.” Tr. Vol. II p. 112. Officer Trotter also testified that it would be
typical for him to request a tow of a vehicle when there is no licensed driver
present. Officer Trotter’s testimony regarding impoundment is at best a
generalized assertion that the impoundment and search were conducted
pursuant to the department’s procedure; however, it fails to specially describe
how the impoundment decision adhered to the department’s procedure.
Moreover, the State acknowledges that “there was not sufficient evidence of the
[Indianapolis Metropolitan Police Department] inventory policy admitted at
trial.” Appellee Br. p. 14. Given the conclusory nature of Officer Trotter’s
testimony and the State’s concession, we conclude that the trial court
erroneously admitted the evidence obtained from the inventory search.
[8] The State argues that the search was a valid search incident to arrest, another
established exception to the warrant requirement. While Officer Meyer testified
that it was his belief that this was a search pursuant to a lawful arrest, the State
never adopted or made that argument at trial. Therefore, the State has waived
that argument for appellate review. See Whitfield v. State, 699 N.E.2d 666, 669
(Ind. Ct. App. 1998) (concluding that an argument raised for the first time on
appeal is waived and will not be considered), trans. denied.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 6 of 10
[9] The judgment of the trial court is affirmed in part and reversed in part, vacating
Smith’s conviction for Class A misdemeanor carrying a handgun without a
license.
Crone, J., concurs.
Tavitas, J., concurs in result with opinion.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 7 of 10
IN THE
COURT OF APPEALS OF INDIANA
Carl Smith,
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3009
v.
State of Indiana,
Appellee-Plaintiff.
Tavitas, Judge, concurring in result with opinion.
[10] I concur in result with the majority’s opinion. I write separately, however, to
emphasize the unusual circumstances here.
[11] In Wilford v. State, 50 N.E.3d 371, 375-76 (Ind. 2016), our Supreme Court noted
that the State is required to satisfy both of the following elements to prove that
the decision to impound a person’s vehicle without a warrant was reasonable:
(1) Consistent with objective standards of sound policing, an
officer must believe the vehicle poses a threat of harm to the
community or is itself imperiled; and
(2) The officer’s decision to impound adhered to established
departmental routine or regulation.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 8 of 10
Wilford, 50 N.E.3d at 375-76.
[12] It is perfectly clear that the first prong of the test was met here. The officer
observed multiple traffic violations and stopped the vehicle that Smith was
driving. An adult female and four children were also in the vehicle. Smith,
who adheres to the sovereign citizen ideology, repeatedly refused to identify
himself. The officer was eventually able to identify Smith and learned that
Smith’s driver’s license was suspended. The female passenger also lacked a
valid driver’s license. The officer testified that Smith’s vehicle posed a hazard
to public safety because it was parked in the single travel lane of the road,
which had no on-street parking lane, and the officers decided to tow the vehicle.
The officers then completed an inventory search of the vehicle and discovered
the handgun. As the vehicle was parked in the travel lane of a road and neither
adult in the vehicle possessed a valid driver’s license, towing of the vehicle was
clearly consistent with sound policing.
[13] As for the second element, it seems clear that the officer’s decision to impound
would have complied with any department’s impoundment policy. Our
Supreme Court, however, has held that “[o]fficer testimony provides adequate
evidence of departmental impound policy if it outlines the department’s
standard impound procedure and specifically describes how the decision to
impound adhered to departmental policy or procedure.” Wilford, 50 N.E.3d at
377. On appeal, the State concedes that “there was not sufficient evidence of
the IMPD inventory policy admitted at trial.” Appellee’s Br. p. 14. Because
the State failed to present sufficient evidence at the trial that the officer’s
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 9 of 10
decision adhered to established departmental routine or regulation, I am
constrained to find that the trial court erroneously admitted the evidence
obtained during the search of the vehicle.
[14] The State also argues that the evidence was admissible under the search
incident to arrest exception because it was reasonable to believe that evidence
relevant to the crime of arrest would be found in the vehicle. 1 Specifically, the
State contends the officers were looking in the vehicle for Smith’s identification.
The majority holds that the State waived this argument. I disagree that the
State waived this argument. We may affirm a trial court’s ruling on the
admissibility of evidence “on any theory supported by the evidence.” Satterfield
v. State, 33 N.E.3d 344, 352 (Ind. 2015). I conclude, however, that the State
failed to present sufficient evidence at the trial to establish that the search
incident to arrest exception is applicable here. At the time of the search, the
officers had already identified Smith and already learned that his driver’s
license was suspended. A search of the vehicle would not have revealed
evidence that Smith refused to identify himself or drove while suspended. For
these reasons, I concur in result.
1
Under the search incident to arrest exception, “[p]olice may search a vehicle incident to a recent occupant's
arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or
it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S.
332, 351, 129 S. Ct. 1710, 1723 (2009) (emphasis added). The State does not argue that Smith was within
reaching distance of the passenger compartment at the time of the search; rather, the State argues only that it
was reasonable to believe the vehicle contained evidence of the offense of arrest.
Court of Appeals of Indiana | Opinion 18A-CR-3009| August 7, 2019 Page 10 of 10