ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marshelle Dawkins Broadwell Steve Carter
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Andrew A. Kobe
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S04-0410-CR-457
MARVIN TAYLOR,
Appellant (Plaintiff below),
v.
STATE OF INDIANA,
Appellee (Defendants below).
_________________________________
Appeal from the Marion Superior Court, Criminal Division 20, No. 49G20-0108-CF-163624
The Honorable William Young, Judge
The Honorable Michael Jensen, Magistrate
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0310-CR-528
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February 14, 2006
Rucker, Justice.
Defendant Marvin Taylor filed an interlocutory appeal challenging the trial court’s denial
of his motion to suppress cocaine seized as the result of an inventory search of his car.
Concluding the inventory search was impermissible we reverse the judgment of the trial court.
Fact and Procedural History
Shortly after midnight on August 7, 2001, Indianapolis Police Officer Patrick McPherson
observed a car pull into a gated apartment complex. The driver of the car, later identified as
Marvin Taylor, did not use his turn signal. To initiate a traffic stop, Officer McPherson activated
his emergency lights. After making two quick right-hand turns Taylor pulled his car diagonally
against a curb in the complex parking lot. Officer McPherson “jumped out of [his] vehicle” and
was joined shortly thereafter by another policeman, an Officer Stevenson. Tr. at 12. After
obtaining Taylor’s information, Officer McPherson learned through the Bureau of Motor
Vehicles that “[Taylor] was driving while suspended infraction on the learner’s permit.” Tr. at
13. 1 At that point Officer McPherson decided to have Taylor’s car towed away because “the
vehicle was illegally parked[,] he was driving while suspended[, and] [h]e did not reside in the
apartment complex . . . .” Id. In the meantime Officer Stevenson proceeded to conduct a
purported inventory search of the vehicle and discovered two plastic baggies containing what
was later identified as cocaine.
On August 8, 2001, the State charged Taylor with one count of possession of cocaine in
an amount greater than three grams, a Class C felony in violation of Ind. Code § 35-48-4-6(b)(1).
Thereafter, on April 1, 2003, the State filed an amended information adding an additional count
of dealing in cocaine in an amount greater than three grams, a Class A felony in violation of Ind.
Code § 35-48-4-1(b)(1). Prior to trial Taylor filed a motion to suppress the cocaine evidence
discovered during the inventory search of his car. Following an evidentiary hearing, the trial
court denied the motion. Upon Taylor’s request the trial court certified its order for interlocutory
appeal, and the Court of Appeals accepted jurisdiction. Taylor argued the trial court erred in
1
Because he was driving on a learner’s permit Taylor was required to be “accompanied in the vehicle by
an individual who holds a valid operator’s, chauffeur’s, or public passenger chauffeur’s license.” Ind.
Code § 9-24-7-4. Apparently he was not so accompanied. However Taylor was not cited for this
violation.
2
denying his motion because the search of his car violated both the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana Constitution. Suggesting that
Taylor may have waived his Indiana Constitutional claim, the Court of Appeals addressed his
Fourth Amendment claim only. See Taylor v. State, 812 N.E.2d 1051, 1053-54 (Ind. Ct. App.
2002) (“Whether Taylor has preserved any claim under the Indiana Constitution is beside the
point, because in the context of inventory searches, the ultimate standard dictated by the Fourth
Amendment and Article 1, Section 11 is the reasonableness of the police conduct.”). Ultimately
the Court of Appeals affirmed the judgment of the trial court. Having previously granted
transfer, we now reverse the trial court’s judgment.
Discussion
I.
Taylor contends the trial court erred in denying his motion to suppress because the
evidence seized was the fruit of an illegal search. The Fourth Amendment protects persons from
unreasonable search and seizure and this protection has been extended to the states through the
Fourteenth Amendment. U.S. Const. Amend. IV; Berry v. State, 704 N.E.2d 462, 464-65 (Ind.
1998) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961)). The fundamental purpose of the Fourth
Amendment to the United States Constitution is to protect the legitimate expectations of privacy
that citizens possess in their persons, their homes, and their belongings. Ybarra v. Illinois, 444
U.S. 85, 91 (1979). For a search to be reasonable under the Fourth Amendment, a warrant is
required unless an exception to the warrant requirement applies. Berry, 704 N.E.2d at 465. The
State bears the burden of proving that a warrantless search falls within an exception to the
warrant requirement. Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993).
A valid inventory search is a well-recognized exception to the warrant requirement.
South Dakota v. Opperman, 428 U.S. 364, 372 (1976); Fair, 627 N.E.2d at 431. The underlying
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. Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000) (citation
3
omitted). In determining the propriety of an inventory search, the threshold question is whether
the impoundment itself was proper. Woodford v. State, 752 N.E.2d 1278, 1281 (Ind. 2001). An
impoundment is warranted when it is part of “routine administrative caretaking functions” of the
police or when it is authorized by statute. Id. (quoting Opperman, 428 U.S. at 370 n.5). To
prove a valid inventory search under the community caretaking function, the State must
demonstrate the following: (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.” Fair, 627 N.E.2d at 433.
The State makes no claim that impoundment of Taylor’s car was authorized by statute.
Rather the State presses its claim based on the officers’ community caretaking function. In that
regard the State first contends that Officer McPherson was justified in towing Taylor’s car
because it was illegally parked. We initially observe that it is not entirely clear from the record
whether Taylor’s car was in fact parked illegally. We know that when Taylor pulled his vehicle
over he parked “caddy corner” to the curb. Tr. at 12. Apparently vehicles in the parking lot are
typically parked perpendicular to the curb. Tr. at 13. And according to Officer McPherson that
was not the manner in which Taylor parked his car. Rather, the car was parked slightly at an
angle to the curb. Appellant’s App. at 100. But Officer McPherson testified during direct
examination that parking lines directing drivers which direction to park did not exist in the
apartment complex parking area. Tr. at 12. When subsequently questioned by the Court on that
same point, Officer McPherson testified: “[I]f they [parking lines] are [there,] they’re faint at this
point. Two (2) years ago I can’t recall how dark they are but I was in there last night if they are
they are real faint as of this time.” Tr. at 26.
In any event, assuming Taylor’s car was parked illegally, it is not true that every vehicle
parked illegally must be impounded. 2 And that is especially so where the vehicle poses no
2
Ind. Code § 9-21-16-8 authorizes towing of vehicles parked illegally in violation of official signs posted
by the Indiana Department of Transportation on a highway where an engineering investigation has
revealed the need for a restriction. Taylor’s vehicle was not parked on a highway but on private property.
The police department’s towing and impounding procedures specify: “Officers observing a vehicle that is
unattended and in violation of any of the provisions of I.C. [§] 9-21-16 may cause the vehicle to be
4
potential hazard to public safety. 3 Here, Officer McPherson testified that there were relatively
few cars parked in the parking area, Tr. at 15, that the vehicle’s location did not constitute a
public nuisance, Tr. at 25, that the vehicle was on the correct side of the parking lot, Tr. at 20-21,
and that the vehicle was parked in a permissible parking area for non-residents. Tr. at 27. The
record does not establish that Taylor’s vehicle constituted a potential hazard to public safety
simply because it may have been parked illegally. See Manalansan v. State, 415 A.2d 308, 311
(Md. Ct. Spec. App. 1980) (“If [defendant’s car was illegally parked], there was no showing of
why . . . one of the officers could not have moved the automobile, within a few feet and within a
few seconds, into a parking space, locked it and left it . . . . The necessity for impounding the car
was not remotely demonstrated. It is simply not reasonable to tow a car away to avoid moving it
to the curb, if such minimal movement was indeed necessary.”). Under the facts presented here,
this purported reason for impounding Taylor’s car must fail.
The State also argues that police impoundment of Taylor’s vehicle was justified because
Taylor did not live in any apartment within the complex. See, e.g., Johnson v. State, 553 N.E.2d
477 (Ind. 1990) (affirming the validity of an inventory search of a car that was impounded from
the parking lot of an apartment complex at which the defendant did not reside). Two primary
factors are considered in determining whether the conclusion that a parked vehicle constitutes a
hazard is reasonable in light of objective standards of policing. Fair, 627 N.E.2d at 434. First is
the degree to which the property upon which the vehicle is situated is under the control of the
defendant. Id. And second is the length of time the impounding officer perceived that the
impounded car would be unattended. This latter factor “helps assess the reasonableness of the
officer’s conclusion that the vehicle, if left alone, would be exposed to an unacceptable risk of
theft or vandalism.” Id.
impounded (e.g., obstructing traffic, illegal parking, or blocking an intersection).” Appellant’s App. at 95
(Indianapolis Police Department General Order 9.00).
3
We also find it ironic that Taylor would be criticized for the manner in which he stopped his car. Taylor
had no duty to park after the officer activated his emergency lights. Rather, he was obligated to pull over
as quickly as possible. See, e.g., Finney v. State, 786 N.E.2d 764, 766 (Ind. Ct. App. 2003) (defendant
charged and convicted of resisting law enforcement as a Class D felony after failing to pull over in re-
sponse to police officer activating his emergency lights to initiate a traffic stop).
5
First, there is nothing in the record indicating that Taylor’s vehicle was at risk of harm.
Second, the record is silent on whether Taylor was a guest of a resident living in the apartment
complex. This point is particularly significant because Taylor’s car was parked in an area where
a guest would ordinarily park in order to visit a resident. Tr. at 27. And absent evidence that the
owner of the apartment complex, or someone on its behalf, would seek to have a guest’s car
towed from this area, 4 the permissibility of allowing Taylor to leave his car parked at that
location “was in the hands of his acquaintances.” See Fair, 627 N.E.2d at 435. It is true that
Taylor’s vehicle was not located at his own home or upon property over which Taylor had
control. Nonetheless under the facts presented, merely because Taylor was not a resident of the
apartment complex does not support a reasonable belief that the vehicle posed some threat or
harm to the community or that the vehicle itself was imperiled.
The State further contends that police impoundment of Taylor’s vehicle was justified
because Taylor was driving on a suspended license and thus could not be allowed to operate his
car further. At the time Officer McPherson decided to impound Taylor’s car his best information
was that Taylor had committed an infraction. 5 He testified as much: “I learned through the
Bureau of Motor Vehicles, IPD via communication that [Taylor] was driving while suspended
infraction on the learner’s permit.” Tr. at 13. Ind. Code § 34-28-5-3 provides, “[w]henever a
law enforcement officer believes in good faith that a person has committed an infraction or
ordinance violation, the law enforcement officer may detain that person for a time sufficient to:
(1) inform the person of the allegation; (2) obtain the person’s: (A) name, address, and date of
birth; or (B) driver’s license, if in the person’s possession; and (3) allow the person to execute a
notice to appear.” See also Peete v. State, 678 N.E.2d 415, 419 (Ind. Ct. App. 1997) (A brief
detention is permitted when a police officer believes a person has committed an infraction of an
ordinance.).
4
Under Ind. Code §§ 9-22-1-15 to -16, the owner of rental property may have an “abandoned” vehicle
towed from the premises upon 72 hours prior notice.
5
Our colleagues on the Court of Appeals noted that depending upon the surrounding circumstances and
the driver’s status, driving while suspended can be a Class A infraction, a Class A misdemeanor, or a
Class D felony. Taylor, 812 N.E.2d at 1055 (citations omitted). And, as the Court correctly pointed out,
it is not apparent from the record under which statute Taylor was cited. Id. We do not disagree with our
colleagues’ observations. However we are of the view that the relevant inquiry was what Officer
McPherson believed at the time of the impoundment.
6
It is certainly the case that Taylor could not be permitted to move his car. And that
assumes of course that he would have been obligated to do so as discussed above. But the
officers had no authority to arrest Taylor for committing an infraction. 6 Thus, he could and
should have been afforded the opportunity to telephone a responsible friend or relative to retrieve
his car. See Gibson v. State, 733 N.E.2d 945, 957 (Ind. Ct. App. 2000) (reversing denial of
motion to suppress evidence seized as result of an inventory search where police impounded
defendant’s vehicle because he was unable to drive after his arrest on an outstanding warrant for
failing to appear for fishing without a license and noting the vehicle was parked on private
property and the defendant “was not given the opportunity to telephone a relative or a friend to
retrieve the van”).
The fact that Taylor was unable to drive his car because his permit was suspended does
not in this instance support a conclusion that the car itself was imperiled or constituted a
potential hazard which police Officer McPherson reasonably believed he needed to address. The
three factors presented by the police officers in this case, even when taken together, do not show
that the impoundment of Taylor’s vehicle was warranted as a part of routine police
administrative caretaking functions. More specifically we conclude that the State has failed in its
burden of demonstrating that the officers’ belief that Taylor’s vehicle posed some threat or harm
to the community or was itself imperiled was consistent with objective standards of sound
policing. Having reached this conclusion, we need not address whether impoundment of
Taylor’s car was consistent with established departmental routine or regulation.
6
Indiana law permits a law enforcement officer to arrest without a warrant when he has probable cause to
believe the person is committing a misdemeanor in the officer’s presence. It does not permit a
warrantless “arrest,” defined as “the taking of a person into custody, that he may be held to answer for a
crime,” for an infraction. See I.C. § 35-33-1-1(A)(4) (1996) and I.C. § 35-33-1-5 (1983). See also I.C. §
35-28-5-1 (setting forth the procedure for actions taken under this provision and declaring they “shall be
conducted in accordance with the Indiana Rules of Trial Procedure.”).
7
II.
In addition to claiming a violation of his rights under the United States Constitution,
Taylor also asserts a violation of Article I, Section 11 of the Indiana Constitution. 7 Article I,
Section 11 provides, “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search or seizure, shall not be violated . . . .” Automobiles are
among the “effects” protected by Article I, Section 11. Brown v. State, 653 N.E.2d 77, 79 (Ind.
1995). Although Section 11 appears to have been derived from the Fourth Amendment and
shares very similar language, we interpret and apply it independently from Fourth Amendment
jurisprudence. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). The purpose of Article 1,
Section 11 is to protect from unreasonable police activity those areas of life that Hoosiers regard
as private. Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). In determining whether the police
behavior was reasonable under Section 11, both trial and appellate courts must consider each
case on its own facts and construe the constitutional provision liberally so as to guarantee the
rights of people against unreasonable searches and seizures. Brown, 653 N.E.2d at 79.
Generally, a search warrant is a prerequisite to a constitutionally proper search and
seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005). In cases involving a warrantless
search, the State bears the burden of proving an exception to the warrant requirement. Id. We
recognize a valid inventory search as an exception to the Article I, Section 11 warrant
requirement. Thus the State must show that the search was reasonable in light of the totality of
circumstances. Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999). In this case, the factors
leading to our conclusion that impounding Taylor’s car was not warranted by police
administrative caretaking functions support the conclusion that the requirements of the Indiana
Constitution were violated as well. In plain terms, considering all of the facts known to the
police officers at the moment of impoundment, it simply was not reasonable for them to believe
7
The State contends Taylor has waived this claim because “he does not argue that the analysis under [the]
Indiana Constitution is different in this case or that it leads to a result different from the federal
constitution.” Br. of Appellee at 3 n.2. In the argument section of his Brief of Appellant, under the
heading “Requirements for Warrantless Searches,” Taylor devotes one paragraph—consisting of three
sentences—to his federal constitutional claim and a page and a half to his state constitutional claim. Br.
of Appellant at 6-8. In support Taylor relies exclusively on Indiana precedent. Concluding Taylor has
not waived his Indiana Constitutional claim, we now address it.
8
that consistent with objective standards of sound policing, Taylor’s vehicle posed some threat or
harm to the community or the vehicle itself was imperiled.
Conclusion
The State did not carry its burden under either the Fourth Amendment to the United
States Constitution or Article I, Section 11 of the Indiana Constitution. The judgment of the trial
court is therefore reversed and this cause remanded with instructions to grant Taylor’s motion to
suppress.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
9