Black v. State

RILEY, Judge,

dissenting.

I respectfully dissent. In my opinion, the issue is whether an inventory search of an automobile may be conducted pursuant to a proper impoundment of the automobile. Therefore, I believe that Edwards v. State, 762 N.E.2d 128 (Ind.Ct.App.2002), trans. denied, is applicable to the case at bar and distinguishable from Johnson v. State, 766 N.E.2d 426 (Ind.Ct.App.2002), ie. the case the majority relies upon to show probable cause for the warrantless search.

The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. "Under the federal constitution, searches and seizures 'conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Middleton v. State, 714 N.E.2d 1099, 1101 (Ind.1999) (quoting Katz v. United States, 389 U.S. 347, 857, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The burden of proof is on the State to prove that a warrantless search or seizure falls within one of the exceptions. Id.

One delineated exception is the "automobile exception" first recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 548 (1925). Green v. State, 647 N.E.2d 694, 695 (Ind.Ct.App.1995). In Carroll, the United States Supreme Court recognized the practical difficulty inherent in securing warrants to search movable conveyances. Id. However, the Supreme Court stressed that a warrant must be used where it is reasonably practicable. Id. at 694-95 (quoting Carroll, 267 U.S. at 154, 156, 45 S.Ct. at 280).

This court recently discussed the automobile exception established in Carroll. We stated, "[wlhen probable cause exists to believe that a vehicle contains evidence of a crime, a warrantless search of the vehicle does not violate the Fourth Amendment because of the exigent cireumstances arising out of the likely disappearance of the vehicle." Edwards, 762 N.E.2d at 134 (citing California v. Acevedo, 500 U.S. 565, 569, 111 S.Ct. 1982, 114 LEd.2d 619 (1991)). In Edwards, we held that there were no exigent cireumstances because the vehicle had been impounded. Id. at 184-85. On rehearing, we rejected the State's contention that we improperly required a showing of exigent cireumstances when the "automobile exception" contains no such requirement. When the car was impounded, it was no longer "inherently mobile" and likely to disappear and, thus, no longer within the automobile exception. Edwards v. State, 768 N.E.2d 506, 508 (Ind.Ct.App.2002).

If a vehicle is no longer "inherently mobile" and obtaining a search warrant is reasonably practicable, then the automobile exception does not apply. See id. at 508-09. Here, Black's vehicle was impounded as the vehicle in Edwards and the principles of Edwards apply. When the officers performed their warrantless search of Black's vehicle, it was parked in a business parking lot surrounded by police officers. It was not blocking traffic. However, the record indicates that it was blocking one of the three entrances and exits of the business. Nevertheless, the record also reflects that Black's vehicle *1068was located in a normal place for customers dropping off their vehicles for service. At the time the search occurred, Black was detained in handcuffs close to the vehicle because he was driving while his license was suspended. There was neither a shortage of time, nor an emergency situation for the officers to deal with No weapons were discovered at the scene, and there was no threat that the car might disappear and become lost to the police. Because Black's vehicle was not inherently mobile and obtaining a search warrant would have been reasonably practicable under the cireumstances, I find that the automobile exception did not apply to Black's situation. As the State showed no other exigent cireumstances justifying a warrantless search, the subsequent search of Black's vehicle and seizure of evidence therein violated Black's Fourth Amendment rights.

Accordingly, I find that there is insufficient evidence of probative value to support the denial of the motion to suppress. See Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). Therefore, the trial court improperly denied Black's motion to suppress. Thus, I respectfully dissent.