Fair v. State

FAIR, Appellant James

(Defendant Below), Indiana, Appellee

STATE Below). (Plaintiff

No. 49S04-9312-CR-1439

Supreme of Indiana. Court

Dec. PETITION TO TRANSFER

ON SHEPARD, Justice. Chief rules grant transfer to examine the We of automo- applicable to searches to the under the Fourth Amendment biles Concluding that U.S. Constitution. - comply case did not with the search this Amendment, we Fourth reverse. History Facts and Procedural I. Jeffrey Officer Wa- October On Indianapolis Department ger Police Vantage Apart- Point dispatched was complaint Complex response to a ment gun shots had been fired. Wager potential of a sus- dispatcher advised wearing a male a red pect described as black gray pants a cap and with baseball blue arriving Upon kind. at the firearm of some Wager a man complex Officer observed lot, later determined to be defen- parking Fair, description. At who fit this dant James time, placing cylindri- a suspect was object a car. cal into the trunk of Wager pulled into the As Officer lot, sight temporarily lost of Fair. When he contact, Wager the trunk was reestablished closed, standing beside the car. and Fair was him Wager along side Fair and asked pulled away car and hold his hands step from the complied, they seen. Fair could be where Wager performed pat-down a search and shotgun up 20-gauge shells. turned six which encounter, Officer During the course of the Fair a Wager the belief that was formed he Vantage party Point to which patron at a evening. He in the had been called earlier At that Fair was intoxicated. also concluded public for in- juncture arrested Fair this he him, toxication, placed him in handcuffed and squad car. seat of his the back Wager Fair's vehicle then entered Officer His glove compartment. and searched its doing to locate purpose this was stated Fair's papers would confirm rental which the car. After claim that he had leased Swain, appel- Indianapolis, for Andrew W. Wager decided to locating papers, the rental lant. of the vehicle. While search do car, Carter, Gen., Atty. Arthur he found a searching F. the interior of the Pamela Gen., suspected leafy he Perry, Deputy Atty. green India- Thaddeus substance concluding marijuana. After napolis, appellee. generally N.E.2d 181. This means no interior contained other contraband or "property noted," which needed to R. at properly the search must be authorized 1083,Wager decided that he wanted to look in issued warrant. Arkansas v. Sanders, keys from Fair U.S. 61 L.Ed.2d 235 the trunk. He obtained the (1989), Ind., trunk, opened Rabadi v. State and unlocked and where shotgun top clothing. he found a of some principle" N.E.2d 271. It is a "cardinal jurisprudence search seizure charged possession The State Fair with judicial "searches conducted pro outside the misdemeanor, marijuana, a class A Ind.Code cess, prior approval by without judge or (West 1986); § Ann. 35-48-4-11 intox- magistrate, per se unreasonable under ication, misdemeanor, B class Ind.Code Amendment-subject the Fourth only to a (West 1982); § dealing Ann. 7.1-5-1-8 specifically few established and well-delineat shotgun, felony, a sawed-off D a class Arizona, exceptions." Mincey ed 437 U.S. (West § Supp. Ind.Code Ann. 35-47-5-4.1 385, 390, 2408,2412, 98 S.Ct. 57 L.Ed.2d 290 1993). The posses- intoxication and (1978) States, (quoting Katz v. United 389 marijuana dropped. sion of counts were later 347, 357, 507, 514, U.S. 88 19 LEd.2d suppress Prior to trial Fair filed a motion to S.Ct. (1967)); Montague, 55, 576 266 Ind. at 360 shotgun evidence-the seized from the trunk. prosecution N.E.2d at 185. When the seeks trial The court denied his motion after an to introduce evidence that during was seized evidentiary hearing. Fair was later convict- search, a warrantless it bears the burden of shotgun ed of the offense after a bench trial. showing exemption both the need for an from Fair's appeal sole contention on has been requirement the warrant and that its conduct the trial court denying erred in his fell exception. within the bounds of the suppress trial, motion to shotgun. the 'At the Mincey, 390-91, 437 at U.S. 98 at 2412- S.Ct. Wager State conceded that Officer did not 13; (1987), Ind., Robles v. State 510 N.E.2d car, have a warrant to search Fair's but 660. persuaded the trial court to admit the shot- gun theory on the that it had been discovered In Opperman, South Dakota v. 428 pursuant inventory to a valid search. Fair 364, 3092, U.S. 96 S.Ct. 49 L.Ed.2d 1000 claims that the search did not attend a lawful (1976), Supreme Court defined what has inventory and therefore become "inventory exception" known as the was unreasonable in violation of the Fourth it police may when held that conduct a I, Amendment and Article Section lawfully impounded warrantless search of a Indiana Constitution.1 He also claims that if designed pro automobile the search is to faith, the search was made in bad a mere inventory duce an of the vehicle's contents. pretext for a investigation. criminal The ma (1982), Ind., See also Dixon v. State jority Appeals rejected of a divided Court of N.E.2d 1318. police per Because the are arguments these proper concludedthat a forming an caretaking administrative or func inventory search had occurred. Fair v. State tion investigatory rather than a criminal (1993), Ind.App., 615 N.E.2d 489. dis We they automobile, function impound when agree and reverse. the Court policies underly declared that the ing the Fourth Amendment's warrant re

II. Inventory Introduction Searches quirement inapplicable. Opperman, The Fourth Amendment to the Thus, U.S. at 370 n. 96 S.Ct. at 3097n. 5. Constitution, applicable U.S. to the states justification inventory for an search Amendment, under the requires Fourteenth probable "does not rest on cause and ... private property that searches of be reason absence a warrant is immaterial Coolidge able. Hampshire, v. New reasonableness of the search." Illinois Lafayette, U.S. S.Ct. 29 L.Ed.2d 564 103 S.Ct. (1983); Rabadi, 77 L.Ed.2d 65 (1977), Montague v. State 266 Ind. provides separate authority 1. Because Fair no (1988), deemed waived. St. John v. State Ind., - argument the search violated the Indiana 523 N.E.2d 1353. Constitution, I, his Article Section 11 claim is denied, vehicle"), ("Probable impound the cert. not an cause is at 274 N.E.2d 1483, 99 L.Ed.2d 711 108 S.Ct. inventory searches because in such issue they oc Furthermore, in which context cireumstances the non-criminal "where cur."). police authority had no consid show that the inventory search is now vehicle, police or that custodial to the warrant exception a "well-defined ered necessary, care of the vehicle was Lafayette, 462 U.S. requirement." (1991), Annotation, Foulks v. State unlawful." search was Vehicles, Impounded Ind., Inventory Search of 582 N.E.2d quoted in A.L.R.3d State juris As in all Fourth Amendment (La.1976). Jewell, 633, 638 Fair 388 So.2d constitutionality in in the test of prudence, im properly can asks us to hold that The First ventory cases is reasonableness. only authority if to do so is pound a car their has observed that reasonableness Circuit has of a motor vehicle or invoked violation it more a quality which renders protean support argu of his forfeiture statute. constant, concept than a United States ment, has numerous he observes that Indiana (lst 780, 785 Rodriguez-Morales, 929 F.2d authorizing impoundment of motor statutes - -, Cir.1991), U.S. impoundment pursuant veh icles.2 While (1992), such that 116 L.Ed.2d 774 agree clearly proper, we to such statutes is usefully "in order cannot be refined it statutory Appeals that with the Court of judging some detailed formula evolve justifica authority present the sole does not 433, Dombrowski, Cady v. 413 U.S. cases." Fair, recognize, will tion which courts 2523, 2531, 448, 37 LEd.2d 93 S.Ct. 491, impoundment inasmuch as is N.E.2d at determining of In the reasonableness by exigencies not cata warranted sometimes search, all inventory courts must examine loged in state statutes. Op of a case. facts and circumstances 375, 96 S.Ct. at 3100. perman, 428 U.S. only police expected not to are typically encompasses two This examination laws but also to aid enforce the criminal First, the overlapping of circumstances. sets hazards, distress, prevent po in abate those must be estab propriety materializing, per from and tential hazards inventory the need for the lished because variety infinite of other tasks caleu- form an Second, the impoundment. arises from the safety and maintain the of lated to enhance inventory must be evaluated. seope of the Supreme Court has ree- communities. The unreasonable, clearly either is Where policing nature of ognized this multifaceted upheld. In not be borderline search will Dombrowski, 433, and, Cady U.S. cases, however, ultimate character of 2528, 441, 2523, 37 L.Ed.2d 706 93 S.Ct. clearly most revealed when search is often "community caretaking it the labeled necessitousness of the both the is "a catchall for the function This rubric ]." inventorying serupulousness of the and the police that offi range responsibilities wide together. viewed are criminal discharge aside from their cers must Rodrigues-Morales, activities." enforcement Impound III. The Decision Discharging these duties F.2d at 785. automobiles, handling said, ques often involves the threshold As we have pervasive and one of the most constitute im- cases is whether tion Cady, regulated fixtures of modern life. See proper. People Accord poundment itself was Thus, at 2528. S.Ct. Braasch, App.3d Ill.Dec. 122 Ill. Opperman observed "[in the Court N.E.2d 651 see also United safety part and as of what interests Young, Cir. 825 F.2d States 'community caretaking the Court has called 1987) "pre (finding inventory was reasonable right to supposes police functions, frequently that the had the ... automobiles are (au- tunnels, traffic) (West § See, obstructing 9-22-1-5 eg., § Ind.Code Ann. 9-22-1-14 pos- 1992) thorizing impoundment of vehicle found in (authorizing towing of abandoned vehi- person owner when that cles); (authorizing other than of vehi- session § removal 9-21-16-4 possession). right person cannot establish bridges, on cles found unattended causeways, police custody." question, many taken into 428 U.S. at confronted with this When (citation omitted). Supreme courts have seized on the Court's at 3097 statement Colorado Bertine that an Cady In the case the Court found the officer's discretion to must be "ex towing from a rural stretch of road of a according ercised to standard eriteria on rental car disabled in an accident was conso something suspicion the basis of other than community caretaking nant with the function. activity." of evidence of criminal Court, Writing Rehnquist for the Justice de 107 S.Ct. 93 L.Ed.2d 739 impoundment noting fended the that "there (1987). This focus "standard criteria" has suggestion is no in the record that the offi parallel in scope-of-in the more common exercising action in control [the cers' over ventory challenges where is reasonableness by having away car] it towed was unwarrant usually determined whether there was ed either in terms of state law or sound compliance police proce with "standard police procedure." 413 U.S. at 93 S.Ct. Opperman, dures." 428 U.S. at (emphasis supplied). Opperman, at 2531 compliance at 3098-99. Because tends to impounded the vehicle at issue was for multi inventorying indicate was limited to ple parking Cady, violations. As in necessary carry caretaking out the any specific Court felt no need to cite statute function, compliance where exists searches Instead, authorizing towing. such a it enu 374-75, usually upheld. id. at Cf. several merated seenarios illustrative of com By analogy, S.Ct. at 3099-3100. some courts munity caretaking, including presence have held that the reasonableness of an offi damaged disabled or vehicles or vehicles posed cer's conclusion that vehicle a threat ordinances, which violate and con community hinges on whether that authority cluded that "[the to seize conclusion was reached in accordance with imped and remove from the streets vehicles police department regulations. standard ing threatening public safety traffic or beyond challenge." See, e.g., convenienceis 428 265, U.S. People Toohey, v. 438 Mich. 475 (1991). 369, 16, 23, at 96 S.Ct. at N.W.2d 25 note that pas We the "standard criteria" that, From this we conclude as a sage Bertine, however, quoted from relates law, po matter federal constitutional police choosing to discretion befween im may discharge caretaking lice their function vehicle, pounding a locking and it in compel whenever it. cireumstances Accord public parking place, a allowing or a third Ibarra, United States v. 955 F.2d 1408 Bertine, party custody. to take 479 at U.S. (10th Cir.1992) (Opperman permits impound 107 at S.Ct. and 479 U.S. at 379- public safety" ment cars which "threaten (Marshall, J., 107 S.Ct. at 745 dissent statutory even no where authorization ex ing). It does not address an officer's initial ists); State, Riley v. 583 So.2d 1355 decision as to whether the vehicle needed to (Ala.Crim.App.1991)("the police have an in altogether be dealt with at all. It is reason vehicles, authority impound herent to aside expect able to the mechanics of the several statutory authority from based on what is dealing methods available for with vehicles function.") community caretaking called the which constitute hazards to be set out State, (quoting Morton v. 452 So.2d departmental regulations or routine. On the (Ala.Crim.App.1984)); 1365 State v. John cf. hand, son, (Utah 1987) myriad ("[The other cireumstances under 745 P.2d reasonably pos which a vehicle is viewed as justification existence absence of for the ing possibly cataloged a hazard could not impoundment may of an automobile be be deter meaningfully in advance or surrounding mined from the summarized. See cireum- - ("'The stances."). Rodriguez-Morales, 929 F.2d then, at 787 impoundment, An will not police sensibly solely expected cannot to have spe be invalidated because it was not advance, cifically by developed, protocols long authorized statute standard so as the running gamut possible can State demonstrate it was warranted in the entire eventu community caretaking terms of the alities."). function. Smith, (1986); 120 Idaho v. flexibility, it State Notwithstanding this need cf. (1991); Toohey, at 23 475 N.W.2d P.2d impound that when also be said

must law, ("courts directed state specifically second-guess police offi ment is not need judgment professional to tow will re a decision exercise of increases that cer's the risk automobile"). to conduct solely by the desire be motivated of an garding generally 3 investigatory search. case, no effort has made In this the State Seigure LaFave, and Search Wayne R. any Indiana statute au- that to demonstrate 1987) ("[The (2d 7.5(e), ed. § at Wager's impoundment thorized Officer they otherwise impound a car which might question is A much closer Fair's vehicle. purpose of ... for the would not safety dictated whether reasons look for evi opportunity gaining an advent of towed. With the the car be dence."). given problematic potential is This search, had courts have numer- caretaking function is community potential pass on which opportunities to ous detection, investi "totally from divorced satisfy requirement. The needs this threats relating to acquisition of evidence gation, or impli to be communityhave been held of the Cady, criminal statute." of a the violation left his arrest of the driver cated where the According 441, 93 at 2528. S.Ct. public highway, Rodri on a car unattended evaluating police ly, approach sound 785, United 929 F.2d at guez-Morales, accommo impound should both decisions to Velarde, Cir. 903 F.2d 1163 States multiformity of hazards with date 1990); Griffin, F.2d 475 ferreting out United States they deal and succeed must (7th Cir.), pre are a mere impoundments which those where 83 L.Ed.2d other, objectives. improper text for cannot be estab

ownership of the vehicle lished, Madison Young, 825 F.2d considerations, light of these (D.C.1986); States, A.2d 279 United question of prevail on the we hold private property was on the vehicle where impoundment was warranted whether property requested of the the owner function, caretaking community terms State, Ga.App. removal, Fitzgerald (1) that must demonstrate: prosecution 411 S.E.2d threat posed some that the vehicle the belief im community itself or was or harm to the is of a different The instant objective stan was consistent with periled undamaged vehi- have an Before us we sort. Cady, 413 U.S. at policing, dards of sound pri- relatively secure neatly parked in a cle 2531; Opperman, 428 U.S. 93 S.Ct. at cf. had been no facility. There parking vate the 96 at at S.Ct. property, the the owners of complaint from by impound that threat to combat decision in whose unqualified no driver and there was depart keeping with established was in ment left if the officer car would be possession the regulation. In administer routine or mental possession of did not act. The driver's lawful standard, be mindfal ing courts should this Instead, it was in doubt. was not the vehicle not neces does the Fourth Amendment testimony that the vehicle Wager's Officer the least intru sarily police to utilize require because, if left required police attention protect an automo to secure and sive means R. at was, might damaged." "it be where it Bertine, 373-374, 107 U.S. at S.Ct. 479 bile. case, then, typical of a distinct is 112. This Wells, 464 742; v. 539 see also State So.2d in the sole inventory cases which of class aff'd, (Fla.1989), is that the de- justification for then, question, is The 109 L.Ed.2d vehicle, private left unattended fendant's need to there was an absolute not whether arrest, will of a custodial property as a result deci whether dispose of the vehicle but might theft or vandalism exposed to be light of the in to do so was reasonable sion See, e.g., Del nuisance. v. become a United States otherwise applicable standard. See (Tex.Crim.App. State, gado 718 S.W.2d Cir.), Brown, 787 F.2d 1986). diverse spawned 93 L.Ed.2d 80 have cases These holdings3 difficulty which reflect the inher understandings With these judicial any ent in effort to determine when place, we turn ruling now to the here at posed by issue. It is well the threat or to a vehicle is so established Fourth jurisprudence Amendment insignificant overly than that a trial court's cautious officer's simply findings decision to seize it is not reasonable. factual will not be overturned unless See,

clearly eg., erroneous. United States v. (10th Cir.1987). Guglielmo, 834 F.2d 866 Attorney rightly points General The ultimate determination of reasonable out that we do not here write on a clean ness, however, finding is not a factual but a slate. had 'We before us a similar case legal question meriting constitutional inde (1990), Ind., Johnson State 553 N.E.2d Ibarra, pendent consideration. F.2d impounded where defendant's car was 1409; (1989), Light Ind., v. State cf. parking apartment from the of an lot com undertaking N.E.2d 1073. In this consider plex at which he did not reside. The facts ation, we examine the evidence favorable to holding point way of Johnson to the decision, the trial disputes court's with all particular, correct resolution of this case. In ruling, resolved in favor of any as well as think proposition we Johnson stands for the uncontested evidence favorable appel primary that two factors should be consid (1981), Ind., lant. Lance State 425 N.E.2d in determining ered whether the conclusion (1977), Whitt v. State 266 Ind. that vehicles such as Fair's constitute a haz sense, N.E.2d 913. this the standard of light objective ard is reasonable in stan typical sufficiency review differs from the policing. dards of sound The first is the only the evidence case where evidence favor degree property upon which the Light, able to the verdict is considered. vehicle is situated was under the control of N.E.2d at 1076. Johnson, the defendant. See 553 N.E.2d at Clearly, example, 479. there is a differ In the Johnson case no link was established between the situs of the vehicle ence between a driveway vehicle left parent's Johnson, a defendant's home and one left and the defendant. 553 N.E.2d at unloading small lot intended for cargo. air At the time that Krezen, People 427 Mich. ordered, arresting officer knew the de (1986). Second, length N.W.2d likely charged fendant would with multi ple, serious felonies. Id. In the instant impounding perceived time the officer the car case, would be important. helps unattended is It undisputed it is that Fair's car was assess the reasonableness of parked apartment the officer's con complex at an where he vehicle, alone, clusion that the if left would be guest. was a tenant's invited His car was exposed unacceptable parked risk theft or impede between the lines and did vandalism.4 suppression hearing, traffic. At Brown, Compare (impound Appeals 787 F.2d at 932 "by 4. The Court of concluded that rea- present ment reasonable where vehicle could intoxication, son of Fair's arrest for Offi- nuisance if left in business lot "until the Wager right duty cer had a and a to his Johnson, day longer"); next or United States v. Fair, proba- car." 615 N.E.2d at 491. While the (10th Cir.1984) (impoundment 734 F.2d 503 rea length any period ble of of initial incarceration subject sonable where vehicle could be to vandal during period and the location of the car this are lot); lounge parking ism if left in United States v. highly inquiry, agree relevant to our we with (5th Cir.) (im Staller, 616 F.2d 1284, 1289-90 Judge Miller's dissent that the mere fact aof poundment reasonable where vehicle would be magical significance. custodial arrest has no parking "possibly left unattended in mall lot for instance, parked For when a arrestee's car is on time"), denied, period an extended of 449 property, rarely his own would U.S. 869, 101 S.Ct. 66 L.Ed.2d 89 community if ever be warranted in terms of Rice, (Utah 1986) with State v. 717 P.2d 695 caretaking. Johnson, 553 N.E.2d at 479. The (impoundment safely unreasonable where vehicle (1988), Ind., of case Eckstein v. State 526 N.E.2d office); locked in lot behind law Mana 693, on which the Court of State, relies, is Appeals Md.App. lansan v. 415 A.2d 308 inapposite, involving not an automobile a but (Md.Ct.Spec.App.1980) (impoundment unreason bicycle bag. legitimate parking able where auto left at rest in State, spot); Riley (Ala.Crim. v. 583 So.2d 1353 (same). App.1991) of introduction solely by the not met den is that manager testified complex apartment he has that generalized assertion officer's re parked was was Fair in which the area of those with safeguard the vehicles Moreover, duty to a he guests of tenants. for served would We to have even into contact.6 not seek he comes he would whom that indicated of this indulge the reasonableness probably unless area from that car towed non-guest's a pretext indicia of but for the "blocking or "causing a disturbance" it was "inventorying" this record of litter the 72. something."5 R. at or an entrance any de about of evidence the absence his located at Thus, Fair's car was while we remaining partmental against which procedures it home, permissibility own significance. might their evaluate of his ac in the hands was complex at the quaintances. Inventory Seope IV. Wager resolved Officer

When be only that Fair would car he knew Fair's custody of an Even the lawful Indiana public intoxication. charged with dispense not of itself does impounded vehicle (West Supp.1993) § 12-23-15-1 Ann. Code of rea requirement constitutional with the is arrested individual when an specifies that searches con regard to the sonableness "unmanage is not public intoxication Instead, pass constitu thereafter. ducted may damage," the officer "causing able" or muster, con itself must be the search tional individual take the citation and simply issue a police proce pursuant to standard ducted willing to or relative person responsible to a Bertine, 107 S.Ct. at at 479 U.S. dures. reveals This authorization care. provide criteria standardized rule that 743. The released have been Fair would that likelihood precondi a exist as routine must established nominal bond recognizance or on his own designed to inventory search is valid tion to a have then and would very brief time a within pretext inventory not a is ensure Manalan to reclaim his car. able been to discov rummaging in order general "for a 311; san, United States A.2d at cf. Wells, Florida incriminating evidence." er Cir.1989) (10th 718, 716 Kornegay, F.2d 1, 4, 110 S.Ct. 495 U.S. to believe ("[The every reason agents had (1990). perform this In order to L.Ed.2d returning not be defendant] would that [the rationally function, must be procedures lot."), cert. ... anytime soon justify objectives that designed to meet 109L.Ed.2d 110S.Ct. 495 U.S. place, Isom State in the first the search Young, F.2d 60 States United 245, and must (1992), Ind.App., 589 N.E.2d (same). Cir.1987) the officer sufficiently limit the discretion Wells, at at 110 S.Ct. field. in the short, in this record is little there In Galak, 80 N.Y.2d People v. po- constituted Fair's vehicle establish N.E.2d 362 reasonably N.Y.S.2d Wager with which hazard tential regulations conformitywith such making this state- Searches need to deal. felt the Amend Fourth under the reasonable as understood ment, to be do not mean we Opperman, ment. reasonable to it would never saying that Thus, charge pretext to defeat from at neatly parked vehicle an arrestee's tow existence must establish State a com- absence of in the private property the search and that regulations sufficient Rather, it the case is the owner. plaint from conformity with them. conducted these, bur- issue the State's as on facts such Indianapolis Po- 9-22-1-15, (West explain what that-what §§ Ann. 5. Under Ind.Code regarding policy Department is 1992), lice have rental may the owner of property but must therefrom vehicle towed "abandoned" searches. give 72 hours notice. first someone with we come into contact O.K. If A. guard are to safe uh-we a vehicle who has subject testimony Wager's only on the 6. Officer should We're not allowed-we vehicle. that vehicle was necessity impounding Fair's might be dam- anywhere it where leave it not as follows: inpound they request we aged. therefore So Indianapolis Police De- Q. to the You referred vehicle.... [sic] those regarding inventory the trunk search partment R. at 111-12. you briefly portions Can of a car. other noted earlier that in We border R. at 112. testimony There was no whatso impounded line cases pre where the vehicle provided particulars ever of the only marginal sented and, therefore, threat the ultimate policy possible it is not for character of the transaction is often revealed this Court to determine whether the seem by in the manner which the search was con ingly suspicious cireumstances which attend presents ducted. The record of this search ed the search in irregular. were fact With pretext ques several indicia of which raise a more, then, out canwe not conclude that the good tion about it whether was conducted in police department's inventory search was faith. The search was conducted not at the reasonable.8 Boyd, See Ex Parte 542 So.2d lot but at the scene of the (Ala.), Badgett, crime. See State v. 200 Conn. (1989); Galak, L.Ed.2d 172 Jewell, 512 A.2d 160 State v. 365-66, Rabadi, 610 N.E.2d at cf. (La.1976). inventory So.2d 633 was con ("The N.E.2d at 275 cireumstances surround by responsible ducted an officer for criminal ing the intrusion must also indicate that the investigations custody and not im part search was of established and routine Rabadi, pounded property. See 541 N.E.2d department procedures."). at 275. There is no evidence that formal Jewell, inventory carry The State completed. sheets were did not its See burden of es- 639; Galak, tablishing 38 So.2d at 610 N.E.2d at the search of Fair's car was 3 apparently 365. The officer did not reasonable pretext. make and not a mere We re- affects, personal note of Fair's see R. at 116 verse the conviction and direct the trial court & only State's Exhibit but instead focused grant suppress. Fair's motion to The case Badgett, is the contraband. See possible remanded for 512 A.2d at retrial. 171; Manalansan, Finally, 415 A.2d at 311.

it is even clear from the record that the DeBRULER, DICKSON and actually impounded. car any ever was While SULLIVAN, JJ., concur. probably one of these facts would not render constitutionally defective, the search collec GIVAN, J., separate opinion. dissents with tively they very harmful to the State's position.7 GIVAN, Justice, diésenting. The fatal defect this search is that provisions respectfully I Indianapolis majority dissent from Depart Police inventory policy opinion ment's are not this case. The established in facts set out in the by majority opinion sufficient detail probable the record. Officer Wa indicate cause for ger only testified that "we conduct an inventory inven the officer to make an search of tory search of the car to see what kind of the vehicle. The officer had been called to anything items are it. If there's Vantage valuable Apartment complex Point in re- might placed property need to be sponse complaint to a that shots had been being room or otherwise noted as in the car." fired. very so issue here is

7. the existence of a Fair makes much the fact that, his own by testimony, Wager expected gun Officer to find a caretaking motive. inventory when he resolved to the vehicle. An suspicion may present, officer's however, that evidence developed 8. The need for a better record is all search, automatically is not fatal to a the more real in this case where the evidence at Porter, United States v. 859 F.2d 83 Cir. trunk,. issue was located in a locked The reason 1988), long so that as as the is extending ableness of search to a pursuant community caretaking function point locked trunk has been a of some conten subterfuge investigation, and is not a mere generally tion, see Prober, State v. 98 Wis.2d 345, investigatory caretaking the coexistence of (listing competing N.W.2d ap permissible. Rodriguez-Morales, motives is proaches problem), propriety to this and the Moreover, F.2d at 787. the reasonable belief doing appears so now to turn on whether dangerous weapon may, that a vehicle holds a practice regulated itself, policy. is some articulated actually impoundment. Cady, warrant See Bertine, 479 U.S. at 375, 107 S.Ct. at 93 S.Ct. at It not, cf. Wager's however, Hathman, Officer State v. that such a 65 Ohio St.3d 604 N.E.2d testimony impound, belief motivated his decision to R. at arrived, appellant observed he he When BARAJAS, Appellant, Layton Cipriano object in the trunk cylindrical

placing a in a appellant approached car. He shotgun 20-gauge found six search pat-down Indiana, Appellee. STATE appellant He also shells determined him informed Appellant was intoxicated. No. 79S00-9303-CR-324. automobile. was a rental automobile that the Indiana. Supreme Court of this, officer looked verify In order for the of the car compartment glove 10, 1994. Jan. an inven- then conducted papers. He rental of the automobile. tory search being for the officer reason of the view location, appellant his observation of the car object in the trunk

placing appellant's shotgun discovery shells

his appel- him reason to believe

person gave firing had been person who

lant was course, time, officer, of At that

shots. firing of the the effect know what could not alone This situation shots had been.

of those inventory search to conduct

was sufficient cases cited authority of the several

under majority opinion.

in the appellant

Further, discovery that upon the officer proper for the it was intoxicated

was Although custody. into appellant

to take private parked in a properly was

automobile lot, appellant. the home of it was not the car officer appellant told

When automobile, the officer had a rental

was protect the owner's steps to

duty to take

property. cited several cases again, under the

Here ample majority opinion, there

in the

reason, fact, duty police officer rights in the automobile. owner's

protect grounds substantial there were two I believe inventory search of justify an

upon which

this automobile. Ap- majority opinion of the Court 489, is a cor- N.E.2d reported at 615

peals, situation. analysis of this

rect deny in this case.

I transfer would

Case Details

Case Name: Fair v. State

Court Name: Indiana Supreme Court

Date Published: Dec 30, 1993

Citation: 627 N.E.2d 427

Docket Number: 49S04-9312-CR-1439

Court Abbreviation: Ind.