*1 genuine issues are no that there conclude enti- Third was and Fifth material fact a matter summary judgment as
tled to not err court did Thus, the trial law. summary for motion Fifth Third's granting Company's Title denying judgment Seq, eg., summary judgment. motion id. reasons, affirm the we foregoing
For the summary judgment grant of trial court's of Title Third, trial court's denial Fifth judgment, summary motion for Company's Compa- of Title trial court's denial and the to correct error. ny's motion Affirmed. VAIDIK, JJ., concur.
MATHIAS MYERS, Appellant-Defendant, P. John Indiana, Appellee-Plaintiff. STATE 72A01-0306-CR-217. No. Appeals of Indiana. Court of April20,2004. 3, 2004. June Transfer Granted *2 Lantz, Ryan Redmon,
Thomas J. W. Pardieck, Montgomery, LLP, Elsner & Seymour, IN, Attorneys for Appellant. Carter, Steve Attorney General of Indiana, Lafuse, Christopher L. Deputy General, IN, Attorney Indianapolis, Attor- neys Appellee.
OPINION
BROOK, Judge. Senior Summary Case Appellant-defendant Myers ap- John P. peals from the denial of his motion to suppress a handgun during seized a war- rantless of his vehicle. affirm. We
Issue combine and restate the three issues
We Myers presents as whether the warrant less search of his vehicle was unreasonable under the Fourth Amendment to the Unit ed States Constitution.1 contends, Myers also agree, Myers asserts that the search was un- we I, reasonable under Article Section 11 waived this claim because he has failed to analysis supporting independent offer an Indiana Constitution. recites a stan- dard of review for state constitutional claims standard under the state constitution. solely but juris- relies on Fourth Amendment (Ind. Abel v. 278 n. 1 2002). prudence support his assertion. The State affirmation, or History2 supported Oath and Procedural Facts describing place particularly author- Board County School The Scott searched, things persons or be to conduct dogs the use ized to be seized. on school for narcotics sweeps general *3 12, 2002, police protects against December The Fourth Amendment On property. High School at Austin seizures. officials searches notified unreasonable sweep a conducting be they would (Ind. that v. Johnson locked the officials morning. Generally, that School a trans. demied. Ct.App.2002), safety classrooms in their a required students to conduct warrant is search to officers arrived patrol K-9 purposes. may we ad Id. Before lawful search. lockers and ve- of student sweep a conduct that the warrant- Myers's contention dress the scent dog detected If one hicles. unreasonable Jeep of his less search dog would be narcotics, a second then Amendment, must Fourth we under the If the second that location. brought to for assess proper the standard determine narcotics, a then the scent of dog detected pro the of the search and ing legality locker or search the would school official sweep. suspicionless canine priety of vehicle. "Ordinarily, one a search-even scent of dogs twice detected Two carried out with may permissibly that be Jeep red Chero- upon sniffing a nareotiecs upon 'prob based out a warrant-must be The school parking kee in the school of the lot. to believe that violation able cause' records linked plate license system's T.L.O., Jersey New law has occurred." to summoned Myers. Myers was Jeep to 469 U.S. principal The assistant parking lot. (1985). "Probable cause L.Ed.2d 720 Jeep belonged to confirmed and cireum- exists where the facts unlock the door. him to Myers and asked knowledge of the officer stances within the principal complied. The assistant Myers search, reasonably making the based a loaded Jeep and found searched the information, are sufficient to trustworthy driver's seat. handgun under the caution in person of reasonable posses- charged Myers with
The been or is State that an offense has the belief property, Hawkins, a firearm on school sion of being State committed." § Ind.Code 35-47-9- felony. D (Ind.Ct.App.2002), Class trans. N.E.2d . handgun suppress moved denied his search of during the warrantless seized 7.L.O., Supreme the United States 15, 2003, the trial court May Jeep. On legality that the of the search held Court This suppress. motion to denied by conducted school officials of a student interlocutory appeal ensued. authority alone and on their own acting and Decision Discussion proba depend on the existence does " the 'action only but on whether ble to the Fourth Amendment The " and whether provides, justified inception' at its United States Constitution reasonably related search "'was to be secure right people of the justified which seope to the circumstances houses, and ef- papers, persons, their place."" in the first the interference fects, searches against unreasonable T.L.O., violated, seizures, and no not be shall issue, omitted). (citations spe shall but The T.L.O. court
Warrants hereby argument oral motion for denied. cifically question reserved the "of the ap Jeep was detained for Fourth Amendment propriate assessing standard for the legali purposes during the sweep; canine as ty of searches conducted school officials such, reasonable suspicion was pre- not a conjunction with or at the behest of law requisite for the sweep. agencies[.]" enforcement Id. at n. 7. We now address the merits of might argue One that question is Myers's contention that the warrantless presented by case, the facts of this but we search of his Jeep was unreasonable under need not decide it because the more strin the Fourth Amendment and that the trial gent standard of probable cause was met court erred denying his motion to sup here. It is well settled a trained dog's press handgun seized aas result of the alert to the scent of narcotics gives rise to *4 search. We review denial of motions to probable cause to search a vehicle. See suppress as a matter of sufficiency, consid State, (Ind. 881, Cannon v. 722 N.E.2d 884 ering the evidence favorable to the trial denied; Ct.App.2000), trans. Kenner v. court's ruling and any uncontradicted evi State, 703 N.E.2d 1125 (Ind.Ct.App. dence to contrary to determine wheth 1999), Here, trans. denied. two trained er there is sufficient support evidence to dogs twice alerted to the seent of narcotics the ruling. v. Griffith after sniffing Myers's Jeep, thereby pro (Ind.2003) 839 (addressing validity of
viding ample probable cause to search the
arrest).
warrantless
vehicle.3
Nevertheless, Myers relies on Can
"Searches conducted without a
warrant
per
are
se
subject
unreasonable
non and Kenner
to assert
that canine
a few well
exceptions.
delineated
sweeps may not be conducted absent rea
State bears the burden of establishing
sonable
suspicion of
activity.
criminal
We
a warrantless search
falls within
exeep
an
disagree.
Those cases state that
reason
tion to the warrant
suspicion
requirement.
able
One ex
activity
eriminal
must
ception to the
requirement
exist
before
may
is the
detain a vehicle to
Johnson,
automobile
Cannon,
exception."
conduct a
sweep.
canine
See
766
722
("Detention
(citations
N.E.2d at
884
personal
omitted).
N.E.2d
432
In
property
for such a
sniff test
prohib
Pennsylvania
Labron,
is not
v.
518
U.S.
116
ited if
(1996),
law
135
enforcement
L.Ed.2d 1031
authorities have
suspicion
reasonable
United States Supreme
to believe
proper
Court noted that
the "first
establishing
ty
cases
narcotics.");
the automobile
contains
Kenner,
703
exeeption
("Also,
the Fourth
Amendment's war
N.E.2d at 1125
Fourth
Amend
ment
prohibit
does not
law
rant requirement
enforcement
were based on the auto
authorities from detaining personal prop
'ready
mobile's
mobility, an exigency suffi
erty for a
sniff test
a trained
cient
narcotics
to excuse failure to obtain a search
dog
detection
if there is
suspi
reasonable
warrant onee
cause to conduct
cion to believe
property
contains nar
search is clear."
Id. at
cotics."). Myers does not assert
2485.4 The
stated,
Labron court further
that his
3.
It is also well settled
testing by
that "smell
acterizes
a canine sniff as a "search."
dog
trained
is not a search within the
18, 20, 22,
Appellant's
mean-
Br. at
ing
Kenner,
of the Fourth Amendment."
703
Ross,
In his dissent
in United States v.
456
N.E.2d at 1125.
acknowledges this
U.S.
102 S.Ct
354 ") (empha actually obtained." not been justi further provide cases
"More recent Labron, expecta U.S. at reduced see also Dyson); the individual's fication: sis ("If automobile, readily owing to a car is in an tion (citing Cali to believe cause exists regulation." pervasive mobile its 386, 390-93, 105 contraband, Carney, U.S. Fourth Amend it contains fornia (1985)). In L.Ed.2d to search permits ment thus explained, Carney, the Court more."). Michigan without Thomas, on the being used is a vehicle When capable of if it is
highways, or
(1982),
explained
the Court
L.Ed.2d
in a
stationary
and is found
such a
use
to conduct
justification
such
that "the
for residential
used
regularly
place
onee
not vanish
does
warrantless
or otherwise-the
purposes-temporary
immobilized,
it
nor does
has been
the car
excep-
for the vehicle
justifications
two
reviewing court's assess
depend upon
First,
play.
come into
tion
particular
in each
likelihood
of the
ment
turn of
by the
obviously readily mobile
been driven
have
the car would
case that
actually moving.
if not
key,
ignition
have been
would
that its contents
away, or
expectation
Second,
reduced
there is a
required
with,
period
during
tampered
*5
a
use as
stemming from its
privacy
of
Id. at
a warrant."
to obtain
police
for the
range
a
subject to
vehicle
licensed motor
(footnote omitted);
see
261,
3079
102 S.Ct.
to a
inapplicable
regulation
of
428 U.S.
Opperman,
Dakota v.
also South
circum-
in these
dwelling. At least
fixed
3092,
L.Ed.2d 1000
364, 367,
49
96 S.Ct.
interests
stances,
overriding societal
("[TThe
mobility of automo
inherent
(1976)
justify an
law enforcement
in effective
exigen
of such
circumstances
creates
biles
and
the vehicle
before
immediate search
necessity, rigorous
that,
practical
as a
cy
unavailable.
occupants
its
become
requirement is
of the warrant
enforcement
392-93, 105
2066
at
S.Ct.
Carney, 471 U.S.
upheld
has also
But the Court
impossible.
omitted).
(footnote
immediate
no
searches where
warrantless
emphasized
Supreme Court
car would
that the
presented
was
danger
sepa
no
exception has
automobile
that the
(citing,
jurisdiction.")
from
be removed
Maryland
requirement. See
exigency
rate
alia,
Maroney, 399 U.S.
v.
inter
Chambers
2013,
465, 467, 119 S.Ct.
Dyson, 527 U.S.
v.
1975,
419
51-52,
26 L.Ed.2d
42,
90 S.Ct.
(1999) ("We made this
442
144 L.Ed.2d
386 U.S.
(1970),
California,
v.
Cooper
Ross, 456
v.
U.S.
in
States
clear
United
(1967)).5
L.Ed.2d 730
17
87 S.Ct.
572
798, 809,
72 L.Ed.2d
102 S.Ct.
probable
had
agents
Carney,
In
federal
in
(1982),
that
cases
we said
...
when
that
the defendant
to believe
cause
to search
cause
there was
where
parked
home
marijuana in a motor
selling
if
not unreasonable
'a search is
a vehicle
The defen
Diego lot.
San
a downtown
justify the issu
facts that would
based
response
motor home
exited the
warrant,
dant
though a warrant
even
ance of
misnomer,
(2003),
panel of this
something
which a different
bility'
rationale
nied
of the handcuffed
ordinarily
that the search
can remove
court held
since the
the vehicle on
because
occupants and secure
was unreasonable
appellant's
car's
(Marshall,
inherently
spot."
Id. at
mobile
"was not
omitted).
J.,
(citation
dissenting)
been
warrant would have
obtaining a search
circum-
under
reasonably practicable
unper-
precedents, we are
light
In
of these
at 1211.
Id.
stances[.]"
on Scott
by Myers's reliance
suaded
de-
(Ind.Ct.App.2002),
trans.
N.E.2d 1207
door,
at his
whereupon
recognized
knock
one of the was first
in Carroll v. United
agents
States,
entered the
assembled
vehicle and
267 U.S.
69 L.Ed.
marijuana
(1925).
parapher
observed
and related
Carroll,
held,
In
the Court
nalia. The
held that
Court
the warrant-
true
if
[T]he
rule is that
the search and
less search was reasonable under
seizure without a warrant are made
Fourth
Carney,
Amendment.
at
U.S.
is,
upon a
394-95,
Here,
we have
belief, reasonably arising out of cireum-
determined that
cause existed to
officer,
stances
seizing
known to the
Jeep for contraband. The
an automobile or other vehicle contains
Jeep
by
turn
mobile
of an
subject
that which
law is
to seizure
and,
ignition key,
high
as a
school student
destruction,
the search and seizure
parked
who
his vehicle on
property,
school
are valid.
Myers
expectation
had an even lesser
Id. at
Amendment public are different in Court clarified when securing of a elsewhere"); § schools than Ind.Code 85- reasonably is not practicable. 47-9-2 (outlawing possession of a firearm stated, The Court on school property). The fact that *6 was surrounded school and law enforce [Alssuming probable the existence of ment officials and therefore unlikely was cause, automobiles and other vehicles Jeep away drive the is irrelevant in may be searched without warrants determining the reasonableness of the practicable "where it is not to secure a Thomas, search. See 458 U.S. at warrant, because the vehicle can be 3079; Opperman, 428 U.S. at quickly locality ju- moved out of the or circumstances, S.Ct. 3092. Under these in risdiction which the warrant must be we conclude that the warrantless search of sought."
Myers's Jeep was reasonable under the
Id. at 764 n.
quoting
Fourth Amendment and that
the trial Carroll,
(em
Affirmed. police the to secure a warrant. There fore, a warrantless of a search vehicle SULLIVAN, J., concurs. proper only cause is where ROBB, readily the vehicle is mobile. Judge, opinion. dissents with I respectfully majori- dissent from the ready The mobility Court reiterated its ty's case, conclusion that the warrantless requirement search In Chambers of vehicle did not violate the the Court held a warrantless search of a Fourth Amendment if because fell within vehicle proper is "where there is exception the automobile to the warrant cause to stopped search an automobile requirement. movable, exception The automobile highway; the the car is occu- the but was highway a stopped on was not alerted, car's contents the and are
pants
occupants
with no
at a residence
parked
if a warrant
again
found
may never be
capable of
at
90 S.Ct.
the vehicle
must be obtained."
inside or near
igni
of an
away by
the turn
being driven
added).
further
The Court
(emphasis
applies
has never
exception
Supreme Court
key). The
the automobile
tion
held
vehicle, and
mobility requirement
a
ready
seize
the
the
when
removed
first
without
the vehicle
exception.
to search
right
the
the automobile
from
the vehi-
disappear once
not
does
today
essence,
decision
majority's
the
In
i.e.,
are
immobilized;
occupants
the
cle is
any
at
to be searched
any
allows
to the
is taken
the car
arrested and
police have
long as the
time as
Addi-
Id. at
station.
con
contains
the vehicle
cause to believe
proba-
both
noted that
tionally, the Court
However,
ready
ignores
this
traband.
re-
target" are
"fleeting
and a
ble cause
ex
the automobile
requirement of
mobility
51, 90
Id. at
justify
search.
quired
recognized
has
Supreme
Court
ception
added). See also
(emphasis
S.Ct. 1975
majority
holding in Carroll.
its
since
Acevedo, 500 U.S.
California
if a
even
implies
Carney
discusses
(1991)
114 L.Ed.2d
mobile, according to
vehicle is
that "the
holding
(reiterating Chambers's
for the vehicle
justification
Carney another
towas
exigent circumstances
of
existence
a reduced ex
play:
into
exception comes
the automobile
at the time
determined
be
Supreme
privacy.
of
While
pectation
seiged."
added)).
(emphasis
expecta
a reduced
recognized
Court
where
Thus,
of the cases
in each
justification for
a second
as
tion
automobile ex
applied
Supreme Court
the Court has
exception,
the automobile
upheld a warrantless
ception and
ve
that the
requirement
not removed
stopped
vehicle,
police first
fact, the
Court
readily mobile.
hicle be
occupant
either while
seized the vehicle
ready mobility of
Carney
discussed
or
highway,
on a
operating
upholding
home
Carney's motor
or
inside the vehicle
occupant was
while an
Carney, 471 U.S.
search.
warrantless
readily capable
it and the vehicle
near
("Like
the automo
occupant. See
away by the
being
driven
Carroll,
[Carney's] motor home was
bile
*7
2013;
466-67, 119 S.Ct.
at
527 U.S.
Dyson,
search
prompt
Absent the
readily mobile.
2485;
Labron,
939-40, 116 S.Ct.
518 U.S. at
seizure,
readily have been
it could
2066;
388-93, 105 S.Ct.
Carney, 471 U.S. at
police.").
of the
beyond the reach
moved
Thomas,
102
3079
at
458 U.S.
Labron,
at
518 U.S.
also
See
("[WJlhen
have
police officers
exception
automobile
(stating recent
2485
inside
is contraband
there
cause to believe
pri
of
expectation
provided reduced
cases
the
stopped on
has been
an automobile that
(not alternative) justifica
vacy
aas further
warrant,
road,
conduct a
may
the officers
continued to
exception but
for the
tion
(emphasis
...."
less search of
requirement
as a
ready mobility
recognize
White,
67, 67-
added));
423 U.S.
Texas
exception applied).
before
(1975)
209
46 L.Ed.2d
alone
expectation
of
If a reduced
Chambers,
51-
curiam);
U.S. at
(per
ex-
justify the automobile
was sufficient
1975; Carroll,
at
267 U.S.
52, 90 S.Ct.
registered
licensed or
any vehicle
ception,
Hampshire,
New
Coolidge v.
Cf.
cause
searched
could be
443, 478, 91 S.Ct.
3 U.S.
40
Supreme Court
The United States
alone.
(1971)
(holding warrantless
L.Ed.2d
the auto-
rejected the notion that
explicitly
car
where
improper
was
search of vehicle
ing
to all
in
exception applies
sweep
parking
mobile
vehicles.
the canine
lot.
Additionally,
police
'automobile' is not a talisman in
both
"The word
officers and
Myers's
school officials surrounded
presence
whose
the Fourth Amendment
dog
after the
alerted to
away
disappears." Coolidge,
presence
of
fades
Therefore,
at
narcotics
his vehicle.
403 U.S.
Myers's
readily
vehicle was neither
mobile
agree
If we were to
...
that seizures
nor capable
being
away.
of
driven
See
are likewise
and searches
automobiles
State,
Scott v.
775 N.E.2d
1210-11
per
given probable
se reasonable
(Ind.Ct.App.2002), trans. denied (holding
any
or
logic
then
the same
search
exeeption
automobile
did not apply to war-
seizure could be carried out without a
vehicle where vehicle
warrant,
simply
and we would
have read
rantless
readily
not
was
mobile because the vehicle
the Fourth Amendment out of the Con-
lot,
legally parked
parking
was
occu
stitution.
pants of vehicle were
on a
seated
bench
at
was not on the while vehicle, driving his nor was he inside or near his vehicle when it was seized. Even though Myers possessed key to his vehicle, he was locked in a classroom dur