Abran v. State

825 N.E.2d 384

Lyndon P. ABRAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 63A01-0406-CR-231.

Court of Appeals of Indiana.

March 16, 2005.

Publication Ordered April 12, 2005.

Rehearing Denied May 17, 2005.

Robert R. Faulkner, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

CRONE, Judge.

Case Summary

Lyndon P. Abran appeals his convictions and sentence for possession with intent to deliver methamphetamine in a quantity exceeding three grams as a class A felony, possession of methamphetamine in a quantity exceeding three grams as a class C felony, possession of methamphetamine and a firearm as a class C felony, resisting law enforcement as a class D felony, possession of paraphernalia as a class A misdemeanor, reckless driving as a class B misdemeanor, and unlawful use of a police radio as a class B misdemeanor. We affirm.

Issues

Abran presents three issues for our review, which we restate as follows:

I. Whether the trial court abused its discretion by admitting evidence police seized during a search of his vehicle;

II. Whether the State sufficiently established venue in Pike County; and

III. Whether the trial court violated his Sixth Amendment rights by ordering an enhanced sentence.

Facts and Procedural History

On September 6, 2003, Indiana Department of Natural Resources ("IDNR") Conservation Officer Dwayne Englert saw a brown Ford pickup truck at an intersection in Gibson County and recognized the driver as Abran. Aware that Abran had an outstanding arrest warrant, Officer Englert followed the truck, noted the license plate number, and turned on his emergency lights to signal Abran to pull over. Abran did not stop, and a chase ensued. Abran led Officer Englert into Pike County, where eventually his vehicle slowed and stopped along the side of County Road 400 West. Abran then exited his truck and ran away from Officer Englert. He submitted to an arrest only when threatened with chemical mace. During the arrest, Abran told Officer Englert that he had a knife in his pocket and a shotgun in his truck. When he searched Abran, Officer Englert also found $3,000 in cash, a vial containing three chunks of a chalky-white substance, and a small clear bag containing an off-white powder. Later testing indicated that the vial and bag contained methamphetamine.

Officer Englert decided to impound Abran's truck because there was no one on the scene to drive it away. According to the written standard operating procedure of the IDNR, an officer must perform an inventory search when a vehicle is impounded. St. Exh. 1, p. 1. It is the IDNR's unwritten standard operating procedure to open all unlocked containers found during an inventory search. Tr. at 248. As Officer Englert approached the truck, he overheard a police scanner and noticed several suspicious items in the truck bed, including a coffee grinder wired into the truck battery and containing white residue, a soda bottle with clear plastic tubing protruding from the lid, a glass jar with plastic tubing protruding from the lid, a cup with tubing protruding from the lid, several additional pieces of clear plastic tubing, a metal pipe capped on each end with metal tubing and a valve, gallon-sized glass jars, and two empty fuel cans. When Officer Englert saw these items, he recognized them as items often used in the manufacture of methamphetamine. While searching inside the passenger compartment of the truck, Officer Englert found an unlocked wooden box on the front seat. He opened it and discovered, inter alia, five glass pipes, a plastic bag containing brown powder, a plastic bag containing white powder, coffee filters with powder residue, and Vector gram scales. He recorded many of these items on the inventory search form along with several tools, camping gear, clothing, and a spare tire that he found in the truck.

A jury found Abran guilty as charged. The trial court, noting several aggravating circumstances, ordered the maximum sentence for each count: fifty years in prison for possession of methamphetamine in excess of three grams with intent to deliver,¹ eight years for possession of methamphetamine in excess of three grams,² eight years for possession of methamphetamine while in possession of a firearm,³ three years for resisting law enforcement,⁴ one year for possession of paraphernalia,⁵ 180 days for reckless driving,⁶ and 180 days for unlawful use of a police radio.⁷ The trial court merged the class C felony possession convictions and ordered that the remaining terms run concurrently. Abran now appeals.

Discussion and Decision

I. Admissibility of Evidence

Abran argues that the evidence seized during Officer Englert's search of his truck is inadmissible because the inventory search was a pretext for an unlawful warrantless search for contraband. The State argues that Abran waived review of this issue because the basis of his objection at trial differs from the basis of his argument on appeal. In his motion to suppress and at trial, Abran argued that only the specific items Officer Englert found inside the wooden box were inadmissible because the act of opening closed containers during an inventory search was not required by IDNR's written standard of procedure. In contrast, Abran argues on appeal that all of the evidence seized from his truck was inadmissible because the State failed to prove that the inventory search was lawful under the Fourth Amendment. A defendant may not argue one ground for objection at trial and then raise new grounds on appeal. Gill v. State, 730 N.E.2d 709, 711 (Ind.2000). Therefore, Abran did indeed waive review of the trial court's decision to admit the evidence seized from his truck. Notwithstanding this waiver, we address the issue below.

Under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, the search was lawful and thus the evidence was admissible.⁸ Our standard of review is well-established.

A trial court has broad discretion in ruling on the admissibility of evidence. Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court.

Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003) (citations omitted).

The Fourth Amendment to the U.S. Constitution generally requires that a search of private property must be both reasonable and pursuant to a properly issued search warrant. See Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Fair v. State, 627 N.E.2d 427, 430 (Ind.1993). Warrantless searches are per se unreasonable, subject only to a few well-delineated exceptions. Arkansas, 442 U.S. at 760, 99 S.Ct. 2586; Fair, 627 N.E.2d at 430. The "inventory exception" allows police to conduct a warrantless search of a lawfully impounded automobile if the search is designed to produce an inventory of the vehicle's contents. South Dakota v. Opperman, 428 U.S. 364, 375-376, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Fair, 627 N.E.2d at 430. After arresting Abran, Officer Englert decided to impound the vehicle and conduct an inventory search. In determining the propriety of an inventory search under the Fourth Amendment, the threshold question is whether the impoundment itself was proper. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.2002).⁹ To prevail on the question of whether an impoundment was warranted as part of the police department's community caretaking function, the State must show: (1) that 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) that the decision to combat that threat by impoundment was in keeping with established department routine or regulation. Fair v. State, 627 N.E.2d at 433. The question is not whether there was an absolute need to remove the vehicle but whether the decision to do so was reasonable in light of the applicable standard. Id.

Here, Abran's truck slowly came to a stop along a two-lane gravel road, and Officer Englert believed that the stop was possibly caused by mechanical problems. Officer Englert testified that he was required to impound Abran's truck because there was no one else on the scene who could drive it away. Tr. at 245. Clearly, the truck, left abandoned on the side of the road with many items lying in the open bed, would be subject to vandalism or theft. Thus we find that Officer Englert's decision to impound the truck to protect Abran's property was reasonable. His belief that the vehicle and its contents would be at risk if left by the side of the road was consistent with objective standards of sound policing, and it was the established routine of the IDNR to impound a vehicle upon arrest of the driver, when no one else was present to drive the vehicle away.

Having decided that the impoundment of Abran's truck was lawful, we must now address the issue of the reasonableness of the search conducted thereafter. "[T]o pass constitutional muster, the search itself must be conducted pursuant to standard police procedures." Fair, 627 N.E.2d at 435. The procedures must be rationally designed to meet the objectives that justify the search in the first place and must sufficiently limit the discretion of the officer in the field. Id. To defeat a charge of pretext, the State must establish the existence of sufficient regulations and that the search at issue was conducted in conformity with them. Id.

In this case, the IDNR's written standard of procedure indicates that upon impoundment, the officer must accomplish a complete vehicle inventory. St. Exh. 1, p. 1. The evidence shows that Officer Englert followed standard procedure in his search of...