Carter v. State

223 N.E.3d 246

Anthony Eugene CARTER, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 23A-CR-394

Court of Appeals of Indiana.

Filed October 25, 2023

Publication Ordered November 30, 2023

Appeal from the Marion Superior Court, The Honorable Mark Stoner, Judge, The Honorable Andrew Borland, Magistrate, Trial Court Cause No. 49D32-2106-F2-18965

Attorney for Appellant: Brian A. Karie, Ball Eggleston, PC, Lafayette, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Anthony Eugene Carter (Carter), appeals his conviction for dealing in cocaine, a Level 2 felony, Ind. Code § 35-48-4-1(a)(2).

[2] We affirm.

ISSUE

[3] Carter presents this court with one issue on appeal, which we restate as: Whether the warrantless search of Carter’s purse violated his rights under Article 1, Section 11 of the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY

[4] On June 19, 2021, around 11:00 p.m., Carter crashed while riding a motorcycle near the intersection of 30^th Street and Arlington Street in Indianapolis, Indiana. Marion County Sheriff’s Deputy Christian Schloegel (Deputy Schloegel) was the first to arrive on the scene. Carter was sitting in the street, had a large bump on his head, and was clutching a brown purse to his chest. Deputy Schloegel helped Carter move off the road into a grassy area. Indianapolis Metropolitan Police Officer Elizabeth Flatter (Officer Flatter) was next to arrive. She acquired Carter’s driver’s license for identification, and she further discovered that Carter’s license was suspended and that he did not have an en- dorsement to ride a motorcycle. Officer Flatter decided not to arrest Carter at this time because he had extensive head injuries which necessitated medical attention.

[5] While Officer Flatter investigated Carter’s license status, an ambulance arrived on the scene and Carter was placed inside, together with his brown purse. Outside, Officer Flatter noticed a broken bracelet near Carter’s motorcycle. Believing that it belonged to Carter, Officer Flatter picked it up and walked to the ambulance to return it to Carter. After entering the ambulance, Officer Flatter asked if Carter wanted the bracelet, to which Carter "said yes and reached for it." (Transcript Vol. II, p. 100). Because the bracelet was broken and Carter was on the gurney, Officer Flatter suggested "to wrap it up inside [her] glove that way all the beads stayed together[.]" (Tr. Vol. II, p. 100). Officer Flatter offered to "drop it in the bag for him and he nodded his head as if that was okay." (Tr. Vol. II, p. 100). "The bag was already on the bench in the ambulance. It was already open. [Officer Flatter] didn’t touch it." (Tr. Vol. II, p. 100). When Officer Flatter dropped the bracelet in the brown purse, she observed "what [she] recognized to be a firearm" inside the purse. (Tr. Vol. II, p. 60). Officer Flatter remained silent about the firearm at first because Carter was being treated for his injuries and she did not want him to react, as she needed to ask him questions about the crash.

[6] When Officer Flatter exited the ambulance, she requested to see the purse. She found the handgun in the purse and took possession of it because weapons are not allowed to be transported in an ambulance. In accordance with the Indianapolis Emergency Medical Services policy, "[p]atients shall not be allowed to retain a weapon in their possession during transport, this would include in a purse or bag within their reach. [ ] Any time a weapon is encountered, it will be secured. Ideally, the weapon should be left at the residence or scene. If law enforcement is on the scene, they will be requested to assess the situation, and take the weapon into their possession." (Exh. Vol. I, p. 5). Accordingly, it is standard procedure when transported to the hospital in an ambulance to conduct a safety check of a patient’s possessions and any weapons found must be collected and secured. The serial number is checked on all collected weapons prior to being placed in the property room for safekeeping until the patient is released from the hospital.

[7] Another officer on the scene checked the serial number on the handgun collected from Carter’s purse and discovered that it had been reported stolen. Officer Flatter also discovered that Carter did not have a permit to cany a handgun.¹ Carter was placed under arrest. His purse was thoroughly searched, and officers discovered three cell phones and $328 in cash. Prior to leaving for the hospital, Officer William McMillian (Officer McMillian), who accompanied Carter to the hospital, smelled raw marijuana inside the ambulance.

[8] Once at the hospital, Carter was placed in the shock room, which is the room designated for patients who have suffered traumatic injuries. Patients are stripped down to their underwear in order to fully assess their injuries. Officer McMillian again smelled raw marijuana inside the shock room. While being treated, Carter was protective of his underwear and swatted at the nurses. Seeing this, Officer McMillian believed Carter had marijuana in his underwear and decided to conduct a search. Officer McMillian recovered a black drawstring bag from Carter’s underwear. Although Carter informed Officer McMillian that "it’s just a little bit of weed," the bag contained twenty-three individually wrapped quantities of a white, powdery substance which the officer believed to be cocaine. (Tr. Vol. II, p. 123). Officer McMillian also recovered a second bag from Carter’s underwear which contained marijuana. Subsequent testing revealed that the black drawstring bag contained 5.1917 grams of cocaine and that the second bag contained 18.87 grams of marijuana.

[9] On June 21, 2021, the State filed an Information, charging Carter with Count I, Level 2 felony dealing in cocaine; Count II, Class A misdemeanor carrying a handgun without a license; Count III, Class A misdemeanor driving while suspended; and Count IV, Class B misdemeanor possession of marijuana. On August 22, 2022, the State added Count V, Level 3 felony dealing in cocaine. On December 19, 2022, the State added Count VI, Level 2 felony dealing in cocaine. The following day, the State moved to dismiss Counts I, III, and IV, which was granted by the trial court.

[10] On November 9, 2022, Carter moved to suppress all evidence derived from the search as violating his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. On November 16, 2022, the trial court conducted a hearing on Carter’s motion to suppress and, after receiving evidence, denied Carter’s motion. On December 21, 2022, the trial court conducted a bench trial. At trial, Carter objected to the admission of the handgun found in his purse. The trial court overruled Carter’s objection and admitted the handgun into evidence. Carter also objected to the admission of the drugs retrieved from his underwear at the hospital. Again, the trial court overruled the objection and admitted the evidence. At the close of the evidence, the trial court found Carter guilty of Count II, Class A misdemeanor carrying a handgun without a license; Count V, Level 3 felony dealing in cocaine; and Count VI, Level 2 felony dealing in cocaine. On February 1, 2021, the trial court conducted a sentencing hearing. Due to double-jeopardy concerns, the trial court only sentenced Carter for Count VI, Level 2 felony dealing in cocaine, and imposed a sentence of twenty years, with thirteen years executed and seven years suspended.

[11] Carter now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[1–4] [12] Carter contends that the trial court abused its discretion by admitting the handgun into evidence because it was discovered pursuant to a warrantless search of his purse, which violated his rights under Article 1, Section 11 of the Indiana Constitution. Because Carter’s case proceeded to trial where he renewed his objection to the admission of that evidence, his appeal is properly framed as a request to review the tidal court’s ruling on its admissibility. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013) ("Direct review of the denial of a motion to suppress is only proper when the defendant files an interlocutory appeal."). The trial court has broad discretion to rule on the admissibility of evidence. Id. at 259-60. We review its rulings "for an abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights." Id. But when an appellant’s challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or sei- zure of the evidence, it raises a question of law, and we consider that question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).

[5–7] [13] Carter’s handgun was discovered in "open view." See Justice v. State, 765 N.E.2d 161, 165 (Ind. Ct. App. 2002), clarified on reh’g, 767 N.E.2d 995 (Ind. Ct. App. 2002). The concept of "open view" is used in situations in which a law enforcement officer sees contraband from an area that is not constitutionally protected, but rather is in a place where the officer is lawfully entitled to be. McAnalley v. State, 134 N.E.3d 488, 500-01 (Ind. Ct. App. 2019). In such situations, anything that is within "open view" may be observed without having to obtain a search warrant because making such "open view" observations does not constitute a search in the constitutional sense. Id. However, the Justice court recognized that "in order to lawfully seize items in ‘open view,’ it may be necessary to obtain a search warrant or be able to justify a warrantless seizure under an exception to the warrant requirement." Justice, 765 N.E.2d at 165. In...