Edwards v. State

• Decision Date: 18 January 2002
• Docket Number: No. 31A01-0103-CR-113.,31A01-0103-CR-113.
• Citation: 762 N.E.2d 128
• Parties: Richard H. EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

762 N.E.2d 128

Richard H. EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 31A01-0103-CR-113.

Court of Appeals of Indiana.

January 18, 2002.

Matthew Jon McGovern, Louisville, KY, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

MATTINGLY-MAY, Judge.

Richard Edwards seeks review of the trial court's admission into evidence of 32 cartons of cigarettes police found in the back of his pick-up truck. He claims the warrantless search of his vehicle did not fall within any of the established exceptions to the warrant requirement, and the trial court abused its discretion in admitting them. Further, Edwards contests the authenticity of a videotape admitted at trial, and claims the State failed to lay an adequate foundation for the videotape's admission under the "silent witness" standard.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts favorable to the judgment show that on July 16, 2000, Richard Edwards entered a Smokey's Discount Tobacco Outlet three separate times, placed cartons of cigarettes into his clothing, and left the store without paying for the cigarettes. The cashier saw Edwards take the cigarettes. After Edwards left the store for the third time, the cashier reviewed the surveillance videotape and reported the theft to police.

Officer Sadler responded to the dispatch for the reported theft. The cashier described Edwards and his vehicle, and provided a partial license plate number. Sadler staked out the store and observed a vehicle matching the description and the partial plate number provided by the cashier. The vehicle pulled into a gas station called "Cowboys." Sadler radioed for backup while observing Edwards pump gas into his vehicle.

Once supporting officers arrived, Sadler placed Edwards under arrest for theft and informed him he had been observed and his activities were on videotape. Sadler also cited Edwards for an expired plate violation, which by statute requires impoundment of the vehicle. While processing Edwards at the scene, Sadler noticed a black unopened garbage bag in the bed of Edwards' truck. Sadler opened the bag, found cartons of cigarettes, and took photos of the contents of the garbage bag.

Edwards was convicted after a jury trial of class D felony theft and was found to be an habitual offender. He was sentenced to seven and one half years in the Department of Correction.

DISCUSSION AND DECISION

1. The Search

Edwards claims an abuse of discretion by the trial court in its admission of photographs and testimony related to the seizure of 32 cartons of cigarettes from the back of his pick-up truck. The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Johnson v. State, 710 N.E.2d 925, 927 (Ind.Ct.App. 1999). Upon review of a trial court's ruling on a motion to suppress evidence, we will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. Callahan v. State, 719 N.E.2d 430, 434 (Ind.Ct.App.1999). We will neither reweigh the evidence nor judge witness credibility. Johnson, 710 N.E.2d at 927.

Edwards asserts that the warrantless search of his truck was performed outside of the requirements of the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution. Edwards correctly argues that "When the prosecution seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing both the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception." Fair v. State, 627 N.E.2d 427, 430 (Ind.1993).

The State argues that the search was well within the established exceptions to the warrant requirement because 1) the search was a valid inventory search; 2) probable cause existed at the time of arrest to support the search; 3) the search was conducted incident to the arrest of Edwards; and 4) the cigarettes were in plain view. We will address each contention in turn.

A. Inventory Search

In general, the Fourth Amendment prohibits warrantless searches. Vehorn v. State, 717 N.E.2d 869, 875 (Ind.1999); Berry v. State, 704 N.E.2d 462, 465 (Ind.1998). If the search is conducted without a warrant, the burden is upon the State to prove that, at the time of the search, an exception to the warrant requirement existed. Vehorn, 717 N.E.2d at 875. An inventory search of a vehicle is one such recognized exception. Id.; Lewis v. State, 755 N.E.2d 1116, 1125 (Ind.Ct.App.2001).

The threshold question in inventory searches is whether the impoundment was proper. Fair, 627 N.E.2d at 431. In order to establish that an impoundment was proper, the State must demonstrate: 1) the belief that the vehicle posed some threat or harm to the community or that it was itself imperiled was consistent with objective standards of sound policing, and 2) the decision to combat that threat by impoundment was in keeping with established departmental routine or regulation. Id. at 433. An appellate court may determine that a threat or harm to the community is implicated when: 1) the arrest of the driver has left his car unattended on a highway; 2) where the owner of the vehicle cannot be located; and 3) where the vehicle is left on private property and the owner of the property has requested removal. Gibson v. State, 733 N.E.2d 945, 957 (Ind.Ct.App.2000).

Edwards' truck was not left on a highway, nor is there evidence Edwards' truck posed a hazard. It was evident to law enforcement at the scene that Edwards owned the truck, and there is no evidence that the owner of the Cowboys property had requested its removal. However, the impoundment of Edwards' truck was required by Ind.Code § 9-18-2-43¹ because Edwards was also detained for an expired plate violation.

While the impoundment of the truck was proper, the State failed to show that the search conducted pursuant to the impoundment was reasonable. "The search must be conducted pursuant to standard police procedures, as evidenced by the circumstances surrounding the search." Stephens v. State, 735 N.E.2d 278, 282 (Ind.Ct.App.2000), trans. denied 741 N.E.2d 1259 (Ind.2000). Searches performed in conformity with standard police procedures are reasonable under the Fourth Amendment. Vehorn, 717 N.E.2d at 875. However, the State must present more than conclusory testimony of an officer that the search was conducted as a routine inventory. Stephens, 735 N.E.2d at 282; Rabadi v. State, 541 N.E.2d 271, 275 (Ind.1989). "The circumstances surrounding the intrusion must also indicate that the search was part of established and routine department procedures which are consistent with the protection of the police from potential danger and false claims of lost or stolen property and the protection of the property of those arrested." Rabadi, 541 N.E.2d at 275.

Edwards contends the inventory search of his truck that resulted in the seizure and admission of 32 cartons of cigarettes was a pretextual search for evidence of a crime, and not a proper inventory search. The State disagrees and points to the following evidence by Officer Sadler:

Q: What did you see as you approached the truck, describing the truck itself?

A: As I approached the truck, like I say, I approached Mr. Edwards. In the back of the truck there was a large garbage bag. The bag was shut. It was not opened. It did appear to be full with, what looked like to me, cartons of cigarettes, based on the outline of the contents protruding from the bag.

Q: And where was the bag located in regards to the back of the truck?

A: It was dead square in the middle of the pick-up truck, between the two wheel wells.

Q: Okay. Did you, uh, search the vehicle?

A: Yes I did.

Q: And tell me what steps you took to search the vehicle.

A: Basically, I just opened the bag and looked at the cigarettes to confirm that there were cigarettes in that bag. There was. I then started taking pictures of the cigarettes. I took pictures of the tool box, once I opened it. I took pictures inside the truck, just basically got an inventory to protect myself because I don't want the (inaudible) coming back and saying there was Ten Thousand Dollars in that vehicle that, you know, wasn't there to start with.

(R. at 120-21).

We note initially that the record does not include the substance of any police department policy regarding inventory searches, or even indicate there is such a policy. To show that its actions come within the inventory exception, the State must do more than offer the bald allegation of law enforcement that the search was conducted as a routine inventory. Stephens, 735 N.E.2d at 282. The trial court therefore had no evidentiary basis to evaluate whether the inventory search performed on Edwards' truck was in conformity with established local law enforcement policy. The rule that standardized criteria or established routine must exist as a precondition to a valid inventory search is designed to ensure that the inventory is not a pretext "for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Accordingly, in evaluating the warrantless search of an automobile in Stephens, we determined that the search was reasonable in light of the record of processing the vehicle through central receiving. There, the records detailed who towed the car, indicated the detective responsible for the investigation, and described the valid traffic hazard basis for the tow. The detective conducted the search in front of two witnesses, compiled an inventory of all the contents of the vehicle, created a property sheet, and placed the items into the property room of the sheriff's department. 735 N.E.2d at 282.

Finally, we note that inventory searches...