Fair v. State, 49A04-9207-CR-255
| Decision Date | 21 June 1993 |
| Docket Number | No. 49A04-9207-CR-255,49A04-9207-CR-255 |
| Citation | 615 N.E.2d 489 |
| Parties | James FAIR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Andrew W. Swain, Lee & Clark, Indianapolis, for appellant-defendant.
Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Defendant-Appellant, James Fair (Fair), appeals his conviction for Dealing in a Sawed-Off Shotgun, a class D felony. We affirm.
Fair presents two issues for our review, which we consolidate and restate as follows: Whether the trial court properly denied Fair's motion to suppress evidence obtained in a warrantless search of his car.
On October 13, 1991, Fair attended a party at the Vantage Point Apartments in Indianapolis. Fair drove a red 1991 Plymouth Acclaim, rented from Enterprise Rental Company, to the party. He parked the car in the guest parking lot of the apartment complex.
Officer Jeffrey Wager of the Indianapolis Police Department was dispatched to the Vantage Point Apartments at 1:20 a.m. in response to gun shots being fired. The dispatcher advised Officer Wager that a suspect was a black male wearing a red baseball cap and blue or gray pants, with a firearm. As he approached the apartments, Officer Wager saw a man in the parking lot who fit the suspect's description. This man was later identified as Fair. He was standing behind a red car with the trunk open and placed a cylindrical object in the trunk.
As Officer Wager pulled into the parking lot, he lost sight of Fair. When Wager saw him again, the trunk was closed and Fair was standing beside the car. Wager parked his squad car and asked Fair to move away from the car. He then performed a pat-down search for weapons on Fair. Officer Wager found six 20-gauge shotgun shells in Fair's pants pocket.
During the pat-down Officer Wager noticed that Fair was intoxicated. He could not stand without supporting himself on the car and had a strong odor of alcoholic beverage on his breath. In addition, Fair exhibited poor manual dexterity when he gave Wager his identification. Officer Wager arrested Fair for public intoxication, handcuffed him and placed him in the police car. Fair told Wager his car was a rental. At this point Wager impounded the car and then performed an inventory search. He took notes of the items in the car and found a sawed-off shotgun in the trunk.
The State charged Fair with Dealing in a Sawed-Off Shotgun, 1 a class D felony. Fair filed a motion to suppress the evidence found by Officer Wager during the search. The trial court held an evidentiary hearing and denied Fair's motion. A bench trial was held, where Fair renewed his objection to the evidence obtained in the search. The trial court found Fair guilty.
Fair argues the trial court committed error when it denied his motion to suppress as evidence the shotgun seized from the trunk of his car by Officer Wager.
Fair acknowledges that a police officer's inventory search of an impounded car pursuant to established police caretaking procedures constitutes an exception to the federal and Indiana constitutional requirement that the police search and seize property under a warrant. South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Rabadi v. State (1989), Ind., 541 N.E.2d 271. However, he believes the circumstances of his arrest did not justify an impoundment and inventory search. We disagree.
Our supreme court has set forth three (3) reasons for conducting an inventory search: 1) protection of private property in police custody; 2) protection of the police from claims over lost or stolen property; and 3) protection of police from potential danger. Foulks v. State (1991), Ind., 582 N.E.2d 374, 376. The State must show that its actions came within the inventory exception and must offer more than the mere statement of a police officer that the search was conducted as a routine inventory. Isom v. State (1991), Ind.App., 589 N.E.2d 245, 246, trans. denied. The circumstances surrounding the search must also indicate that the search was part of established and routine department procedures consistent with the public policies and interests which underlie such searches. Id.
The facts show that Officer Wager had probable cause to arrest Fair for public intoxication and took Fair into custody due to his arrest. By reason of Fair's arrest for public intoxication, Officer Wager had a right and a duty to impound his car. Johnson v. State (1990), Ind., 553 N.E.2d 477, 479 (); Eckstein v. State (1988), Ind., 526 N.E.2d 693, 694 (). Fair argues this is not a legitimate reason to impound his car. He asserts that a car can only be impounded pursuant to a motor-vehicle or forfeiture statute. While these are legitimate reasons to impound a vehicle, they are not the only reasons this court recognizes. An arrest and confinement for public intoxication also justifies impounding a car and conducting an inventory search. Id.
Officer Wager also testified it was department policy to impound a vehicle belonging to an arrestee and inventory the contents of the vehicle. He stated that he arrested Fair, handcuffed him, and sat him in the back of the squad car. After he determined that the car driven by Fair belonged to a rental company, Wager impounded the car. He then read Fair the Miranda warning and conducted the inventory search of the car. R. 98-105. By impounding the car and conducting an inventory search, Officer Wager protected the car, which belonged to Enterprise Rental Company, from potential damage and theft while parked at the apartments. In addition, impounding the car and conducting an inventory of its contents protected the police from claims of lost or stolen property and protected the police and the public from the danger that a loaded shotgun presents.
Fair claims the search was investigative because Officer Wager expected to find a shotgun in the car. Wager testified he expected to find a weapon when he searched the car. This is not an unreasonable expectation in light of the circumstances. Officer Wager responded to a report of gunshots at the apartments and he found shotgun shells in the pocket of Fair, who fit the suspect's description. However, Officer Wager also testified he decided to do the inventory search of the car after he arrested Fair because it was Fair's car. Officer Wager followed IPD policy for the inventory search of an arrested person's car, and we cannot say that his expectation of what he would find in the inventory search changed the nature of that search.
Fair also argues that his car should not have been impounded because it was parked on private property at the apartment complex. We have held that this is only true if the vehicle is parked at the home of the person being arrested. Johnson v. State, 553 N.E.2d at 479. Although Fair's rental car was parked on private property, it was not property controlled by Fair. The property manager at Vantage Point Apartments testified that a non-resident vehicle left in the guest parking lot would be towed. If the manager did not have the car towed, it would have remained unattended in the parking lot for at least a day and one half while Fair was in jail. Therefore, impoundment of the car concurrently with Fair's arrest was proper. The trial court did not err in denying Fair's motion to suppress.
Affirmed.
I dissent because there can be no "inventory" search of an impounded vehicle until the vehicle is impounded and then, only if the inventory is a routine police procedure. As the record makes clear, Officer Wager, a Field Training Officer, searched the trunk of Fair's rental car before he impounded it. R. 99, 104-106 infra. As noted by the majority and Professor Kerr, if a vehicle is lawfully impounded after the operator is arrested, the arresting officer may make an inventory search of the impounded vehicle. South Dakota v. Opperman (1976), 428 U.S. 364, 375, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000; Brown v. State (1982), Ind., 442 N.E.2d 1109, 1116; William A. Kerr 16 Indiana Practice Sec. 3.4 (1992 supp.). Once a vehicle is lawfully impounded, the police may inventory the vehicle if the procedure used is "conducted by law enforcement officers on a 'routine' basis." Griffin v. State (1978), 175 Ind.App. 469, 372 N.E.2d 497, 501; Kerr, supra, Sec. 3.4e. The purpose of a valid inventory search is not to recover admissible evidence of criminal activity, its primary purpose is to safeguard the owner's property. Kerr, supra, Sec. 3.4e.
The majority seems to imply that because Fair was under arrest, Wager had the unlimited right to search Fair's car. Even the State did not argue such extreme position at the suppression hearing. At the hearing, the State did not claim this was a search incidental to a lawful arrest nor attempt to apply the "automobile exception" to this case, for the good reason that neither applied.
Officer Wager's testimony at the suppression hearing shows that no element of a valid inventory search was present when he searched Fair's vehicle. At the time, Fair was handcuffed and in the back seat of Wager's police car. R. 99. Wager testified that:
Q. Did you walk--when you got that slip, did you walk from Mr. Fair's car back to the police car?
A. Yes I did. An uh--I sat down in the driver's seat of my police car with him in the back seat. Uh, because I had seen him placing something in the trunk and he had shotgun shells, I made an...
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Fair v. State
...of a divided Court of Appeals rejected these arguments and concluded that a proper inventory search had occurred. Fair v. State (1993), Ind.App., 615 N.E.2d 489. We disagree and reverse. II. Introduction to Inventory Searches The Fourth Amendment to the U.S. Constitution, applicable to the ......