Jason R. Merch. v. State Of Ind.

• Decision Date: 05 May 2010
• Docket Number: No. 02A05-0910-CR-610.,02A05-0910-CR-610.
• Citation: 926 N.E.2d 1058
• Parties: Jason R. MERCHANT, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

926 N.E.2d 1058

Jason R. MERCHANT, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.

No. 02A05-0910-CR-610.

Court of Appeals of Indiana.

May 5, 2010.

COPYRIGHT MATERIAL OMITTED

Randy M. Fisher, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Jason Merchant appeals his conviction for unlawful possession of a firearm by a serious violent felon.¹ Merchant raises one issue, which we revise and restate as whether the trial court erred by admitting evidence obtained during a warrantless search of Merchant's vehicle. We affirm.

The relevant facts follow. During the afternoon hours of February 17, 2009, Fort Wayne Police Officers Keith Adair and Ronald Partridge responded to reports of a disturbance at 609 Frye Street in Fort Wayne, Indiana. Upon their arrival, the officers observed a black car leave the scene. As the black car left, the others at the scene were “pointing at the black [car] stating that it's them.” Trial Transcript at 7. Then, a silver vehicle attempted to leave “in a speedy manner” and passed “[w]ithin feet” of Officer Adair, who was outside of his police vehicle. Id. at 7-8. Officer Adair observed that the driver, later identified as Merchant, was not wearing his seat belt and yelled at Merchant to stop the vehicle.

The officers approached Merchant's vehicle on the driver's side, and Officer Adair asked Merchant “why he was driving crazy.” Id. at 8. Merchant told Officer Adair that “he was going to go chase down the [black car] and get a license plate number.” Id. at 9. Merchant kept “putting his right hand back, off to his right side, around the center console, in an area where [Officer Adair] could not see what that hand was reaching for.” Id. at 10. Officer Adair repeatedly told Merchant “to put his hand up where [he] could see it,” but Merchant “kept going back to that area.” Id. These movements concerned Officer Adair because he could not tell whether Merchant was “reaching for a weapon,” and was continuing to “conceal[ ] that hand in an area where [Officer Adair] [could not] see it.” Id. While speaking to Merchant, Officer Adair also heard police radio traffic “from our southwest division” despite the fact that his “radio was tuned to the northwest division.” Id. at 11.

Officer Adair then asked Merchant to pull over to the curb of the street because they “were talking to him, he was extremely nervous, [they] were trying to ascertain what was going on, and [they] were blocking traffic.” Id. at 9-10. As Merchant was moving the vehicle to the curb, Officer Adair observed Merchant remove “something” from the console area and “throw it underneath the passenger seat.” Id. at 11. Officer Adair moved to the passenger side of the vehicle, opened the door, and recovered the item Merchant put under the passenger seat which Officer Adair determined to be a police scanner. As Officer Adair removed the police scanner from the vehicle, Merchant stated that “I just wanted to know where the police were at.” ²Id. at 21.

After Officer Adair removed the police scanner, Merchant “was still reaching back into that area, on his right side, by the center console.” Id. at 13. Officer Adair asked Merchant if he had any weapons with him in the car, but Merchant would not answer. Officer Adair then directed Merchant to step out of the vehicle and asked Officer Partridge to pat Merchant down. Merchant and Officer Partridge stood about five feet from the passenger compartment of the silver vehicle.

Officer Adair moved back to the driver's side of the vehicle and, while “leaning on the car” through the open doorway of the vehicle, opened the center console and recovered a handgun. Id. at 34. After recovering the handgun, Officer Adair told Officer Partridge to handcuff Merchant.

The State charged Merchant with Count I, unlawful possession of a firearm by serious violent felon as a class B felony; and Count II, unlawful use of a police radio as a class B misdemeanor. On August 21, 2009, Merchant filed a motion to suppress evidence of the recovered handgun as “the result of an unreasonable search and seizure in violation of U.S. Const. amend. IV and Ind. Const. Art. I, Sec. 11.” Appellant's Appendix at 35. A bench trial was held on August 27, 2009, and Merchant objected to the admission of the handgun into evidence based upon the recent United State Supreme Court case of Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). ³ The trial court overruled Merchant's objection, finding that the “limited search” of Merchant's vehicle was justified, and admitted the handgun into evidence, and found Merchant guilty as charged. Trial Transcript at 60. On September 21, 2009, the trial court sentenced Merchant to eight years in the Department of Correction with two years suspended to probation on Count I and 180 days executed on Count II to be served concurrently to Count I.

The sole issue is whether the trial court erred by admitting evidence of a handgun obtained during a warrantless search of Merchant's vehicle.⁴ We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.1997) reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997) reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999) reh'g denied, trans. denied. Also, we may affirm a trial court's decision to admit evidence seized as a result of the search based on any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616 (Ind.Ct.App.2000) trans. denied.

Merchant argues that the search was illegal under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

We begin by addressing Merchant's Fourth Amendment claims. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the search is conducted without a warrant, the burden is upon the State to prove that an exception to the warrant requirement existed at the time of the search. Black v. State, 810 N.E.2d 713, 715 (Ind.2004).

The State makes various arguments to justify the search under the Fourth Amendment. The State argues that “ Gant's holding speaks to searches incident to arrest,” but that here “both officers testified, and the trial court found, that [Merchant] was unsecured and unrestrained.” Appellee's Brief at 12. The State argues that Merchant was therefore not under arrest at the time of the search, and thus “ Gant is inapplicable.” Id. The State argues that instead “the warrantless search was proper under the automobile exception, and the evidence was properly admitted on that ground.” Id. at 10. The State also argues that “the search was also proper pursuant to concerns for officer safety,” and that “[e]ven if the Court concludes that [Merchant] was placed under arrest at the time of the search, and that Gant is applicable, the circumstances in this case fit squarely within Gant's holding.” Id. at 11-12. Finally, the State argues that “[a]ssuming arguendo that the search at issue could not pass muster” under Gant, “the good faith exception should apply to this search.” Id. at 12-13.

We begin our analysis with the exception applied by the trial court: that the search producing the handgun was a lawful search incident to Merchant's arrest. In ruling to admit the handgun into evidence, the trial court stated:

I'm not going to engage in the decision and perhaps an Appellate Court will, but I'm not going to engage in the analysis of whether or not Mr. Merchant could get past [Officer] Partridge and/or [Officer] Adair into the console. He was within five feet of the passenger compartment. I'm going to find specifically that he was not restrained, he was in direct presence of Officer Partridge but otherwise he was not restrained, he was not in handcuffs and that it is not unreasonable to believe that certainly there could have been a real struggle had Merchant, to get to the weapon and possibly get to the weapon past these officers, and I guess I don't think it's reasonable to place theses two officers in that kind of peril, given the circumstances of what they do. It is clear that ... it was possible, perhaps not terribly probable but it was possible that [Merchant] could get to that weapon.

Trial Transcript at 61-62.

In so ruling, the trial court determined that the officers' conduct complied with Gant, in which the Court revisited the case establishing the legality of searches incident to arrest New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Belton applied the holding of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), reh'g denied, which first articulated that police may conduct warrantless searches incident to arrest, in the automobile context. Belton “held that when an officer lawfully arrests ‘the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile’ and any containers therein.” Gant, --- U.S. at ----, 129 S.Ct. at 1717 (quoting Belton, 453 U.S. at 460, 101 S.Ct. at 2864 (footnote omitted)).

As articulated in Gant, the purposes behind the exception set forth in Chimel and subsequently applied in Belton were for “protecting arresting officers and...