May, J.
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On August 18, 2014, Officer Dustin Greathouse saw Rhodes driving over the speed limit. Officer Greathouse initiated a traffic stop, and Rhodes parked his vehicle in a nearby driveway. Rhodes initially told Officer Greathouse he pulled into the driveway because his cousin lived there; Rhodes later admitted he was trying to avoid Officer Greathouse because Rhodes was driving with a suspended license.
Officer Greathouse arrested Rhodes for driving with a suspended license and decided to tow the car. Before he towed the car, Officer Greathouse conducted an inventory search of the glove box, trunk, and passenger compartment. He found “numerous personal items,” and “miscellaneous items,” for which he did not create a record. Officer Greathouse also found a half-eaten pizza, a pizza delivery bag, and a jar of money. [Record citations omitted throughout.] In the glove box, Officer Greathouse found a “red metal grinder,” (id. at 49), containing “a small amount of marijuana.” At some point before the car was towed, someone from the house came outside to ask if everything was okay and to “make sure the car was not going to be left in the driveway.”
Before his bench trial, Rhodes filed a motion to suppress the items found as part of the inventory search on the ground the search violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. After a hearing, Rhodes’ motion was denied. He objected to the admission of the same evidence during trial, and his objection was overruled. The trial court found Rhodes guilty of Class A misdemeanor possession of marijuana and Class A misdemeanor driving while suspended. [Footnote omitted.] …
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One exception to the warrant requirement is an inventory search of a properly impounded vehicle. Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993). … Our Indiana Supreme Court laid out in Fair the test for reasonableness with regard to an inventory search * * * [and held that the] inventory search was unreasonable because the State did not prove the scope of the search complied with official police policy.4 …
[Footnote 4: As we hold the inventory search invalid, we need not determine if the impoundment was improper. See Fair, 627 N.E.2d at 431 (“Whether either [the impoundment or inventory search] is clearly unreasonable, the search will not be upheld.) (emphasis added).]
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Additionally, in Fair, our Indiana Supreme Court held:
The fatal defect in this search is that the provisions of the Indianapolis Police Department’s inventory policy are not established in sufficient detail by the record. Officer Wager testified only that “we conduct an inventory search of the car to see what kind of items are in it. If there’s anything valuable that might need to be placed in the property room or otherwise noted as being in the car.” There was no testimony whatsoever that provided the particulars of the policy and, therefore, it is not possible for this Court to determine whether the seemingly suspicious circumstances which [sic] attended the search were in
627 N.E.2d at 436 (citations to the record omitted).
Officer Greathouse testified he conducted an inventory search of Rhodes’ vehicle “to make sure no valuables are left inside the vehicle before it’s towed[,]” and if valuable items are found, “we may take them and put them in the IMPD property room to be held for safekeeping.” However, the only items Officer Greathouse inventoried were those items that supported the marijuana possession charge.
Officer Greathouse’s testimony regarding police procedure can be distinguished from that of the officer in … Wilford v. State, 31 N.E.3d 1023 (Ind. Ct. App. 2015), trans. pending, in which we held an officer’s testimony was sufficient to prove compliance with police procedure. …
… [T]he testimony in Wilford was significantly more detailed than the testimony offered by Officer Greathouse. … Officer Greathouse testified regarding police inventory procedure, “For an impounded vehicle, we will search the passenger compartment area as well as the glove box if it’s unlocked and the trunk if it’s unlocked.” While Officer Greathouse’s testimony comports with what he did, it seems highly unlikely the Indianapolis Police Department inventory search procedure varied as greatly as the officers’ testimonies would suggest it did.
Officer Greathouse’s testimony was insufficient to prove the inventory search he performed of Rhodes’ vehicle complied with official police policy. Because the State did not present evidence of police procedure, the search violated Rhodes’ Fourth Amendment protection from unreasonable search and seizure. [Footnote omitted.] Therefore, the trial court abused its discretion when it admitted the evidence found in Rhodes’ vehicle as part of the inventory search.
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… Accordingly, we reverse Rhodes’ conviction of Class D felony possession of marijuana with a prior conviction.
Reversed.
Barnes, J., concurs with separate opinion.
Crone, J., dissents with separate opinion.
Barnes, Judge, concurring.
I fully concur with Judge May’s conclusion that the search here fell far short of the requirements for a constitutional inventory search.
… I have voted to uphold inventory searches in cases such as Jones v. State, 856 N.E.2d 758 (Ind. Ct. App. 2006), and Whitley v. State, No. 49A02- 1501-CR-50 (Ind. Ct. App. Dec. 7, 2015). I did so because there was at least some semblance of comportment with constitutional and statutory requirements, and I felt comfortable some effort had been made to comply.
There was no evidence of that happening here. No inventory, no listing of property, no taking of the car to an impoundment lot before searching, no securing of the property seized, no nothing. … I am not suggesting that anything less than punctilious and exaggerated compliance will suffice, but there has to be more than was exhibited here. Thus, I fully concur with Judge May’s opinion.
Crone, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that the scope of Officer Greathouse’s inventory search of Rhodes’s vehicle was unreasonable. I believe that the majority unduly emphasizes what the record does not show about IMPD’s inventory search procedure instead of what the record does show.
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Like the officers’ testimony in Wilford, Officer Greathouse’s testimony “described the purpose of the inventory, outlined the procedures used to conduct this particular inventory, and established that IMPD policy authorizes on-site inventory searches.” 31 N.E.3d at 1033. Thus, as in Wilford, “[e]ven absent introduction of the formal IMPD policy on inventory searches, [I] think this testimony was sufficient to show that the search was part of established and routine procedures that are consistent with the community caretaking function.” Id. Also, as in Wilford, “this record does not contain indicia of pretext for ‘general rummaging’ through the car to find incriminating evidence[,]” in that Rhodes “was already under arrest for driving while suspended when Officer [Greathouse] decided to impound the car” and the officer “followed the described procedure when he conducted the search.” Id.
Moreover, I think that Officer Greathouse’s decision to impound Rhodes’s vehicle was reasonable under the circumstances, given that the car was parked in the “driveway of a private residence” and someone in the residence wanted “to make sure that the car was not going to be left in the driveway.” Therefore, I would uphold the search under both the state and federal constitutions and affirm Rhodes’s conviction for class D felony marijuana possession.