May, J.
On September 18, 2014, Anderson was pulled over by Indianapolis Metropolitan Police Department (“IMPD”) Officer Cory Heiny … and discovered its owner … had an outstanding warrant for strangulation and his driving privileges were suspended. … Officer Heiny requested he step out of the vehicle. Anderson did so but not before removing his jacket. Officer Heiny found Anderson’s removal of his jacket to be “uncommon.”
… When Officer Heiny picked up Anderson’s jacket, he noticed it was heavy, so he searched the pockets. Officer Heiny discovered a loaded handgun in the pocket. Anderson did not have a license to carry it.
The State charged Anderson with Class A misdemeanor carrying a handgun without a license and Level 5 felony carrying a handgun without a license. Anderson filed a motion to suppress the handgun. The trial court denied the motion. At trial, Anderson objected to the admission of the handgun but the objection was overruled. The trial court found Anderson guilty and imposed a three-year sentence.
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… In the Affidavit for Probable Cause, Officer Heiny refers to the search as “an inventory of the vehicle prior to towing it from the roadway[.]” … The trial court declared the search a “valid search incident to arrest,” and did not decide whether the search was proper as an inventory search.
… If the search is conducted without a warrant, the burden is on the State to prove that, at the time of the search, an exception to the warrant requirement existed. Vehorn v. State, 717 N.E.2d 869, 875 (Ind. 1999). One such exception is a search incident to a lawful arrest. White v. State, 772 N.E.2d 408, 411 (Ind. 2002). Another exception is the inventory search of a vehicle. Lewis v. State, 755 N.E.2d 1116, 1125 (Ind. Ct. App. 2001). …
In 1969, the United States Supreme Court held a search incident to arrest is justified only “for a search of the arrestee’s person and the area ‘within his immediate control’ – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v California, 395 U.S. 752, 763 (1969) …
Subsequently, the Court held the search of the passenger compartment of a car, incident to the arrest of the car’s driver and sole occupant, was not justified when that driver “could not have accessed his car to retrieve weapons or evidence at the time of the search[.]” Arizona v. Gant, 556 U.S. 332, 335 (2009).
Despite that controlling precedent, the State asserts we should follow DeLong v. State, 670 N.E.2d 56 (Ind. Ct. App. 1996). When being arrested, DeLong asked to remove his jacket and he then placed it on the trunk of the police car. As an officer was in the process of returning the jacket to DeLong’s girlfriend, “he felt a hard, cylindrically shaped object in [it.]” … At that point, the officer searched the jacket incident to arrest, and we upheld that search as justified. However, DeLong is factually distinguishable. DeLong’s jacket was on the trunk of the police car and needed to be given to DeLong’s girlfriend before the officers could depart the scene with DeLong, and in the process, the officer felt something suspicious. Here, the officers entered Anderson’s car in order to search the jacket. As that entry was prohibited by Gant, we decline to follow DeLong.
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The police are authorized under their community caretaking function to impound vehicles. See Wilford, 50 N.E.3d at 375 (Ind. 2016) … In order for the warrantless impoundment of a vehicle to be reasonable, the Indiana Supreme Court has established a two-prong standard:
“(1) that the belief that the vehicle posed some threat or harm to the community or was itself imperiled was consistent with objective standards of sound policing, and
(2) that the decision to combat that threat by impoundment was in keeping with established departmental routine or regulation.” … Both prongs must be satisfied – if the State cannot meet one, we need not consider the other. Wilford, 50 N.E.2d at 376.
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While the police department has a procedure in place to tow vehicles, nothing produced at trial demonstrates Officer Heiny followed that procedure. …
The search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search; thus, the trial court abused its discretion when it admitted the handgun into evidence. …
Reversed.
Baker, J., and Brown, J., concur.