Bradford, J.
In May of 2017, a vehicle being driven by Carl Smith was stopped by police after committing multiple traffic infractions. After it was determined that Smith’s driver’s license was suspended, officers decided to have the vehicle towed. Prior to being towed, officers searched Smith’s vehicle and discovered a handgun, for which Smith did not have a license to carry. In October of 2018, Smith was convicted of Class A misdemeanor carrying a handgun without a license and Class A infraction driving while suspended. Smith does not contest his conviction for driving while suspended but contends that the purported inventory search was not conducted pursuant to established departmental routine or regulation, violating his rights under the Fourth Amendment of the United States Constitution. Finding his contention dispositive and agreeing with it, we affirm his conviction for driving while suspended and reverse his conviction for carrying a handgun without a license.
….
Smith contends that the trial court erroneously admitted evidence obtained during the search of his car because said search violated his rights pursuant to the Fourth Amendment of the United States Constitution. Specifically, Smith contends that the State failed to establish that the impoundment was done pursuant to the police department’s established routine or regulation. …
The Fourth Amendment guarantees people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” “[W]hen police impound a vehicle and inventory its contents, they effect a search and seizure, and both measures must be reasonable—that is, executed under a valid warrant or a recognized exception to the warrant requirement.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). A well recognized exception to the warrant requirement is a valid inventory search. Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000). … The State bears the burden of proving that the inventory search was reasonable. The threshold question in determining the validity of an inventory search is proper impoundment, and impoundment is reasonable if authorized by statute or the police’s discretionary community-caretaking function. … Because neither party contends that the inventory search was authorized by statute, we focus on whether the search was reasonable pursuant to the police’s community-caretaking function.
The Indiana Supreme Court has stated that “police may discharge their caretaking function whenever circumstances compel it, but also that a decision to impound must be exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” … Thus, in order for the State to prevail on the question of whether an impoundment was warranted in terms of the community-caretaking function and was not pretextual, it must establish that (1) consistent with objective standards of sound policing, the officer believed that the vehicle posed a threat of harm to the community or was itself imperiled, and (2) the officer’s decision to impound the vehicle adhered to established departmental routine or regulation. Wilford, 50 N.E.3d at 376.
We conclude that the State failed to establish that Officer Trotter’s decision to impound Smith’s vehicle adhered to established departmental routine or regulation. While we do not require evidence of the department’s written procedure, we do require more than conclusory testimony from an officer. Id. An officer’s testimony provides adequate evidence of the department’s impoundment procedure if “it outlines the department’s standard impound procedure and specifically describes how the decision to impound adhered to departmental policy or procedure—as opposed to an officer’s generalized assertion.” Id. at 377 … Officer Trotter’s testimony regarding impoundment is at best a generalized assertion that the impoundment and search were conducted pursuant to the department’s procedure; however, it fails to specially describe how the impoundment decision adhered to the department’s procedure. Moreover, the State acknowledges that “there was not sufficient evidence of the [Indianapolis Metropolitan Police Department] inventory policy admitted at trial.” Given the conclusory nature of Officer Trotter’s testimony and the State’s concession, we conclude that the trial court erroneously admitted the evidence obtained from the inventory search.
….
The judgment of the trial court is affirmed in part and reversed in part, vacating Smith’s conviction for Class A misdemeanor carrying a handgun without a license.
Crone, J., concurs.
Tavitas, J., concurs in result with opinion.
I concur in result with the majority’s opinion. I write separately, however, to emphasize the unusual circumstances here.
…
It is perfectly clear that the first prong of the test was met here. The officer observed multiple traffic violations and stopped the vehicle that Smith was driving. An adult female and four children were also in the vehicle. Smith, who adheres to the sovereign citizen ideology, repeatedly refused to identify himself. The officer was eventually able to identify Smith and learned that Smith’s driver’s license was suspended. The female passenger also lacked a valid driver’s license. The officer testified that Smith’s vehicle posed a hazard to public safety because it was parked in the single travel lane of the road, which had no on-street parking lane, and the officers decided to tow the vehicle. The officers then completed an inventory search of the vehicle and discovered the handgun. As the vehicle was parked in the travel lane of a road and neither adult in the vehicle possessed a valid driver’s license, towing of the vehicle was clearly consistent with sound policing.
As for the second element, it seems clear that the officer’s decision to impound would have complied with any department’s impoundment policy. Our Supreme Court, however, has held that “[o]fficer testimony provides adequate evidence of departmental impound policy if it outlines the department’s standard impound procedure and specifically describes how the decision to impound adhered to departmental policy or procedure.” Wilford, 50 N.E.3d at 377. On appeal, the State concedes that “there was not sufficient evidence of the IMPD inventory policy admitted at trial.” Appellee’s Br. p. 14. Because the State failed to present sufficient evidence at the trial that the officer’s decision adhered to established departmental routine or regulation, I am constrained to find that the trial court erroneously admitted the evidence obtained during the search of the vehicle.
The State also argues that the evidence was admissible under the search incident to arrest exception because it was reasonable to believe that evidence relevant to the crime of arrest would be found in the vehicle. [Footnote omitted.] Specifically, the State contends the officers were looking in the vehicle for Smith’s identification. The majority holds that the State waived this argument. I disagree that the State waived this argument. We may affirm a trial court’s ruling on the admissibility of evidence “on any theory supported by the evidence.” Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). I conclude, however, that the State failed to present sufficient evidence at the trial to establish that the search incident to arrest exception is applicable here. At the time of the search, the officers had already identified Smith and already learned that his driver’s license was suspended. A search of the vehicle would not have revealed evidence that Smith refused to identify himself or drove while suspended. For these reasons, I concur in result.