COA reverses handgun conviction because officer didn’t follow protocol

Olivia Covington for www.theindianalawyer.com

A police officer did not follow the proper protocol for conducting an inventory search of a detainee’s car, thus making the search impermissible under state and federal constitutions and prohibiting the admittance of any evidence obtained through the search.

In Andre Anderson v. State of Indiana, 49A02-1511-CR-1947, Indianapolis Metropolitan Police Department Officer Cory Heiny pulled over Andre Anderson after running the license plate on Anderson’s car and learning that Anderson had an outstanding warrant for strangulation and his driving privileges were suspended. Heiny requested that Anderson step out of the car, a request Anderson complied with, but not before removing his jacket, an action Heiny said was “uncommon.”

After handcuffing Anderson, Heiny returned to the car before it was towed away, picked up the jacket and discovered a handgun in his pocket. Anderson was not licensed to carry the gun, so the state charged him with Class A misdemeanor and Level 5 felony carrying a handgun without a license. Anderson moved to suppress the handgun as evidence, but the Marion Superior Court denied the motion. He also objected to the admission of the handgun at trial, but his objection was overruled.

The court found Anderson guilty of the felony and sentenced him to three years, prompting Anderson’s appeal, though he chose to forgo an interlocutory appeal of the denial of his motion to suppress.

In his field arrest report of the incident, Heiny framed the search as a search of the vehicle incident to arrest, but in the probable cause affidavit, Heiny describes it as “an inventory of the vehicle prior to towing it from the roadway.” The trial court had declared the search a “valid search incident to arrest” and did not decide whether it was also proper as an inventory search. The state argued that regardless of the type of search Heiny conducted, it was lawful under both state and federal constitutional protections against unlawful searches and seizures.

However, the Indiana Court of Appeals wrote Monday that based on the precedent of Arizona v. Gant, 556 U.S. 332, 335 (2009), Heiny’s entrance into the passenger compartment of Anderson’s car was unlawful. In Gant, the Supreme Court of the United States held that the search of the passenger compartment of a car, incident to the arrest of the driver and sole occupant, is not justified when that driver “could not have accessed his car to retrieve weapons or evidence at the time of the search.”

Similarly, the appellate court held that although IMPD does have a procedure in place through which it can tow cars, there was no evidence presented at trial that showed Heiny followed that procedure. Thus, his search of Anderson’s car did not fall into the inventory search exception to state and federal laws prohibiting unlawful and unwarranted searches and seizures.

Therefore, the appellate panel unanimously reversed the Marion Superior Court’s finding that Anderson was guilty of the Level 5 felony.