Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 1 of 17 A TTORNEY S FOR A PPELLANT Kimberly A. Jackson David R. Hennessy Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Greg ory F. Zoeller Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Phillip Whitley , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff December 7, 2015 Court of Appeals Case No. 49A02

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- 50 Appea l from the Marion Superior Court The Honorable Steven R. Eichholtz, Judge Trial Court Cause No. 49G20

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- FA

- 8402
Mathias, Judge.

[1] Phillip Whitley (“Whitley”) was charged in Marion Superior Court with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdem eanor driving while suspended. The evidence supporting the charges was discovered during an inventory search of the vehicle Whitley wasCourt of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 2 of 17 driving. Whitley filed a motion to suppress this evidence , arguing the warrantless search violated his constitutional rights under the Fourth Amendm ent and Article 1, Section 11. The trial court denied Whitley ’ s motion to suppress , certified its decision , and our court has accepted jurisdiction of this interlocutory appeal.

[2] We affirm. 

### Facts and Procedural History
[3] At approximately 12:35 a.m. on February 20, 2014, Indianapolis Metropolitan Police Officer (“IMPD”) Frederick Lantzer ( “ Officer Lantzer ” ) initiat ed a traffic stop of a pick up truck because it displayed a passenger car l icense plate. The license plate was also regi stered to a different vehicle. Whitley, the driver of the truck, provided his name to Officer Lantzer and admitted that he lacked a vali d driver ’ s license. After Whitley was unable to produce the truck ’ s registration, the officer confirmed that the truck was not registered to Whitley and that his driver ’ s license was suspended

.
[4] The truck was parked on Auburn Street near the intersection Au burn Street and Washington Street. Because the truck was partially in the roadway , Officer Lantzer decided it was necessary to impound the truck, and IMPD Officer Tim Huddleston (“Officer Huddleston) conducted the administratively required inventory search roadside

. During the search, the officer discovered a

“ decorative box ” on the front passenger ’ s seat containing a substance later identified as more than seven grams of methamphetamine, a lighter, a packageCourt of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 3 of 17 of rolling papers, a money clip, a burnt marijua na cigarette, and a pill bottle. The pill bottle contained two alprazolam pills and eight clonazepam pills , Schedule IV prescription drugs for which Whitley had no prescriptions

.
[5] Whitley was also searched incident to his arrest , and a glass pipe commonly

u sed to smoke methamphetamine was found in his pocket. He also had $1135 in his wallet.

[6] On February 24, 2014, Whitley was charged with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdem eanor driving while suspended. On September 10, 2014, Whitley filed a motion to suppress the evidence seized during the search of the truck , arguing that the warrantless search violated his rights under the Fourth Am endment and Article 1, Section 11.

[7] At the hearing held on W hitley ’ s motion , the trial court admitted into evidence the IMPD ’ s General Order 7.3 on T owing and Impounding Vehicles. The order states that an IMPD officer may impound a vehicle if it is “ [b]eing operated by

a non - licensed or suspended driver ” and defines a vehicle inventory search as

“ an administrative, routine and warrantless search of the passenger area (including the glove compartment), trunk, and closed containers[.] ” Ex. Vol., State ’ s Ex. 1. The order also provides that inventory searches “ should not be motivated by an officer ’ s desire to investigate and seize evidence of a criminal act. ” Id

. Also, “[w] henever an officer takes a vehicle into custody, an inventoryCourt of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 4 of 17 search will be conducted prio r to impoundment and a detailed listing of any property found in the vehicle will be made. ” Id. The order also directs the off icer to search all containers. Id

. Finally, the order requires all property discovered during an inventory search to “ be listed in the officer ’ s personal notebook. ” Id.

[8] Officer Lantzer testified that the truck was impounded because the owner was not identified to the officers and it was parked halfway in the roadway blocking

a lane of traffic. Tr. pp. 13

- 14. Officer Huddleston performed the inventory search but did not complete any related paperwork. He told Officer Lantzer what he found in the truck, and Officer Lantzer listed certain items in the probable cause affidavit. Photographs taken of the interior of truck by the evidence technician after Officer Huddleston ’ s search established that other personal items were in the truck that were not listed by Officer Lantzer i n the probable cause affidavit.

[9] On November 25, 2014, the trial court issued its orde r denying Whitley ’ s motion to suppress. In its order, the court observed that impo undment of the truck was proper but also concluded that the procedures outlined in the IMPD ’ s General Order 7.3 on Towing and Impoundi ng Vehicles were not followed. Appellant ’ s App. p. 52. Specifically, the court noted that Officer Huddleston

“ did not list any items ” found during the inventory search: “ not in the officer ’ s personal notebook, not on the tow slip, or anywhere else. ” Appellant ’ s App. p. 52. However, Officer Lantz er listed items discovered during the inventory search in his probable cause affidavit. Therefore, the court conclude d thatCourt of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 5 of 17 “ there is nothing to indicate that this was anything other than a routine inventory search and was not a pretext for a narcotics inv estigation. ” Id

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[10] Thereafter, Whitley filed a motion requesting that the trial court certify its order denying his motion to suppress for interlocutory appeal. The trial court granted his motion, and on February 6, 2015, our court accepted jurisdiction of Whitley ’ s interlocutory appeal. 1


### Standard of R eview
[11] W e review both a trial court ’ s denial of a motion to suppress and its rulings on the admissibility of evidence for an abuse of discretion. Goens v. State , 943 N.E.2d 829, 831 (Ind. Ct. App. 2011)

. A tria l court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before it. Id. In conducting our review, we will neither reweigh the evidence nor assess witness credibility, and we will consider conflict ing evidence in a light most favorable to the trial court ’ s ruling. Id . at 831

- 32. “ However, we must also consider the uncontested evidence favorable to the defendant. ” Webster v. State , 908 N.E.2d 289 (Ind. Ct. App. 2009), trans. denied

. 

### Standing
[12] As an initial matter, the State argues that Whitley did not establish that he had a reasonable expectation of privacy in the truck or that he had standing under

1 On October 21, 2015, we held oral argument in this case at Indiana Tech Law School in Fort Wayne, Indiana. We thank the law school’s faculty and staff for their hospitality, and commend counsel for the qual ity of their written and oral advocacy.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 6 of 17 the Indiana Constitution that would allow him to challenge the validity of the search . However , the State concedes that it did not raise this argument at the hearing

. See Appellee ’ s Br. at 9.

[13] Under the Fourth Amendment, “ a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reas onable[.] ” Minnesota v. Carter , 525 U.S. 83, 88 (1998). Our supreme court has held that the driver of a borrowed car has met his burden under the federal and state constitutions if the driver testifies that he had consent to drive the car and the State introduces no evidence to the contrary. Campos v. State , 885 N.E.2d 590, 599 (Ind. 2008)

. However, “ where the [S] tate has failed to make any trial court challenge as to whether the defendant has a legitima te expectation of privacy, the S tate may not raise the issue for the first time on appeal. ” Gregory v. State , 885 N.E.2d 697, 704 (Ind. Ct. App. 2008), trans. denied. See also Armour v. State , 762 N.E.2d 208, 213 (Ind. Ct. App. 2002), trans. denied

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[14] To challenge a search under the Indiana Constitution, “ a defendant must establish ownership, control, possession, or interest ” in the premises searched. Campos , 885 N.E.2d at 598 (quoting Peterson v. State , 674 N.E.2d 528, 534 (Ind. 1996)). T he State must raise the issue of standing at the trial court level in o rder to preserve it for appeal. See Willis v. State , 780 N.E.2d 423, 427 (Ind. Ct. App. 2002) (citing Everroad v. State , 590 N.E.2d 567, 569 (Ind. 1992)).Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 7 of 17 [15] Because the State did not object to standing and/or argue that Whitley did not have a reasonable exp ectation of privacy in the truck in the proceedings below , we conclude that the State has waived these arguments for the purposes of this appeal.


### The Fourth Amendment
[16] The Fourth Amendment to the United States Constitution, made applicable to the states thr ough the Fourteenth Amendment, protects persons from unreasonable searches and seizures. Taylor v. State , 842 N.E.2d 327, 330 (Ind. 2006). The fundamental purpose of the Fourth Amendment is to protect the legitimate expectations of privacy that citizens possess in their persons, homes, and belongings. Id. (citing Ybarra v. Illinois , 444 U.S. 85, 91 (1979)). Subject to certain well

- established exceptions, a warrant is required to demonstrate that a search is reasonable. Berry v. State , 967 N.E.2d 87, 90 (Ind. Ct. App. 2012). The State bears the burden of proving that an exception to the warrant requirement exi sted at the time of the search. Id

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[17] A valid inventory search is an exception to the warrant requirement. Taylor , 842 N.E.2d at 330 (citing South Dakota v. Opperman , 428 U.S. 364, 372 (1976)). Police are permitted to conduct a warrantless search of a lawful ly impounded vehicle if the search is designed to produce an inventory of the vehicle ’ s contents. Fair v. State , 627 N.E.2d 427, 431 (Ind. 1993). The rationale for an inventory search is three

- fold: (1) protection of private property in police custody; (2) protection of police against claims of lost or stolen property; and (3) protection of police from possible danger. Taylor, 842 N.E.2d at 330

- 31.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 8 of 17 [18] “ As in all Fourth Amendment cases, the test of constitutionality in inventory cases is reasonableness. ” Fair, 627 N.E.2d at 431

. In determining the reasonableness of an inventory search, we examine all the facts and circumstances of the case. Id

. We consider the propriety of the impoundment giving rise to the search and the scope of the inventory search itself. Id . The search must be conducted pursuant to and in conformity with standard police procedures. Faust v. State , 804 N.E.2d 1242, 1244

- 45 (Ind. Ct. App. 2004), trans. denied

. Evidence of established local policy and procedure is required “ to ensure that the i nventory is not a pretext for a general rummaging in order to discover incriminating evidence. ” Edwards v. State , 762 N.E.2d 128, 134 (Ind. Ct. App. 2002) (quoting Florida v. Wells , 495 U.S. 1, 4 (1990)) (internal quotation marks omitted), aff ’ d on reh ’ g , 768 N.E.2d 506, trans. denied

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[19] Impounding a vehicle is proper when authorized by statute or done pursuant to the community caretaking function of the police. Taylor , 842 N.E.2d at 331. Indiana Code section 9

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- 43 provides in relevant part: (a) ... [A] l aw enforcement officer authorized to enforce motor vehicle laws who discovers a vehicle required to be registered under this article that does not have the proper certificate of registration or license plate: (1) shall take the vehicle into the officer ’ s c ustody; and (2) may cause the vehicle to be taken to and stored in a suitable place until: (A) the legal owner of the vehicle can be found; or (B) the proper certificate of registration and license plates have been procured.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 9 of 17 Whitley concedes that impoundme nt of the truck was proper.

[20] His concession as to the propriety of impoundment notwithstanding, Whitley argues that the search conducted pursuant to the impoundment was unreasonable. He contends that the inventory was a pretextual se arch for evidence of a c rime, which is established by the fact that IMPD did not follow standard police procedures.

[21] “ A n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. ” Florida v. Wells , 495 U.S. 1, 4 (1990). “‘ The policy or practice governing inventory searches should be designed to produce an inventory. ” Id

. “ The individual police officer must not be allowed so much latitude that inve ntory searches are turned into ‘ purposeful and general means of discovering evidence of c rime[.] ’” Id

. (quoting Colorado v. Bertine , 479 U.S. 367, 376 (1987)).

[22] Inventory searches performed in conformity with standard police procedures are reasonable under the Fourth Amendment, but the State must present more than the conclusory testimony of a police officer that the search was conducted as a routine inventory. Edwards , 762 N.E.2d at 133. An evidentiary basis must exist for evaluating whether an inventory search was performed in conformity with standard police procedures, and the circumstances s urrounding the search must indicate that the search was conducted pursuant to established procedures. See id

.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 10 of 17 [23] However, f ailure to follow established police policy does not necessarily establish that the inventory was a pretext. See Jackson v. State , 890 N.E.2 d 11, 19 (Ind. Ct. App. 2008). “ Inventory searches are not always unreasonable when standa rd procedures are not followed. ” Id

. (citing United States v. Mayfield , 161 F.3d 1143, 1145 (8th Cir. 1998); see also Whren v. United States , 517 U.S. 806, 816 (1996) ( stating “ it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. ” ).

“ [T]o defeat a charge of pretext the State must establish the existence of sufficient regulations and that the search at issue was conducted in conformity with them. ” Fair , 627 N.E.2d at 435.

[24] In Jackson , we concluded that the inventory search did not violate the de fendant ’ s Fourth Amendment or Article 1, Section 11 rights because the arresting and assisting officer generally followed the police department ’ s towing and impound policy. 890 N.E.2d at 19. We rejected the defendant ’ s challenge to the inventory search bec ause documentation of the inventory search was not completed on the “ inventory/tow card ” as required in the police department policy but on a form titled “ Police Officer/Rental Property Report. ” Id

. at 18. W e also concluded that the fact the assisting offi ce r completed the inventory

was merely a minor deviation from the department ’ s policy; therefore, the inventory search was not invalid and no circumstances existed t hat would lead us to conclude that the inventory was a pretext for general rummaging. Id

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- 19.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 11 of 17 [25] More recently , our court examined an inventory search in Wilford v. State , 31 N.E.3d 1023, 1029 (Ind. Ct. App. 2015), trans. pending

. In that case, IMPD initiated a traffic stop because Wilford ’ s vehicle had multiple cracks in the windshield and other obvious equipment problems. The officer also discovered that Wilford ’ s driver ’ s license was suspended. IMPD impounded the vehicle be cause of its unsafe condition. A n IMPD officer conducted an inventor y search at the scene prior to towing and discovered a stolen handgun in the front center console

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[26] At the hearing , the IMPD officer testified concerning the department ’ s standard procedure when performing inventory searches, but the policy itself was not offere d into evidence. The officer who performed the search described an inventory search as “ a department policy that when we take custody of the vehicle we go through and we ’ re checking for valuables. ” Id. at 1033. The officer then outlined the inventory searc h process: The first thing I do is I look under the front seat uh, I check the uh, center console, I go to the rear driver side, I check the compartment on the rear driver side. I go around the other side of the vehicle and I check the front passenger, I c heck the rear passenger area and then I check the trunk.
Id. (record citation omitted). W e held that the officer ’ s testimony was sufficient to show that the search was part of established IMPD procedures. Id. Cf. Edwards , 762 N.E.2d at 133 (concluding that the inventory search was improper because “the record d[id] not include the substance of any police department policy regarding inventory searches, or even indicate there is such a policy”).Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 12 of 17 [27] In this case, IMPD ’ s General Order 7.3 on Towing and Impounding Vehicles was admitted into evidence , and the document specifically describes the steps an IMPD officer is required to take when impounding a vehicle. The order directs IMPD officers to perform an inventory search prior to impounding a vehicle and make a de tailed listing of all items found during the search. Ex. Vol., State ’ s Ex. 1.

[28] Officer Huddleston searched the interior of the truck, the bed of the truck, the glove box , and containers inside the truck. Tr. pp. 30

- 31. However, he did not complete any paperwork related to the traffic sto p or subsequent investigation. Instead, he told Officer Lantzer what he found, and Officer Lantze r described those items in the probable cause affidavit. After the search, an evidence technician took photographs of the t ruck ’ s interior.

[29] During cross

- examination, Officer Huddleston reviewed the photographs and admitted that he failed to report all personal items in the truck such as a book, spare tire, jumper cables, tools, an amplifier, and rims. Tr. pp. 33

- 35. These it ems were also not listed in the probable cause affidavit. Officer Huddleston testified that it was “ not typical ” for him “ to make notes of such things like property in the vehicle ” when he is the assisting officer. Tr. p. 35. He believed that Officer Lantz er “ would see to that[.] ” Id

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[30] Officer Lantzer testified that he asked Officer Huddleston to perform the inventory search. Officer Huddleston told Officer Lantzer that he found a decorative box that “ contained what he believed to be a controlled substance

. ”Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 13 of 17 Tr. p. 11. Officer Huddleston then asked Officer Lantzer to view the vehicle and

“ pointed out that there were other things in the vehicle. ” Tr. p. 12. Officer Lantzer admitted that he did not list the items in the vehicle in his field notebook as requir ed in IMPD General Order 7.3 on T owing and Impounding Vehicles. He stated he listed the items in the probable cause affidavit, but the only items listed besides the decorative box and its illegal contents were auto parts, a remote
- control car, and trash. A ppellant ’ s App. p. 15.

[31] Further, Officer Lantzer testified that although he was aware that the IMPD Order required officers to list the items found in an inventory search in the officer ’ s personal notebook, his general practice is to l ist the items on the t ow slip. Tr. p. 17. However, Officer Lantzer did not list any items on the tow slip in this case.

[32] T he circumstances in this case present more than a minor deviation from IMPD ’ s General Order 7.3 on Towing and Impounding Vehicles. 2 Officer Lantzer was familiar with IMPD’s policy for inventorying the contents of an impounded vehicle and in accordance with that policy, he asked Officer Huddleston to pe rform an inventory search. Yet, t he officer s failed to complete an accurate inventory of the truck ’ s cont ents, and Officer Lantzer listed only

2 Whitley urges our court to adopt a bright

- line rule that an inventory search is improper if any deviation from standard police policy exists. However, our courts have not adopted this approach , and we are not co mpelled to do so in this case. It is worth reiterating that “[b]y performing inventories at the scene and by failing to follow the written policies of their departments, officers risk suppression of any evidence recov ered during such inventories.” Jackson v. State , 890 N.E.2d 11, 19 (Ind. Ct. App. 2008). Moreover, IMPD’s continued failure to abide by its own policy for impounding and inventorying the contents of vehicles erodes the public’s confidence in our law enforcement officers and in rule of law, in g eneral

.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 14 of 17 certain items found in the truck in the probable cause affidavit. It is apparent that a fter the O fficer Huddleston found the contraband in the “ decorative box , ” he ceased inventorying the remaining contents of the truc k

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[33] However, ou r supreme court has stated that “ so that as long as the impoundment is pursuant to the community caretaking function and is not a mere subterfuge for investigation, the coexistence of investigatory and caretaking motives is permissible

. ” Fair , 627 N.E.2d at 436 n.7. See also Moore v. State , 6 37 N.E.2d 816, 820 (Ind. Ct. App. 2 004) (holding that the fact that an officer ’ s suspicion arose during the course of an inventory search did not render the search pretexual ) , trans. denied

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[34] Officer Lantzer’s decision to impound the truck was unquestionably reasonable. No evidence suggests that when Officer Huddleston began the search at Officer Lantzer’s request that he was lo oking for evidence of a crime. See Colorado v. Bertine , 479 U.S. 3 67, 372 (1987) ( observing “ there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation ” and holding that evidence obtained during an inventory search was admissible )

. The Sta te is also fortunate that the photographs taken of the interior of the truck by the evidence technician provided a photographic record of its contents. For all of these reasons, we conclude that Officers Huddleston ’s and Lantzer’s failure to list all items found in the truck in the officer ’ s personal notebook as required by IMPD policy, did
not , in itself, render the sear ch pretextual, and therefore, the search was reasonable under the Fourth Amendment.Court of Appeals of Indiana | Opinion 49A02

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### Article 1, Section 11
[35] Article 1, Section 11 of the Ind iana Constitution provides, “ [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated[.] ” Although the language of Section 11 is virtually identical to its Fourth Am endment counterpart, our supreme court has independently interpreted and applied Section 11. Mitchell v. State , 745 N.E.2d 775, 785

- 86 (Ind. 2001). As to inventory searches in particular, we explained in Wilford : When examining the constitutionality of a s earch, the ultimate standard dictated by Article 1, Section 11 is the same as that of the Fourth Amendment: reasonableness of the police conduct. As under the Fourth Amendment, a valid inventory search is a recognized exception to the Article 1, Section 11 warrant requirement. However, the tests for determining a rights violation differ under the two provisions. Under the Indiana Constitution, the State must show that an inventory search was reasonable in light of the totality of circumstances.
31 N.E.3d at 1033

- 34 (citations omitted).

[36] Notwithstanding the independent analytical framework of Section 11, 3 “ our supreme court has found that the factors that speak to the reasonableness of an inventory search under the Fourth Amendment are also relevant to the

3 The reasonableness of a search or seizure turns on a balance of: “1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enf orcement needs.” Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005).Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 16 of 17 rea sonableness of an inventory search under Article 1, Section 11. ” Id . at 1034 (citing Taylor , 842 N.E.2d at 334). For this reason, the State relies on its Fourth Amendment analysis to also support i t s argument that the inventory search was reasonable under Article 1, Section 11. 4 Appellee ’ s Br. at 19.

[37] Officers Lantzer and Huddleston failed to comply with the IMPD ’ s standard policy for inventorying the contents of an impounded vehicle. The officers did not record all personal items in the truck , and Officer Lantzer listed only certain items i n the probable cause affidavit. However, we must still consider the reasonableness of the inventory search despite the officers ’ failure to follow IMPD General Order 7.3 on Towing and Impounding Vehicles.

[38] Officer Lantze r ’ s decision to impound the truck was indisputably proper , and therefore, pursuant to IMPD policy, the officers were required to perform an inventory search. The search was also minimally intrusive under the se circumstances. For these reasons, and the reas ons the inventory search was reasonable under the Fourth Amendment, Officer Lantzer’s decision to impound and conduct an inventory search of the truck Whitley was driving was reasonabl e under Article 1, Section 11. See Taylor , 842 N.E.2d at 334; Wilford , 3 1 N.E.3d 1023. Once again, however, as with our Fourth Amendment analysis, we remind all law enforcement officials that substantial compliance with administrative policies is called for if they desire searches to withstand

4 Whitley argues that the State’s response to his Article 1, Section 11 argument amounts to failure to argue the issue, and therefore, the prima facie error standard should apply. But the State cited appropriate caselaw, the Litchfield test, and summarized the argument it raised in its Fourth Amendment analysis.Court of Appeals of Indiana | Opinion 49A02

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- 50 | December 7, 2015 Page 1 7 of 17 review by the courts and, more im portantly, if they expect citizens to have confidence in law enforcement officials and in rule of law, in general.


### Conclusion
[39] The search of the truck was reasonable under the Fourth Amendment and Article 1, Section 11. We therefore affirm the trial court’s denial of Whitley’s motion to suppress.

[40] Affirmed

. Vaidik, C.J., and Barnes, J., concur.