A TTORNEYS FOR A PPELLANT

Ruth Johnson Matthew D. Anglemeyer Marion County Public Defender , Appellate Division Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Joby D. Jerrells Deputy Attorney General Indianapolis, Indiana 

# In the 

# Indiana Supreme Court

No. 49S02

- 1010

- CR

- 00619 C EDRIC L EWIS , Appellant ( Defendant below),

v. S TATE OF I NDIANA , Appellee ( Plaintiff below)

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Appeal from the Marion Superior Court, No. 49G23

- 0805

- FB

- 124017

The Honorable Steven R. Eichholtz The Honorable Michael Jensen , Magistrate

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02

- 0908

- CR

- 000736

Ju ly 11 , 2011 Shepard, Chief Justice.
Appellant Cedric Lewis was convicted of unlawful possession of a firearm by a serious violent felon. He challenges the admission of the handgun found in his car and the appropriaten ess of his sentence. We affirm, co ncluding that the gun in question was not the product of a search and that the sentence is appropriate.2 Facts and Procedural History

Officer Romeo Joson of the Indianapolis Metropolitan Police Department stopped Cedric Lewis‟s vehicle in the 1700 block of North Sherman Drive after observing Lewis speeding and changing lanes without signaling. Lewis was accompanied by a passenger. Lewis did not have a dr iver‟s license, but was able to produce a State identification card.

Joson checked Lewis‟s status with the Bureau of Motor Vehicles and discovered that his driver‟s license had been suspended. He ordered Lewis out of the vehicle and placed him under

arr est for driving with a suspended license. Believing that the vehicle would be towed, Joson told the passenger to exit the vehicle. As Joson put it , “I went into the vehicle because the driver‟s side door was still open. Stuck my head in there to also te ll the passenger to get out of the vehicle, that Mr. Lewis was being [sic] under arrest for driving while suspended with the intent of possibly towing the vehicle.” (Tr. at 16.) When he stuck his head in the car , Joso n immediately saw a handgun wedged b etween the driver‟s seat and the center console.
In advance of trial and during trial , Lewis moved to suppress the gun , arguing that Joson violated the Fourth Amendment by sticking his head into the car to search for weapons. The court later overruled L ewis‟s object ion to the admission of the gun and found him guilty of unlawful possession of a firearm by a serious violent felon. 1 Lewis qualified as a serious violent felon based on his 1997 conviction for attempted battery, as a class C felony, for shoo ting at a police officer. The court sente nced him to twelve years in pri son.
The Court of Appeals reversed , in a decision that produced three opinions. Lewis v. State , 931 N.E.2d 875 (Ind. Ct. App. 2010 ). We granted transfer, 940 N.E.2d 828 (Ind. 2010) (table), thereby vacating the decision of the Court of Appeals.

1 Ind. Code § 35

- 47

- 4

- 5 (2004).3 Standard of Review
We review the constitutionality of a search or seizure de novo . We consider conflicting evidence most favorably to the trial court‟s ruling. We defer to the trial court‟s factual determinations and overturn them only if clearly erroneous. Campos v. State , 885 N.E.2d 590 ( Ind. 2008).

I. The Officer’s Actions Were No t a Search

Lewis argues that Joso n‟s discovery of the gun was a search impermissible under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. Although both provisions use the same language, they are subject to different analy sis. Litchfield v. State , 824 N.E.2d 356 (Ind. 2005). Both provisions are triggered only when the government engages in a search. We conclude that Joso n‟s discovery of the gun did not constitute a search

.

“A „ search ‟ involves an exploratory investigati on, prying into hidden places, or a looking for or seeking out.” Hardister v. State , 849 N.E.2d 563, 572 (Ind. 2006). Nothing like that occurred here. We stated long ago that “[i]t is not a search in any legal or colloquial sense for an officer to look into an automobile standing on the road side.” Koscielski v. State , 199 Ind. 546, 5 49

– 50, 158 N.E. 902, 904 (1927). Since then we have held multiple times that there is no search when police look into cars during traffic stops. E.g. , Alcon v. State , 255 Ind. 491, 265 N.E.2d 413 (Ind. 1970).

In Avant v. State , 528 N.E.2d 74 (Ind. 1988 ), for example, the police pulled a car over and an officer shined his flashlight in the window and observed stolen property on the backseat. Discovering items in plain vie w is not a search, and the officer did not pick up, open, or pull back anything to see the stolen items. Id. at 76. We held that “[o]nce an officer properly stops a vehicle, merely looking through the vehicle to see that which is inside is not a search.” Id.4

The trial court found that the driver‟s door was open when Joso n approached th e car. (Tr. at 45.) Joso n lowered his head to talk to the passenger, but the court was not sure whether his head actually entered the car. (Tr. a t 45.) The court found that Joso n‟s intention was to talk to the passenger and not to search. (Tr. at 45

– 46. ) It concluded that Joso n was not searching when he saw the gun in plain view.
We agree with the trial court. Joson needed to speak with the passenger and lowered his head down to her level. This is a perfectly reasonable thing to do when speaking with someone in a car. In the process, he saw a gun that was plainly visible between the driver‟s seat and center console. As in Avant , Joson did not open any compartments, move any objects, or pull back anything to see the gun. It was just there.

The Sentence was Appropriate

Lewis also asks us to shorten his sentence. This C ourt has the power to revise sentences under Article 7, Section 4 of the Indiana Constitution, but we do so only when “after due consideration of the trial court‟s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offende r.” Ind. Appellate Rule 7(B). Unlawful possession of a firearm by a serious violent felon carries a minimum sentence of six years and a maximum sentence of twenty years. Ind. Code § 35

- 50

- 2

- 5 (2004). The advisory sentence is ten years. Id.

The trial c ourt found both mitigating and aggravating circumstances . Lewis is a dangerous felon who has previously been convicted for shooting at a police officer. He also had other prior convictions, though none during the last eight years. Lewis argues that we s hould reduce his sentence because his crime did no damage to people or property. (Appellant‟s Br. at 16.) It is fortunate that no one was hurt in this incident. Lewis was also employed at the time of this crime. Taking these points as a whole, we are n ot persuaded that the trial court‟s sentence, just two years above the advisory, was inappropriate.5 Conclusion
We affirm the judgment of the trial court

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Dickson, Sullivan, Rucker, and David, JJ., concur.