Court of Appeals of Indiana | Memorandum Decision 58A01

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY S FOR A PPELLANT Jeffrey A. Baldwin Tyler D. Helmond Voyles Zahn & Paul Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIA NA
Jamie Cole, Appellant

- Petitioner ,
v. 

### State of Indiana, Appellee

- Respondent

. October 24, 2017 Court of Appeals Ca se No. 58A01

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### Barteau , Senior Judge 

## Statement of the Case

[1] Jamie Cole appeals the denial of his petition for post

- conviction relief. We affirm.Court of Appeals of Indiana | Memorandum Decision 58A01

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## Issue

[2] Cole raises one issue, which we restate as: whether the post

- conviction court erred in denying his claim of ineffective assistan ce of counsel.



## Facts and Procedural History

[3] On May 23, 2012 , a n officer employed by the Rising Sun Police Department (RSPD) stopped a Jeep in Ohio Cou nty. Katherine Cole (Katherine) was driving. Her husband, Jamie Cole, and their infant child were in the vehicle

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[4] Other officers arrived at the scene to assist. They arrested Katherine for driving with a suspended license, driving with an expired licens e plate, and operating a vehicle without proof of financial responsibility. Cole also lacked a valid driver’s license. T he officers impound ed the Jeep, and an officer conducted an inventory search of its contents , including Katherine’s purse. The purse contained fifty (50) grams of marijuana, thirty

- three (33) pills that were later identified as various controlled substances (all opioid painkillers) , a pill grinder, a plastic straw, and a set of digital scales.

[5] The police took Cole into custody after finding the contraband. Detective Norman Rimstidt of the RSPD questioned Cole and Katherine separately. Katherine claimed the mari juana and pills belonged to her and that “Ja m i e had nothing to do” with those items. Tr. Ex. Vol., Petitioner’s Ex. 1. Similarly, Cole denied any involvement with the marijuana and controlled substances, claiming Katherine “had a pill problem” and had “snorted pills and smoked marijuana in the past.” Id . After questioning Cole and Katherine, the policeCourt of Appeals of Indiana | Memorandum Decision 58A01

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obtained searc h warrants for an apartment and a unit at a storage facility, as well as for Katherine’s phone.

[6] On May 25, 2012, the State charged Col e with dealing in cocaine or a n arc otic d rug, a Class B f

elony; d ealing in a s chedule I, II, or III c ontrolled s ubstance, a Class B f elony; d ealing in a s chedule IV c ontrolled s ubstance, a Class C f elony; d ealing in m arijuana, a Class D f elony; p ossession of c ocaine or a n arcotic d rug, a Class D f

elony; p ossession of a c ontrolled s ubstance, a Class D f elony;
p ossession of m arijuana, a Clas s D felony; possession or use of a l egend d rug or p recursor, a Class D f

elony; p ossession of p araphernalia, a Class A

m isdemeanor; m aintaining a c ommon n uisance, a Class D f elony; and n eglect of a d ependent, a Class D f elony. The State als o filed a n habitual offender sentencing enhancement.

[7] Cole and the State negotiated a plea agreement. Pursuant to the agreement, Col e plead ed guilty to dealing in a narcotic drug, a Class B felony. Sentencing would be left to the discretion of the trial c ourt , and the State promised not to recommend a specific sentence

. In turn, Cole agreed to waive his right to appeal the sentence imposed by the trial court. Finally, t he State agreed to dismiss all other charges and the habitual offender sentencing enhancement.

[8] On April 26, 2013, the court sent enced Cole to twenty (20) years . Per the terms of his plea agreement, Cole did not appeal his sentence.Court of Appeals of Indiana | Memorandum Decision 58A01

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[9] On October 20, 2014, Cole filed a pro se petition for post

- conviction relief. He later obtained counsel, who amended the petition for post

- conviction relief to raise a claim of ineffective assistance of counsel. The post
- conviction court held an evidentiary hearing on October 7, 2016. Cole’s trial counsel did not testify at the hearing

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[10] After the hearing, t he post

- conviction court denied Cole’s petition, concluding, “Petitioner has failed to show that his trial attorney’s performance fell below an objective standard of reasonableness, and that this deficient performance prejudiced him.” Appellant’s App. Vo l. II, p. 126. T his appeal followed.



## Discussion and Decision

[11] In post

- conviction proceedings, the petitioner bears the burden of establishing the grounds for relief by a preponderance of the evidence. Helton v. State , 907 N.E.2d 1020, 1023 (Ind. 2009). T o prevail on appeal from the denial of post

conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the tr ial
court. Hollowell v. State , 19 N.E.3d 263, 269 (Ind. 2 014). We will not reweigh the evidence or judge the credibility of witnesses. Wine v. State , 637 N.E.2d 1369, 1373 (Ind. Ct. App. 1994), trans. denied . We review the trial court’s findings for clear error but do not defer to its conclusions of law. Talley v. State , 51 N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied

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[12] Cole argues his trial counsel rendered ineffective assistance by failing to file a motion to suppress all evidence discovered through the seizure of the Jeep andCourt of Appeals of Indiana | Memorandum Decision 58A01

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the inventory search, which led to the discovery of contraband in Katherine’s purse . He claims that the officers acted unconsti tutionally in impounding the Jeep and in conducting the search

. Cole further claims that if his counsel had filed a motion to suppress , it would hav e been successful, and he would not have needed to plead guilty. The State responds that Cole had no grounds to object to the inventory search, and in any event the impoundment of the Jeep and the inventory search did not infringe upon his rights.

[13] To esta

blish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel performed deficiently and the deficiency resulted in prejudice. Helton , 907 N.E.2d at 1023. Counsel performs deficiently when his or her work falls below an objective standard of reasonableness based on prevailing professional norms. Polk v. State , 822 N.E. 2d 239, 245 (Ind. Ct. App. 2005), trans. denied

. Counsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Talley , 51 N.E.3d at 303

. As for the test for prejudice, the petitioner must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Pol k , 822 N.E.2d at 245.

[14] To prevail on an ineffective assistance of counsel claim based upon counsel’s failure to file a motion , such as a motion to suppress , the petitioner must demonstrate that the motion, if filed, would have been successful. Talley , 51 N.E.3d at 303

. W e must consider whether the seizu re of the vehicle a nd the

se arch of Katherine ’s purse was unconstitutional as to Cole.Court of Appeals of Indiana | Memorandum Decision 58A01

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[15] The Fourth Amendment provides in relevant part, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall no t be violated.” Similarly, a rticle I, sectio n 1 1 of the Indiana Constitution provides, in relevant part: “the right of the people to be secure in their persons, houses, papers, and effects , against unreasonable search or seizure, shall not be violated.”

[16] A key question is whether Cole could have raised a valid objection to the admission of evidence obtained from the search of Katherine’s purse. For purposes of the Fourth Amendment, a defendant may not challenge the constitutionality of a search unless he or she can demonstrate that he or she had a reasonable expectation of privacy in the place to be searched. Sidener v. State , 55 N.E.3d 380, 384 (Ind. Ct. App. 2016). A defendant aggrieved by an illegal search and seizure only through the introduction of prejudicial evidence secured by the search of a third person’s premises has not suffered infringement upon his or her Fourth Amendment rights. Bradley v. State , 4 N.E.3d 831, 839 (Ind. Ct. App. 2014) , trans. denied

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[17] In this case, when Detective Rimstidt questioned Cole , he “denied any involvement with the drugs.” Tr. Ex. Vol., Petitioner’s Ex. 1, p. I nstead, he stated “Kathe rine had a pill problem and that she had snorted pills and smoked marijuana in the past.” Id. Katherine told Detective Rimstidt that Cole had nothing to do with the contraband. Detective Rimstidt further testified that he had asked Cole if anything in the purse belonged to him, and Cole said no. In addition, the officer stated that aside from a prescription medicine bottleCourt of Appeals of Indiana | Memorandum Decision 58A01

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bearing Cole’s name, he did not see anything in the purse that appeared to belong to Cole.

[18] Cole testified during the post

- conviction hearing that he lied when he originally told the detective that he had no interest in the purse. Cole further testified that he regularly stored personal items in Katherine’s purse and sometimes carried it with him when Katheri ne was not around. The post

- conviction court found Cole’s testimony on this issue to be “unpersuasive.” Appellant’s App. Vol. II, p. 126. We may not second

- guess the court’s credibility determinations. We conclude that Cole has failed to demonstrate th at he had a reasonable expectation of privacy in Katherine’ s purse. See Rawlings v. Kentucky , 448 U.S. 98, 105, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980) (defendant failed to prove he had expectation of privacy in acquaintance ’s purse, in which he ha d hidden controlled substances)

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[19] Turning to the Indiana Constitution, as a general rule a challenge to a search under a rticle I, section 11 “differs in some respects from standing to assert a Fourth Amendment claim.” Campos v. State , 885 N.E.2d 590, 598 (Ind. 2008). T he Indiana Constitution provides protections for claimed possessions regardless of the defendant’s interest in the place where the possession was found. Id

. Nevertheless, it remains true that “if the facts fail to establish that the alleg ed illegal search and seizure actually concerned the person, house, papers or effects of the defendant,” he or she will not have standing to challenge the alleged illegality. Peterson v. State , 674 N.E.2d 528, 534 (Ind. 1996).Court of Appeals of Indiana | Memorandum Decision 58A01

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[20] In this case, viewing the fa cts in the light most favorable to the judgment, at the time of the police investigation Cole disclaimed any interest in the purse or its
contents

. Later, d uring the post

- conviction hearing he claimed an interest in the purse and in a prescription bottle bearing his name that was found in the purse, but the post

- conviction court did not find Cole’s testimony to be credible. We cannot conclude that Cole demonstrated an ownership interest in the purse for p urposes of a rticle I, section 11 , and he thus lacke d standing to challenge a search of the purse.

[21] Even if Cole had grounds to raise constitutional challenges to the s earch and seizure of the Jeep and its contents , Cole would have had to demonstrate that the impoundment and the subsequent inventory search w as inappropriate. The Fourt h Amendment, as applied to the s tates through the Fourteenth Amendment, generally requires a warrant for a search to be considered reasonable. Jackson v. State , 890 N.E.2d 11, 17 (Ind. Ct. App. 2008). One well

recognized excep tion to the warrant requirement is a valid inventory search of a vehicle following a valid impoundment. Id. Impoundment is proper when it is part of the routine administrative caretaking function of the police or is otherwise authorized by statute. Id.

[22] Indiana Code section 9

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a law 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 registrat ion or license plate:Court of Appeals of Indiana | Memorandum Decision 58A01

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(1) shall take the vehicle into the officer’s custody; 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 a nd license plates have been procured.
[23] There is no dispute that Katherine and Cole’s vehicle did not have a proper license plate. As a result, the officer was required by statute to take the Jeep into his custody , and he properly arranged to have it towed. Cole acknowledges he did not have a valid license but argues the officer should have let him call his roadside assistance program to have the vehicle towed without being impounded. A llowing Cole to tow the Jeep without impoundment would
not necessarily have fulfilled Indiana Code section 9

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- 43 ’s goal of ensuring the vehicle is not driven again until proper license plat es have been pro cured. The officers’ decision to impound the vehicle did not violate the Fourth Am endment.

[24] Next, to be valid under the Fourth Amendment , an inventory search must be conducted pursuant to and in conformity with standard police procedures. Whitley v. State , 47 N.E.3d 640, 645 (Ind. Ct. App. 2015) , trans. denied

. Inventory searches serve three purposes: (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. Id

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must not be a ruse for general rumma ging to discover incriminating evidence. Id. (quotation omitted).

[25] In the current case, Cole does not argue that the officers failed to follow standard inventory procedures. Rather, he claims the of ficers should have simply given him Katherine’s purse without searching it. As the petitioner, Cole bore the burden of proving that the officers failed to comply with established police department policies in conducting the search. He failed to submit any evidence to the post

- conviction court regardi ng relevant department policies on inventory searches and whether the officers complied with them. The department’s inventory policy reasonably could have required the officers to search the purse. See

, e.g., Moore v. State , 637 N.E.2d 816, 820 (Ind . Ct. App. 1994) (considering a police department’s impoundment policy that required an “[i]nventory of all items in the vehicle, which are not regular parts or accessories to the car”), trans. denied

. Indeed, i n this case the RSPD issued a receipt for the pur se and its contents. Cole has failed to demonstrate that the inventory search violated the Fourth Amendment.

[26] Turning to a rticle I, section 11 of the Indiana Constitution, as a general rule the Indiana Supreme Court interprets and applies t hat provision indep endently from the Fourth Amendment. Whitl ey , 47 N.E.3d at 648. The purpose of

a rticle I, section 11 is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Mitchell v. State , 745 N.E.2d 775, 786 (Ind.Court of Appeals of Indiana | Memorandum Decision 58A01

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20 01). In resol ving challenges under section 11 , courts must consider whether the police intrusion was reasonable under the totality of the circumstances. Id. We consider: (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 enforcement needs. Holloway v. State , 69 N.E.3d 924, 931 (Ind. Ct. App. 2017), trans. denied

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[27] In this case, the officer s’ decision to impound the Jeep was authorized by
statute , and they were aware that the driver, Katherine, had committed several criminal offenses. Furthermore, t he seizure was a minimal, reasonable intrusion on Cole’s right of ownership in the Jeep becau se he was not licensed to drive, and without proper license plates the vehicle was not drivable in any
event. Further, impoundment served important law enforcement needs , namely ensuring the Jeep was not driven again without proper plates , insura nce , and a properly licensed driver

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[28] The inventory search was also reasonable under the totality of the circumstances. Again, the officers were already aware that Katherine had committed offenses. Based on the record before us, the intrusion caused by the search was minimal because there is no indication that the officers permanently seized anything other than the contraband. Finally, the officers needed to conduct the search to ensure that the Coles’ personal property would be takenCourt of Appeals of Indiana | Memorandum Decision 58A01

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care of during impoundment and to protect themselves from possible claims of theft. See Whitley , 47 N.E.3d at 649 (impoundment of car in roadway and inventory search of vehicle, which led to discovery of contraband, did not violate a rticle I, section 11).

[29] In summary, i f Cole’s trial attorney had filed a motion to suppress evidence obtained from the inventory search on grounds that the search and seizure violated Cole’s rights under the Fourth Amendment a nd a rticle I, section 11 , that motion would not h ave prevailed because Cole did not have an expectation of privacy in Katherine’s purse or standing to challenge that portion of the inventory search

. Furthermore, the impoundment of the vehicle and the search of the purse did not infringe upon Cole’s constitu tional protections against

un constitutional search and seizure. As a result, the post

- conviction court did not err in rejecting Cole’s claim of ineffective assistance, because prevailing professional norms do not require counsel to file a motion that woul d not have been granted

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## Conclusion

[30] For the reasons stated above, we affirm the judgment of the trial court.

[31] Affirm ed

. K irsch, J., and Bailey, J., concur.