Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018 Page 1 of 15

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.

ATTORNEY FOR APPELLANT

Matthew M. Kubacki

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Keyno W. Thomas,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 22, 2018

Court of Appeals Case No.

49A02-1708-CR-1853

Appeal from the Marion Superior 

Court

The Honorable Amy Jones, Judge

The Honorable David Hooper, 

Magistrate

Trial Court Cause No.

49G08-1611-CM-43294

Brown, Judge.
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[1] Keyno W. Thomas appeals his conviction for carrying a handgun without a 

license as a class A misdemeanor. Thomas raises one issue which we revise 

and restate as whether the trial court abused its discretion in admitting certain 

evidence. We affirm.

Facts and Procedural History

[2] At approximately 1:45 a.m. on November 4, 2016, Speedway Police Officer 

Robby Harris observed Thomas operating a vehicle that had a license plate light 

that was not illuminated. Officer Harris used his computer to check the 

registered owner’s driving status and discovered that Thomas was the registered 

owner and his license was suspended. Officer Harris turned on his lights in an 

attempt to initiate a traffic stop, and Thomas’s car traveled slowly for the 

equivalent of about another three or four blocks. 

[3] When Thomas did eventually stop, Officer Harris asked Thomas to exit the car 

and handcuffed him “due to the fact that [he] wasn’t sure what his intentions 

were being that it took so long to stop.” Transcript Volume II at 22. Officer 

Harris then patted Thomas down and did not find any weapons. He asked 

Thomas for his identification, and Thomas said it was in his wallet and that 

Officer Harris could retrieve it. Officer Harris retrieved Thomas’s 

identification, observed a gun permit, and asked Thomas if he had a gun on 

him. Thomas told Officer Harris that the gun was in the center console of the 

vehicle. 
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[4] Officer Harris and another officer were on the scene for a brief time attempting 

to locate Thomas’s apartment so that his wife could come and retrieve the 

vehicle, but were unable to do so, and impounded the vehicle. Officer Harris 

performed an inventory search within a few minutes after placing Thomas 

under arrest for driving while suspended. Officer Harris found a semiautomatic handgun loaded with sixteen rounds of ammunition in the center 

console. After determining that the permit had expired, Thomas said he had 

applied for a new permit, Officer Harris had dispatch check through their 

record system, and dispatch informed him that Thomas had been denied his 

request for a lifetime handgun permit. 

[5] On November 4, 2016, the State charged Thomas with carrying a handgun 

without a license and driving while suspended as class A misdemeanors. On 

February 22, 2017, Thomas filed a motion to suppress the evidence arguing, in 

part, that he was in custody and that any consent given to search his vehicle 

was invalid given the constraints imposed upon police by Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d 

634 (1975). 

[6] On February 28, 2017, the court held a hearing. Officer Harris testified that,

when he observed the gun permit, he thought he may have missed a gun on the 

pat-down and asked Thomas “if he had a gun with him . . . .” Transcript 

Volume II at 8. Officer Harris testified that it was the policy of the Speedway 

Police Department to tow vehicles if there was no licensed driver at the scene 

and that he had brought with him the Speedway Police Department Towing 
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Policy, which the court admitted without objection.

1

 The following exchange 

then occurred:

[Prosecutor]: And to bring to the Courts attention, removal and 

towing policy from private property under paragraph H that 

officers are entitled to remove or impound any vehicle found 

upon a street, highway or roadway under the following 

conditions. Per H, any vehicle that is left unattended to the 

removal of an arrested operator and –

Q – So, Officer Harris, you followed the Speedway Towing 

Policy in this case?

A Yes.

Id. at 12. The court took the matter under advisement. 

[7] On April 25, 2017, the court entered an order denying Thomas’s motion to 

suppress. The order states in part:

1. That the following issues are before the Court:

a. Whether or not questions regarding a handgun without 

advising [Thomas] of Miranda and the answers obtained 

were unlawful.

b. Whether or not the inventory search of [Thomas’s]

vehicle was unlawful.

* * * * *

 

1 The State refers to the Speedway Police Department Towing Policy as “Sup. St. Ex. 1.” Appellee’s Brief at 

18. Thomas refers to the policy as State’s Exhibit 1 at one point as well. See Appellant’s Brief at 10. The 

record does not contain a copy of the policy.
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6. [Thomas] argues that because he was placed in handcuffs, he 

was “in custody” for purposes of Federal and State 

Constitutional tests, and that any consent given to search a 

vehicle was invalid based upon: Miranda, Arizona v. Gant, 556 

U.S. 332 (2009), and Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). 

7. Officer Harris did not issue Miranda prior to asking whether or 

not [Thomas] had a gun.

8. Miranda warnings are based upon the Fifth Amendment of the 

United States Constitution and require a suspect to be informed 

of his right to the presence and advice of counsel during a 

custodial interrogation by law enforcement. Miranda requires 

that officers advise a person who has been “taken into custody or 

otherwise deprived of his freedom of action in any significant 

way” that he has the right to remain silent and that any statement 

he makes may be used as evidence against him. Miranda v. 

Arizona, 384 U.S. 436 (1966).

9. The Miranda safeguards only apply when a person is subjected 

to a custodial interrogation. Wright v. State, 766 N.E.2d 1223, 

1229 (Ind. Ct. App. 2002). 

10. In this case, [Thomas] argues that because he was 

handcuffed, he was in custody for purposes of Miranda warnings.

11. Case law allows for an officer to make a traffic stop, to 

detain a person upon reasonable suspicion of criminal activity, 

and to ask questions to determine identity and verify or disprove 

the officer’s suspicions. Meredith v. State, 906 N.E.2d 867, 873 

(Ind. 2009).

12. The initial traffic stop in this case was due to a nonoperational license plate light, followed by a review of the 

registered owner’s driving status that returned “suspended”. 

Therefore, the initial stop for the suspected criminal activity of 

driving with a suspended license was proper.
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13. In the case of Crabtree v. State, 762 N.E.2d 241 (Ind. Ct. App. 

2002), whereby the defendant, Crabtree, failed to comply with an 

officer’s orders and was handcuffed as a result. Id. [a]t 246. The 

Court of Appeals determined that because the handcuffing 

coupled with reasonable suspicion, the officer’s interaction was 

found to be an investigatory stop that implicated Fourth 

Amendment protections, and the admission of the evidence 

seized pursuant to the stop was not in error because the officer 

had reasonable suspicion that criminal activity had occurred. Id.

[a]t 247.

14. In this case, Officer Harris, had reasonable suspicion to stop 

[Thomas] for investigatory purposes. Furthermore, because he 

disobeyed the officer’s orders to pull over immediately when the 

officer initiated the traffic stop and continued driving for 

approximately three (3) blocks in a slow manner before coming 

to a stop, the subsequent additional seizure of placing [Thomas]

in handcuffs did not rise to the level of a formal arrest. Based 

upon [Thomas’s] behavior and suspected suspended driver’s 

license, the officer was justified in handcuffing [Thomas] for 

officer safety purposes.

15. At the time Officer Harris retrieved and opened [Thomas’s]

wallet, at his request, he was merely investigating a driver with a 

suspended license. When the officer noticed the gun permit, he 

inquired about weapons out of concern for his safety, not an 

attempt to elicit a response indicative of a commission of a crime. 

The presence of a physical gun permit led the officer to believe 

that on its face it was valid and any questions about a weapon 

would not produce a response of an admission of additional 

criminal activity.

16. Per the Speedway Police Department’s Tow Policy, unless a 

licensed driver is available to drive the vehicle upon a driver’s 

arrest, the vehicle will be towed pursuant to policy. In this case 

there was no other person available to drive the vehicle 

subsequent to [Thomas’s] arrest. The gun which [Thomas]
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admitted to having was located in the passenger compartment of 

the vehicle and inventoried due to the tow.

17. Based on the testimony and evidence presented at the 

suppression hearing, the Court now DENIES the motion to 

suppress.

a. The motion to suppress the officer’s question regarding 

a handgun and the statement made by [Thomas] to the 

police officer regarding him having a handgun is

DENIED.

b. The motion to suppress the seizure of [Thomas’s] hand 

gun located inside the passenger or compartment of the 

vehicle as a result of the tow policy is DENIED.

Appellant’s Appendix Volume II at 40-44 (underlining omitted and italics 

added).

[8] On July, 24, 2017, the court held a bench trial. Officer Harris testified that he 

noticed the gun permit in Thomas’s wallet “which led me to my question for 

everyone’s safety, do you have a gun on you?” Transcript Volume II at 22. 

During Officer Harris’s testimony, Thomas’s counsel argued that Thomas was 

in custody for purposes of Miranda and Pirtle. The court denied any request for 

suppression. Officer Harris also testified that Thomas “told me when I asked 

him whether he had a gun on him that the gun was in the center console of the 

vehicle and that’s where it was.” Id. at 27. The court admitted the gun and 

ammunition into evidence over Thomas’s continuing objection with regard to 

the property and assertion that it would be fruit of the poisonous tree. 
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[9] The court found Thomas guilty as charged and sentenced him to 365 days with 

361 days suspended for each count and ordered that the sentences be served 

concurrent with each other and that the sentence for driving while suspended as 

a class A misdemeanor be served consecutive to his sentence under cause 

number 49G24-1612-F6-D4788. 

Discussion

[10] The issue is whether the trial court erred in admitting certain evidence. 

Although Thomas originally challenged the admission of the evidence through 

a motion to suppress, he now challenges the admission of the evidence at trial. 

Thus, the issue is appropriately framed as whether the trial court abused its 

discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 

(Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 

(Ind. Ct. App. 2005).

[11] “Because the trial court is best able to weigh the evidence and assess witness 

credibility, we review its rulings on admissibility for abuse of discretion and 

reverse only if a ruling is ‘clearly against the logic and effect of the facts and 

circumstances and the error affects a party’s substantial rights.’” Carpenter v. 

State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 

260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a 

search or seizure is a question of law that we consider de novo.” Id. Even if the 

trial court’s decision was an abuse of discretion, we will not reverse if the 

admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. 

Ct. App. 1999), reh’g denied, trans. denied.
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[12] In ruling on admissibility following the denial of a motion to suppress, the trial 

court considers the foundational evidence presented at trial. Carpenter, 18 

N.E.3d at 1001. If the foundational evidence at trial is not the same as that 

presented at the suppression hearing, the trial court must make its decision 

based upon trial evidence and may consider hearing evidence only if it does not 

conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).

[13] Thomas cites the Fifth Amendment of the United States Constitution as 

providing a privilege against self-incrimination during a custodial interrogation. 

He argues that “[t]he questioning of an individual as to whether they have any 

firearms, who received a pat down for firearms or weapons, is in restraints and 

has been removed from the vehicle they were the sole occupant of, is beyond 

the scope of officer safety and requires that Miranda be read.” Appellant’s Brief 

at 9-10. He asserts that his answer to Officer Harris regarding whether any 

handguns were on the scene must be suppressed and that any evidence 

uncovered after that must be suppressed as fruit of the poisonous tree. He 

argues that the discovery of the firearm pursuant to the Speedway Police 

Department Tow Policy would be an attempt to use the inevitable discovery 

rule to permit the introduction of the handgun at trial and that Indiana has not 

adopted the inevitable discovery rule. He also asserts that the extensive search 
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of his car does not fit within the search incident to lawful arrest as it was not 

needed to protect officer safety or to preserve evidence.2 

[14] The State asserts that, as Thomas does not dispute, the initial traffic stop of 

Thomas’s vehicle was valid. It argues that Officer Harris’s question regarding 

where Thomas’s gun was located did not implicate Thomas’s rights under

Miranda and asserts that none of Officer Harris’s acts transformed the encounter 

into a custodial interrogation. It points out that Officer Harris did not place 

Thomas under arrest or inform him that he was doing so, did not ask Thomas 

to sit inside his patrol vehicle, transport him anywhere or otherwise restrain his 

freedom of movement, and did not ask Thomas any prolonged or accusatory 

questions seeking to elicit evidence of criminal activity. The State contends that 

Officer Harris’s question of whether Thomas had a gun did not implicate 

Thomas’s Miranda rights because Thomas was never interrogated. It asserts 

that the question was solely driven by the officer’s concerns about safety and 

was not an attempt to elicit a response indicative of a commission of a crime. 

The State also asserts that even if Thomas was subject to custodial interrogation 

such that his statement about where the handgun was located must be 

 

2

In his motion to suppress, Thomas mentioned Article 1, Section 11 of the Indiana Constitution and cited 

Pirtle. In his brief on appeal, Thomas does not cite Pirtle, mention Article 1, Section 11, provide an 

independent analysis of the Indiana Constitution, or explain how his statement to Officer Harris violated his 

rights under the Indiana Constitution or how the search was unconstitutional under the Indiana Constitution. 

Failure to make a cogent argument under the Indiana Constitution constitutes waiver of the issue on appeal. 

See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that because the defendant presented no 

authority or independent analysis supporting a separate standard under the state constitution, any state 

constitutional claim is waived).
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suppressed, the admission of his statement was harmless because the handgun 

was found independently of his statement. The State notes that Thomas does 

not contest that the handgun was found in the center console of his vehicle 

during a proper inventory search conducted in anticipation of the vehicle being 

towed. 

[15] We note that Thomas does not challenge the traffic stop, his placement in 

handcuffs, the patdown, or Officer Harris’s search of his wallet. Even assuming 

that Thomas was subject to custodial interrogation, we cannot say that reversal 

is warranted. Under the Fourth Amendment, “the inevitable discovery 

exception to the exclusionary rule permits the introduction of evidence that 

eventually would have been located had there been no error.” Shultz v. State, 

742 N.E.2d 961, 965 (Ind. Ct. App. 2001) (quotations and citations omitted), 

reh’g denied, trans. denied. The Indiana Supreme Court has held that the 

inventory search is an exception to the warrant requirement that “serves an 

administrative, not investigatory, purpose—because when police lawfully 

impound a vehicle, they must also perform an administrative inventory search 

to document the vehicle’s contents to preserve them for the owner and protect 

themselves against claims of lost or stolen property.” Wilford v. State, 50 N.E.3d 

371, 374 (Ind. 2016). “Consequently, proper impoundment is the ‘threshold 

question’ to valid inventory search.” Id. (quoting Fair v. State, 627 N.E.2d 427, 

431 (Ind. 1993)). As with any warrantless search or seizure, the State bears the 

burden of proving reasonableness. Id. 

[16] The Court held:
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Impoundment is reasonable if it is authorized either by statute or 

the police’s discretionary community-caretaking function. [Fair, 

627 N.E.2d at 431-432]. Impoundment pursuant to a statute is 

necessarily reasonable because the Legislature has deemed that 

citizens’ privacy interests in their cars yield to State interests in 

those circumstances, making police inventorying a necessary 

collateral administrative function. Discretionary impoundment, 

by contrast, is an exercise of the police community-caretaking 

function in order to protect the car and community from hazards. 

Discretionary impoundments, too, may be reasonable—but as we 

recognized in Fair, and more recently in Taylor [v. State, 842 

N.E.2d 327 (Ind. 2006)], they are vulnerable to constitutional 

reasonableness challenges because of their potential for misuse as 

pretext for warrantless investigative searches under the guise of 

inventory. See Fair, 627 N.E.2d at 435; Taylor, 842 N.E.2d at 

331-33. Unless the impoundment is proper, then, an inventory 

search is per se unreasonable and any contraband found during 

the search is inadmissible “poisoned fruit.”

Id. at 375. 

[17] The State makes no claim that impoundment of Thomas’s vehicle was 

authorized by statute. Thus, we focus on the community-caretaking function. 

See Wilford, 50 N.E.3d at 375 (“Here, we must decide whether impounding 

Wilford’s vehicle was reasonable—and because we find no statute specifically 

authorizing this impoundment, we focus on the community-caretaking 

function.”) (footnote omitted). The Indiana Supreme Court has held:

Community safety often requires police to impound vehicles 

because they are abandoned and obstruct traffic, create a 

nuisance, or invite thieves and vandals. See Fair, 627 N.E.2d at 

431-33. These impoundments fall under the police’s 

“community caretaking function”—a catchall term for “the wide 
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range of responsibilities that police officers must discharge aside 

from their criminal enforcement activities.” Id. at 431 (quoting 

United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 

1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 868, 116 L.Ed.2d 

774 (1992)). Indeed, besides enforcing criminal laws, police “aid 

those in distress, combat actual hazards, prevent potential 

hazards . . . and provide an infinite variety of services to preserve 

and protect community safety.” Rodriguez-Morales, 929 F.2d at 

784-85.

We have said that “police may discharge their caretaking 

function whenever circumstances compel it,” Fair, 627 N.E.2d at 

432, 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.’” Id. (quoting 

Colorado v. Bertine, 479 U.S. 367, 375, 107 S. Ct. 738, 93 L.Ed.2d 

739 (1987)). Otherwise, community-caretaking impoundments 

could too readily be used “for a general rummaging in order to 

discover incriminating evidence” under the pretext of an 

administrative inventory. Id. at 435 (quoting Florida v. Wells, 495 

U.S. 1, 4, 110 S. Ct. 1632, 109 L.Ed.2d 1 (1990)).

In view of that potential for pretext, Fair set forth a strict twoprong standard for proving that the decision to impound a 

person’s vehicle without a warrant was reasonable:

(1) Consistent with objective standards of sound policing, 

an officer must believe the vehicle poses a threat of harm 

to the community or is itself imperiled; and

(2) The officer’s decision to impound adhered to 

established departmental routine or regulation.

Id. at 433. The State must satisfy both elements—so if it cannot 

meet one, we need not consider the other. Taylor, 842 N.E.2d at 

333.

Id. at 375-376.
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[18] On appeal, Thomas makes no argument that Officer Harris did not believe, 

consistent with objective standards of sound policing, that his vehicle posed a 

threat of harm to the community or was itself imperiled. Nor does Thomas 

argue that Officer Harris’s decision to impound the vehicle did not adhere to 

established departmental routine or regulation. Rather, Thomas asserts that the 

fact the Speedway Police Department Tow Policy “would eventually uncover 

the firearm would be an attempt to use the inevitable discovery rule to permit 

the introduction of the handgun at trial.” Appellant’s Brief at 10. He also 

asserts:

Indiana has not adopted the inevitable discovery rule and such an 

argument cannot permit the State of Indiana to meet its burden 

“[. . .] of proving the challenged evidence had an independent 

source or to establish the attenuation of the initial taint or the 

applicability of another exception to the general rule of 

exclusion.”

Id. (quoting Herald v. State, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987), reh’g denied, 

trans. denied). 

[19] We acknowledge that the inevitable discovery exception has not been adopted 

as a matter of Indiana constitutional law. See Ammons v. State, 770 N.E.2d 927, 

935 (Ind. Ct. App. 2002), trans. denied. However, as noted, Thomas does not 

mention Article 1, Section 11, provide an independent analysis of the Indiana 

Constitution, explain how his statement to Officer Harris violated his rights 

under the Indiana Constitution or how the search was unconstitutional under 
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the Indiana Constitution, and has waived any argument under the Indiana 

Constitution. 

Conclusion

[20] For the foregoing reasons, we affirm Thomas’s conviction for carrying a 

handgun without a license as a class A misdemeanor. 

[21] Affirmed. 

Bailey, J., and Crone, J., concur.