Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 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

Yvette M. LaPlante

Keating & LaPlante, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Terry McNary,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 13, 2017

Court of Appeals Case No.

82A04-1607-CR-1733

Interlocutory Appeal from the 

Vanderburgh Circuit Court

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No.

82C01-1603-F3-1640

Crone, Judge.
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Case Summary

[1] In this interlocutory appeal, Terry McNary challenges the denial of his motion 

to suppress certain evidence from his trial on charges of level 3 felony 

methamphetamine possession, level 6 felony cocaine possession, and level 6 

felony narcotics possession. He specifically asserts that the challenged evidence 

was obtained pursuant to an unlawful search of his vehicle and certain

containers found therein during a traffic stop. We affirm.

Facts and Procedural History

[2] One evening in March 2016, Evansville Police Department Sergeant Stephen 

Kleeman was patrolling city streets for seatbelt enforcement and aggressive 

driving. He observed a vehicle with a broken taillight and watched as the driver

turned directly in front of a vehicle on his right and made an immediate right 

turn into a movie theater parking lot. The sergeant activated his lights and 

initiated a traffic stop for aggressive driving.

[3] When Sergeant Kleeman approached the vehicle, he noticed that there were 

four passengers in addition to the driver, McNary. When the sergeant asked for 

McNary’s driver’s license, he indicated that he did not have one. He gave the 

sergeant his name and birthdate, and the sergeant returned to his patrol vehicle 

to enter the information into his computer. The National Crime Information 

Center (“NCIC”) database indicated that McNary had an active warrant in

Clay County, Indiana, for failure to appear on charges of possession of a 

handgun without a license and marijuana possession. The NCIC entry 
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indicated that McNary was to be considered “armed and dangerous.” Tr. at 6-

7. The sergeant also learned that McNary’s driver’s license had been suspended 

in Kentucky. 

[4] Sergeant Kleeman became concerned for his safety and called for backup. 

When backup officers arrived and were apprised of the situation, they removed 

McNary from his vehicle,1 handcuffed him, and placed him in Sergeant 

Kleeman’s patrol vehicle. Sergeant Kleeman informed McNary that he had 

discovered his active warrant in Clay County on weapons and drug charges and 

told him that he had notified law enforcement there concerning possible 

extradition. He told McNary that he would be held until they got a response 

and that if Clay County did not seek extradition, he would be released. 

According to the sergeant, he did not Mirandize McNary at that time, and the 

only conversation he had with McNary was “whether he was going to be going 

to jail for the NCIC hit.” Id. at 19-20.

[5] Meanwhile, McNary’s adult female passenger (“Girlfriend”) remained in the 

front seat of his vehicle, and his three juvenile passengers remained in the back

seat. Officer Jacklyn Smith kept watch over the passengers and found that the

tinted windows and dark, misty weather conditions made it difficult to observe 

their movements. She opened the passenger door, and when she saw a backseat 

 

1

 We refer to the vehicle that McNary was driving as “his vehicle” for purposes of distinguishing it from the 

police vehicles present at the scene. The registered owner of the vehicle was the father of one of the juvenile 

passengers. On appeal, the State does not argue that McNary lacks standing to complain about the search of 

the vehicle. 
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passenger moving around or reaching for something, she directed the 

passengers to “keep their hands on their laps.” Id. at 22. She removed the 

passengers from the vehicle and immediately conducted a search of the areas of 

the vehicle within the driver’s “wingspan.” Id. at 22-23, 27. On the floorboard 

right behind the front passenger’s seat, she discovered a zippered pouch/coinpurse which, in her experience, resembled those sometimes used to store drugs. 

She opened the pouch and found a small tin containing what appeared to be 

narcotics (and later was determined to be methamphetamine, cocaine, and 

hydrocodone). Officer Smith approached Sergeant Kleeman and informed him 

that she had discovered the drugs. The sergeant told Officer Smith that he 

would ask McNary and Girlfriend if either one would claim the pouch of drugs, 

and if not, he would arrest them both. McNary apparently overheard the 

officers’ conversation and “stated that it was not her dope and that it was all 

his.” Id. at 23. Shortly thereafter, Clay County law enforcement responded 

that it did not wish to pursue extradition of McNary at that time.

[6] The State charged McNary with level 3 felony methamphetamine possession, 

level 6 felony cocaine possession, and level 6 felony narcotics possession. 

Claiming that he had been subjected to an unlawful search and seizure, 

McNary filed a motion to suppress the evidence recovered from his vehicle.2 

The trial court held a suppression hearing, and the parties submitted briefing 

 

2

 As part of his motion to suppress, McNary also challenged the admissibility of certain inculpatory 

statements that he made to officers at the scene. However, he does not argue this issue on appeal. 

Appellant’s App. at 11-12. As such, we limit our discussion to the search of his vehicle and its contents. 
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after the hearing. The trial court issued an order with findings of fact denying 

McNary’s motion. 

[7] Upon McNary’s request, the trial court certified the order for interlocutory 

appeal, and we accepted jurisdiction. Additional facts will be provided as 

necessary.

Discussion and Decision

[8] McNary maintains that the trial court erred in denying his motion to suppress 

evidence obtained during a warrantless search of his vehicle. Our standard of 

review for the denial of a motion to suppress evidence is similar to that which 

we apply to other sufficiency issues. Stark v. State, 960 N.E.2d 887, 888 (Ind. 

Ct. App. 2012), trans. denied. In determining whether substantial evidence of 

probative value exists to support the denial of the motion, we do not reweigh 

evidence but instead consider the conflicting evidence most favorable to the trial 

court’s ruling. Id. However, in contrast to our review of other sufficiency 

matters, we also consider any uncontested evidence favorable to the appellant. 

Id. at 888-89. We review de novo a ruling on the constitutionality of a search or 

seizure but give deference to a trial court’s factual determinations and will not 

overturn them unless they are clearly erroneous. Id. at 889. Because McNary 

alleges violations of both the Fourth Amendment to the U.S. Constitution and 

Article 1, Section 11 of the Indiana Constitution, we review his claims using the 

independent analyses of each. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). 
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Section 1 – The search of McNary’s vehicle did not violate the 

Fourth Amendment’s prohibition against unreasonable search 

and seizure.

[9] McNary submits that the search of his vehicle and the search and seizure of the 

pouch violated his protections against unreasonable search and seizure found in 

the Fourth Amendment of the U.S. Constitution, which provides,

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized.

Unless an established exception applies, law enforcement must obtain a warrant 

based on probable cause before executing a search and seizure. Stark, 960 

N.E.2d at 889. One such exception is a search incident to arrest. Id. In Chimel 

v. California, 395 U.S. 752, 763 (1969), the U.S. Supreme Court held that a 

search incident to arrest may include the arrestee’s person and the area “within 

his immediate control,” meaning the area within reach, “from within which he 

might gain possession of a weapon or destructible evidence.” Id. Where the 

arrestee is the occupant of an automobile, officers may, incident to a lawful 

arrest, “search the passenger compartment of that automobile” as well as any 

containers found therein. New York v. Belton, 453 U.S. 454, 460 (1981). 

[10] However, noting that Belton should not be read to give police officers 

“unbridled discretion to rummage at will amongst a person’s private effects,” 
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the U.S. Supreme Court took a narrower view in Arizona v. Gant, 556 U.S. 332, 

345 (2009). There, the Court considered circumstances involving an arrest for 

driving on a suspended license where the arrestee had been removed from his

vehicle, handcuffed, and placed in a patrol vehicle prior to the search of his 

vehicle and concluded, “Police may search a vehicle incident to a recent 

occupant’s arrest only if the arrestee is within reaching distance of the passenger 

compartment at the time of the search or it is reasonable to believe the vehicle 

contains evidence of the offense of arrest.” Id. at 351. Noting that there were 

no passengers in Gant’s vehicle and that bystanders had likewise been arrested 

and placed in patrol vehicles, the Gant court reasoned that the typical 

justifications of officer safety and evidence preservation were absent, thus 

rendering the ensuing search of Gant’s vehicle unreasonable under the Fourth 

Amendment. Id. at 347-48. 

[11] In Stark, 960 N.E.2d at 891-92, another panel of this Court affirmed the denial 

of the defendant’s motion to suppress a handgun found inside a jacket that he 

had left inside his vehicle. There, a police officer patrolling a high crime area 

noticed a vehicle parked along the road with four occupants, no lights on, and 

no engine running. Id. at 888. When the officer approached and asked each 

occupant for identification, Stark, a backseat passenger, appeared to slide an 

object under his coat, which he held firmly in his lap. Id. The officer noticed 

that Stark appeared intoxicated and that there was an open plastic cup near his 

feet. Stark admitted that the cup contained alcohol, and the officer ordered him 

out of the vehicle. Id. Stark slid his jacket off his lap and left it inside the 
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vehicle. He was handcuffed and arrested for public intoxication and alcohol 

possession by a minor. Three other occupants remained in the vehicle, and the 

officer reached inside and retrieved Stark’s jacket, in which he discovered a 

loaded semi-automatic handgun for which Stark had no permit and which had 

been reported as stolen. Id. The State charged Stark with carrying a firearm 

without a license. 

[12] Stark appealed the trial court’s denial of his motion to suppress the handgun as 

the product of an unlawful search. The Stark court held that the search of the 

defendant’s jacket was permissible as a search incident to arrest under Gant. Id. 

As in Gant, police had removed the arrestee from his vehicle and handcuffed 

him. Id. at 888. During his arrest, Stark stood outside between the arresting 

officer and the vehicle. Id. The Stark court found Gant factually 

distinguishable, as there had been no occupants remaining in Gant’s vehicle. In 

contrast, the Stark court concluded that officer safety was implicated by an 

objective consideration of the presence of three unsecured occupants inside 

Stark’s vehicle, Stark’s suspicious behavior concerning his jacket, and the fact 

that the arrest occurred in a high-crime area. Id. at 891-92.

[13] As a threshold matter, we address McNary’s argument that the exception for 

search incident to arrest does not apply because he was not under arrest at the 

time of the search. He predicates this argument on Sergeant Kleeman’s 

statement that he was either going to go to jail on the Clay County warrant or 

be released. “Arrest is the taking of a person into custody, that he may be held 

to answer for a crime.” Ind. Code § 35-33-1-5. This occurs when an officer 
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interrupts the accused’s freedom and restricts his liberty of movement. Merchant 

v. State, 926 N.E.2d 1058, 1064 (Ind. Ct. App. 2010), trans. denied. We evaluate 

whether a person is in custody based on objective circumstances, not upon the 

subjective views of officers. Crocker v. State, 989 N.E.2d 812, 818 (Ind. Ct. App. 

2013), trans. denied. “[E]ven when a police officer does not tell a defendant that 

he is under arrest before a search, that fact dos not invalidate a search incident 

to an arrest as long as there is probable cause to make an arrest.” Merchant, 926 

N.E.2d at 1064. 

[14] Here, McNary had been removed from the vehicle, handcuffed, and placed in 

custody in the back of the sergeant’s patrol vehicle pending a response from 

Clay County concerning extradition on his active warrant. He was not free to 

leave. Notwithstanding Sergeant Kleeman’s statement that McNary would 

either be going to jail on the warrant or released, the sergeant’s subjective 

considerations are irrelevant, and probable cause existed to arrest McNary for 

misdemeanor driving on a suspended license and cite him for aggressive driving

regardless of the response from Clay County or the results of the ensuing 

search. McNary was under arrest. 

[15] Concerning the wingspan search incident to arrest, we find that officer safety 

was implicated not only by the NCIC warning that McNary was to be 

considered armed and dangerous but also by the presence and conduct of the 

unsecured passengers. Officer Smith testified that when she observed one of the 

backseat passengers reaching for something, she ordered all the passengers to 

keep their hands on their laps. She decided to remove them from the vehicle 
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just before she conducted her wingspan search. Even then, the passengers stood 

unsecured immediately outside the vehicle. Under these circumstances, we 

conclude that an objective officer would have been warranted in conducting a 

wingspan search of the vehicle incident to arrest. 

[16] As for Officer Smith’s decision to search inside the pouch, McNary observes

that the container was too small to contain a firearm and therefore did not 

present an officer safety concern. He also submits that it was objectively 

unreasonable for Officer Smith to believe that the container held “evidence of 

the offense of arrest.” Gant, 556 U.S. at 351. In this vein, he claims that the 

offense of arrest was “failure to appear,” and therefore only such items as a 

dated docket entry or a transcript from the hearing for which he had failed to 

appear would qualify as evidence of the offense. We find this reasoning

oversimplified and believe that an objective evaluation of reasonableness must 

include consideration of the underlying charges for which the defendant has 

failed to appear – here, weapons and drug offenses. In other words, law 

enforcement’s approach to a detainee with an active warrant for failure to 

appear on weapons or drug charges could reasonably be expected to differ from 

its approach to one whose warrant is for failure to appear on a misdemeanor 

traffic offense. That being said, nothing in the record indicates the date upon 

which McNary was arrested on the marijuana charge in Clay County relative to 

the date of the instant drug offenses. However, police must operate on the facts 

known at the time, and we believe that a reasonable officer in the same 

circumstances would have been warranted in checking inside the pouch. Based 
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on the foregoing, we conclude that the trial court properly denied McNary’s 

motion to suppress on Fourth Amendment grounds. 

Section 2 – The search of McNary’s vehicle did not violate the 

Indiana Constitution’s prohibition against unlawful search 

and seizure.

[17] McNary also maintains that the search and seizure was unlawful under Article 

1, Section 11 of the Indiana Constitution. While the text of Article 1, Section 

11 is identical to that of the Fourth Amendment, the analyses vary somewhat. 

Stark, 960 N.E.2d at 892. “Conformity of a search to the Indiana Constitution 

turns on an evaluation of the ‘reasonableness’ of the conduct of the law 

enforcement officers, not on the expectation of privacy commonly associated 

with Fourth Amendment analysis.” Id. We evaluate the reasonableness of

such conduct under “the totality of the circumstances.” Litchfield v. State, 824 

N.E.2d 356, 361 (Ind. 2005). Although we recognize that there may be other 

relevant considerations under the circumstances of each case, we evaluate the 

reasonableness of a search or seizure under the Indiana Constitution by 

balancing (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. Id.

[18] First, the officers had a high degree of suspicion and knowledge that McNary 

had violated the law. Sergeant Kleeman observed his aggressive driving in 

making an immediate turn off the roadway after cutting off another driver. 
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McNary admitted that he was driving without a license, and computer records 

showed that his Kentucky license had been suspended. He also had an 

outstanding warrant on weapons and drug charges and was listed in the NCIC 

database as “armed and dangerous.” Sergeant Kleeman acted on his high 

degree of concern and knowledge by calling for backup. Officer Smith acted on 

the information that she was given concerning the danger and, after observing 

the passengers as best she could in the dark, misty weather, conducted a limited 

search of the vehicle commensurate with the concerns surrounding McNary. 

The degree of concern, suspicion, and knowledge weighs in favor of the State. 

[19] With respect to the degree of intrusion on McNary’s ordinary activities, Officer 

Smith testified that she merely conducted a wingspan search of the areas of the 

vehicle within McNary’s reach. By that time, McNary had been removed from 

the vehicle, handcuffed, and placed in a police vehicle because of the Clay 

County warrant and the information in the NCIC database. As such, his 

activities were already restricted based on the outstanding warrant. Because 

darkness, tinted windows, and weather conditions impaired Officer Smith’s

ability to observe movements by the passengers remaining inside McNary’s

vehicle, she simply ordered them to stand immediately outside the vehicle. She 

emphasized that she found the pouch within the parameters of her wingspan 

search, that she did not search the whole vehicle, and that the pouch was not 

hidden but was sitting on the floorboard immediately behind the front 

passenger’s seat near the center hump. By the time Sergeant Kleeman received 

a response from Clay County law enforcement concerning extradition of 
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McNary on the warrant, Officer Smith had completed her search, discovered 

the contraband, and reported her findings to the sergeant. This occurred within 

ten minutes’ time.

[20] As for the degree of intrusion attendant to Officer Smith’s opening the small 

pouch that she obtained during the wingspan search, our supreme court 

recently held that a defendant’s rights were not violated when police opened a 

pill container obtained during a patdown search incident to a valid arrest. 

Garcia v. State, 47 N.E.3d 1196, 1205 (Ind. 2016). While we acknowledge that 

the pouch was obtained during a vehicle search rather than a patdown of 

McNary, we see no significant difference in the degree of intrusion, especially 

given the brief time that elapsed and the fact that the wingspan search had been 

completed before the officers received a response from Clay County concerning 

the active warrant. As such, the search did not lengthen the duration of 

McNary’s detention. Moreover, we are unpersuaded by McNary’s assertion

that opening the pouch amounted to an unlawful intrusion because it was too 

small to contain a firearm. “A search incident to a valid arrest is lawful 

regardless of what it reveals.” Guilmette v. State, 14 N.E.3d 38, 42 (Ind. 2014) 

(quoting Farrie v. State, 255 Ind. 681, 683, 266 N.E.2d 212, 214 (1971)). Even 

so, we remind McNary that while officer safety concerns precipitated the 

wingspan search for possible weapons, the active warrant concerned both 

weapons and drug charges. The minimal degree of intrusion weighs in favor of 

the State. 
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[21] Finally, with respect to law enforcement needs, we observe that the most 

commonly recognized bases for conducting a search incident to arrest include 

“ensuring that the arrestee is unarmed, preventing the arrestee from bringing 

contraband into jail, and preventing the destruction of evidence.” Garcia, 47 

N.E.3d at 1202 (quoting Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App. 

2011)). Here, the need to ensure officer safety was high, as the NCIC database 

showed that McNary had an active warrant for failure to appear on weapons 

and drug charges in another county. Concern for officer safety was further 

heightened by the statement in the NCIC database that McNary was to be 

considered “armed and dangerous.” Officer Smith testified concerning the 

number of officers at the scene that it was an “officer safety issue with the 

handgun, we don’t take handguns lightly.” Tr. at 22. When asked about the 

wingspan search, she stated, “we were making sure that there was no other 

weapon in the car.” Id. at 23. Moreover, the need to prevent destruction or 

loss of evidence was high, since Girlfriend was a licensed driver and could have 

driven away. Officer Smith expressed concern because of conditions that 

impaired her ability to see what McNary’s four passengers were doing while 

still inside the vehicle. She testified that when she opened the passenger’s side 

door and observed movement and reaching by one of the passengers, she first 

warned the passengers to keep their hands on their laps. Her needs as a law 

enforcement officer involved not only addressing what the “armed and 

dangerous” McNary might have attempted to stash within his reach during the 

initial minutes of the stop but also what one of the passengers might have taken 

possession of or attempted to stash in the ensuing minutes between the original 
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stop and the wingspan search. The passengers remained inside the vehicle for 

several minutes and were removed just moments before the search. Even then, 

the passengers stood unsecured next to the vehicle. Law enforcement needs of 

officer safety and evidence preservation weigh in favor of the State. 

[22] In short, police acted lawfully under the totality of the circumstances pursuant 

to Article 1, Section 11. As such, we conclude that McNary was not denied his 

constitutional protections when police seized and searched the pouch 

containing illegal substances. Thus, the trial court did not err in denying 

McNary’s motion to suppress. Accordingly, we affirm.

[23] Affirmed. 

Riley, J., and Altice, J., concur.