Court of Appeals of Indiana | Opinion 10A01-1507-CR-1006| May 26, 2016 Page 1 of 10

ATTORNEY FOR APPELLANT

Jeffrey D. Stonebraker

Chief Public Defender

Clark County Public Defender’s Office

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph Sidener

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 26, 2016

Court of Appeals Case No.

10A01-1507-CR-1006

Appeal from the Clark Circuit 

Court

The Honorable Vicki L. 

Carmichael, Judge

Trial Court Cause No.

10C04-1402-FC-29

Baker, Judge.
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[1] Joseph Sidener appeals his conviction for Burglary,1 a Class C felony, as well as 

the finding that he is an habitual offender. Sidener argues that law 

enforcement’s use of a GPS tracking device to track the movements of a vehicle 

in which he was a passenger violated his rights under the Fourth Amendment 

to the United States Constitution and Article 1, Section 11 of the Indiana 

Constitution. We find that Sidener may not challenge the constitutionality of 

the search, as he lacked a reasonable expectation of privacy in the vehicle. We 

also find Sidener’s challenges to the sufficiency of the evidence and to the 

State’s amendment of the charging information to be unavailing. Accordingly, 

we affirm the judgment of the trial court. 

Facts

[2] On January 29, 2014, officers of the Evansville Police Department secured a 

warrant allowing them to place a GPS tracking device on a vehicle belonging to 

the mother of Jeffrey Green and to monitor that vehicle in search of a 

connection to several acts of theft that had been committed in Vanderburgh 

County. Later that evening, officers driving unmarked police cars began 

following the vehicle after the GPS device indicated that it was moving. The 

officers followed the vehicle all the way to Clark County, where the GPS 

indicated that the vehicle was maneuvering in and out of the parking lots of 

 

1

Ind. Code § 35-43-2-1.
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businesses at some time between midnight and 1 a.m. The officers believed that 

the driver of the vehicle was casing the businesses in preparation for a burglary.

[3] Shortly after 1 a.m., Officer Donald Lee Erk saw the vehicle parked in front of 

the About Face Salon. Officer Erk witnessed a person enter the passenger side 

of the vehicle before it left the parking lot. Shortly thereafter, Detective John 

Cox saw the vehicle traveling on the Lewis and Clark Parkway with two 

passengers inside. The officers then went to investigate the About Face Salon 

and found that the glass front door had been shattered and that the alarm was 

sounding. At this point, the officers notified the Clarksville Police Department. 

[4] Officers of the Clarksville Police Department entered the About Face Salon and 

discovered that a computer monitor had been damaged and that the cash 

register had been pried open. The officers found chips of blue paint in and 

around the register. One of the owners of the salon arrived and informed the 

officers that $69 in cash had been taken from the register. 

[5] Clarksville police located and stopped the vehicle on Interstate 65 shortly 

thereafter. Green was driving and Sidener was in the passenger seat. As 

Sidener stepped out of the vehicle, small shards of glass fell from his pant leg. 

The officers noticed a blue crowbar on the passenger-side floor and discovered 

$73 in Sidener’s pocket. 

[6] The State charged Sidener with class C felony burglary and alleged that he was 

an habitual offender. The State later amended the information with regard to 

the habitual offender allegation by changing the dates of commission for two of 
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the previous crimes that it alleged that Sidener had committed. At the 

beginning of trial, Sidener moved to suppress the information contained on the 

GPS monitor and any reference to it. The trial court denied the motion and 

Sidener later objected to the introduction of the evidence at trial. Following 

trial, the jury found Sidener guilty as charged. The trial court sentenced Sidener 

to eight years for the burglary conviction and enhanced the sentence by four 

years for the habitual offender finding, resulting in a total sentence of twelve 

years. Sidener now appeals. 

Discussion and Decision

[7] Sidener makes three arguments on appeal. He first argues that any evidence 

relating to the GPS monitoring of the vehicle should have been suppressed 

because the search exceeded the scope of the warrant. He also argues that the 

evidence presented was insufficient to support his conviction. Finally, he 

argues that the State should not have been allowed to amend the charging 

information with regard to the habitual offender allegation so close to the start 

of trial. 

I. Constitutionality of the GPS Search

[8] Both the United States and Indiana constitutions protect individuals against 

unreasonable searches and seizures by agents of the government. U.S. Const. 

amend. IV; Ind. Const. art. 1, § 11. The United States Supreme Court has held 

that the government’s installation of a GPS device on a vehicle, and its 

subsequent use of that device to track the vehicle’s movements, constitutes a 
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“search” under the Fourth Amendment.2 United States v. Jones, 132 S.Ct. 945,

949 (2012). While the search at issue here was conducted pursuant to a valid 

warrant, the officers’ actions may nevertheless be found unconstitutional if they 

exceeded the scope of the warrant. Horton v. California, 496 U.S. 128, 140 

(1990); Conn v. State, 496 N.E.2d 604, 607-08 (Ind. Ct. App. 1986). Sidener 

argues that the officers exceeded the scope of the warrant in this case, as he 

believes that the warrant did not authorize the officers to continue to monitor 

Green’s vehicle outside of Vanderburgh County.

[9] However, the trial court found that Sidener was merely a passenger—he was 

not the vehicle’s owner, nor did he exercise control over the vehicle—and, 

therefore, he could not challenge the propriety of the search. Tr. p. 23-25. 

Accordingly, the trial court denied Sidener’s motion to suppress the evidence 

obtained as a result of the GPS monitoring and allowed that evidence to be 

introduced at trial. Decisions regarding the admission of evidence are within 

the trial court’s discretion and we review such decisions deferentially. Robinson 

v. State, 5 N.E.3d 362, 365 (Ind. 2014). However, because the trial court’s 

decision in this case concerns the constitutionality of a search, it presents a 

question of law, which we review de novo. Id. 

 

2 We can find no case holding that the same conduct constitutes a search under the Indiana Constitution. 

For purposes of our analysis here, we proceed as though such conduct would constitute a search under the 

Indiana Constitution, but we do not decide the issue. 
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[10] We agree with the trial court. For Fourth Amendment purposes, a defendant 

may not challenge the constitutionality of a search unless he can demonstrate 

that he had a reasonable expectation of privacy in the place to be searched. 

Minnesota v. Carter, 525 U.S. 83, 90-91 (1998); Rakas v. Illinois, 439 U.S. 128, 

153-55 (1978). As Sidener was only a passenger in the vehicle, he seems to 

acknowledge that he cannot challenge the search under the Fourth 

Amendment. Appellant’s Br. p. 14; see Rakas, 439 U.S. at 155 (passengers who 

had no reasonable expectation of privacy in vehicle in which they were riding 

could not challenge the constitutionality of a search of that vehicle). 

[11] Instead, Sidener relies on the Indiana Constitution, which he believes provides 

broader protection in this case. He points out the analysis under our State’s 

constitution focuses not only on the defendant’s interest in the premises 

searched, but also on his possessory interests in any property seized. Bradley v. 

State, 4 N.E.3d 831, 839 (Ind. Ct. App. 2014). 

[12] At this point, however, Sidener’s argument becomes strained. He attempts to 

distinguish the initial placement of the GPS device, which he apparently 

characterizes as a search of the premises, from the subsequent tracking of the 

GPS device, which he attempts to characterize as a seizure of property. 

Appellant’s Br. p. 15. Although Sidener does little to clarify this point, we 

understand him to mean that the data regarding the vehicle’s whereabouts is his 

“property” that the government “seized” by recording. However, Sidener cites 

to no case that makes any distinction between the placement of a GPS device 
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and the subsequent tracking of that device, let alone the distinction between 

search and seizure that he proposes. 

[13] This distinction is artificial and makes little sense. The United States Supreme 

Court has made clear that the “installation of a GPS device on a target’s 

vehicle, and its use of that device to monitor the vehicle’s movements, 

constitutes a ‘search.’”3 Jones, 132 S.Ct. at 949 (emphasis added). The Court 

has also made clear that the reason it considers such an action to be a search is 

because “[t]he Government physically occupied private property for the purpose 

of obtaining information.” Id. (emphasis added). The entire purpose of placing a 

GPS device on a vehicle is to obtain information about that vehicle’s 

subsequent movements, and it therefore makes sense that it is the placement of 

the device and the subsequent tracking of that device that constitute the 

“search.” Id. 

[14] Furthermore, even assuming that information regarding the whereabouts of 

Green’s vehicle could be construed as “property” that had been “seized,” 

Sidener has failed to show an interest in it. We take Sidener’s point that 

individuals do not expect the government to monitor their daily movements by 

GPS device, and we acknowledge the constitutional concerns raised by the 

prospect of long-term GPS monitoring. See Jones, 132 S.Ct. at 955 (Sotomayor, 

 

3

In his concurring opinion in Jones, Justice Alito noted that “[a] seizure of property occurs when there is 

some meaningful interference with an individual’s possessory interests in that property, and here there was 

none.” Jones, 132 S.Ct. at 958 (Alito, J., concurring) (quotations omitted) (noting that “the GPS did not 

interfere in any way with the operation of the vehicle”). 
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J., concurring). However, Sidener’s case does not raise these concerns because

the government had no interest in Sidener’s movements, nor did it seek to invade 

his privacy. In fact, the officers did not even know that Sidener was a passenger

until they stopped the vehicle. Accordingly, Sidener has not shown that his 

personal interests were affected by the GPS monitoring of Green’s vehicle and, 

therefore, he cannot challenge the search of the vehicle under the U.S. or 

Indiana constitution. 

II. Sufficiency of the Evidence

[15] Sidener next argues that the State did not present sufficient evidence to support 

his class C felony burglary conviction. When considering a challenge to the 

sufficiency of the evidence, we do not reweigh the evidence or judge the 

credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). 

We will affirm if the probative evidence and the reasonable inferences drawn 

therefrom could have allowed a reasonable jury to find the defendant guilty 

beyond a reasonable doubt. Id. 

[16] The evidence here indicated that Green’s car was driving around the parking 

lots of businesses in the middle of the night. Tr. p. 60-61. An officer later saw 

the vehicle parked in front of the About Face Salon and witnessed an individual 

get into the passenger side. Id. at 75. After the vehicle drove away, another 

officer saw that there were two people inside of it. Id. at 131. Officers then 

noticed that the salon’s glass door was shattered. Upon entering, they 

discovered that the cash register had been pried open and noticed blue paint 
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chips around the pry marks. Id. at 178-83. One of the store’s owners arrived 

and informed the officers that $69 was missing from the register. Id. at 213. 

Officers later stopped Green’s vehicle. As Sidener exited from the passenger 

side, the officers noticed small shards of glass fall from his pant leg. Id. at 252-

53. They also noticed a blue crowbar underneath the passenger-side seat. Id. 

The officers searched Sidener and found a total of $73 in his pockets. 

[17] The question before us is whether a reasonable jury could draw inferences from 

this circumstantial evidence that would establish Sidener’s guilt. Maxwell v. 

State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000). We have no trouble 

concluding that a reasonable jury could have done that here. Sidener’s 

argument to the contrary amounts to a request that we reweigh this evidence, 

which we may not do. 

III. Amendment of the Charging Information

[18] Finally, Sidener argues that the trial court erred in allowing the State to amend 

the charging information with regard to the habitual offender allegation. The 

charging information listed five prior felonies that Sidener had allegedly 

committed. On the day before trial, the State amended the dates of commission 

of the first two felonies listed. Appellant’s App. p. 50, 96. Sidener effectively 

argues that this prejudiced his defense because, once these dates were corrected, 

he could no longer argue that they were incorrect. 

[19] Indiana Code section 35-34-1-5 allows the State to amend an indictment or 

information at any time to correct, among other things, “any . . . defect which 
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does not prejudice the substantial rights of the defendant.” Our Supreme Court 

has squarely addressed the very same issue that Sidener now raises and has held 

that the amendment of dates of commission of crimes in support of an habitual 

offender allegation did not affect a defendant’s substantial rights where “the 

amendments did not preclude [the defendant] from being aware of the crimes 

which the State used to establish his habitual offender status.” Brooke v. State, 

516 N.E.2d 9, 14 (Ind. 1987); see also Hudson v. State, 443 N.E.2d 834, 836-37 

(Ind. 1983). Such is the case here, as only the dates of commission were 

amended; the offenses, cause numbers, and dates of sentencing were 

unchanged. Accordingly, Sidener cannot claim that he was unaware of the 

crimes that the State planned to point to in support of the habitual offender 

allegation and, therefore, his defense was not prejudiced by the amendment.

[20] The judgment of the trial court is affirmed. 

May, J., and Brown, J., concur.