Gun found in vehicle inventory erroneously admitted, COA rules

A man’s conviction for driving on a suspended license will stand, but the Indiana Court of Appeals vacated his conviction for carrying a handgun without a license on finding a search of his vehicle was not pursuant to departmental routine or regulation.

Officers put Carl Smith in handcuffs during a traffic stop in Indianapolis after he admitted to not having a driver’s license and stated that he “did not have a date of birth” based on his sovereign citizen ideology. Officers eventually determined Smith’s name and Social Security number, finding that his driver’s license was suspended. While still handcuffed, officers searched Smith’s car and uncovered a handgun in the glove box.

Smith was charged and later convicted of Class A misdemeanor carrying a handgun without a license and Class A misdemeanor driving while suspended, which he appealed in Carl Smith v. State of Indiana,18A-CR-3009. Smith unsuccessfully moved to suppress evidence discovered during what officers called a valid inventory search, which Smith countered was an unconstitutional violation of his rights pursuant to the Fourth Amendment of the United States Constitution.

In his appeal, Smith argued the state failed to establish that the impoundment was done pursuant to the police department’s established routine or regulation. The Indiana Court of Appeals agreed, finding the state failed to establish the officer’s decision to impound Smith’s vehicle adhered to established departmental routine or regulation.

“While we do not require evidence of the department’s written procedure, we do require more than conclusory testimony from an officer,” Judge Cale Bradford wrote for the court. “Here, Officer (Aaron) Trotter testified that the inventory search of Smith’s vehicle was pursuant to a ‘typical tow policy.’ Officer Trotter also testified that it would be typical for him to request a tow of a vehicle when there is no licensed driver present.

“Officer Trotter’s testimony regarding impoundment is at best a generalized assertion that the impoundment and search were conducted pursuant to the department’s procedure; however, it fails to specially describe how the impoundment decision adhered to the department’s procedure,” Bradford wrote. “Moreover, the State acknowledges that ‘there was not sufficient evidence of the (Indianapolis Metropolitan Police Department) inventory policy admitted at trial.’ Given the conclusory nature of Officer Trotter’s testimony and the State’s concession, we conclude that the trial court erroneously admitted the evidence obtained from the inventory search.”

The appellate court further found the state had waived its argument that the search was pursuant to a lawful arrest, and therefore affirmed Smith’s driving conviction and vacated his carrying conviction.

In a concurring opinion, Judge Elizabeth Tavitas emphasized the unusual circumstances of the case and disagreed with the majority’s conclusion that the state waived its argument that the search was in pursuit of Smith’s identification.

“I conclude, however, that the State failed to present sufficient evidence at the trial to establish that the search incident to arrest exception is applicable here,” Tavitas opined. “At the time of the search, the officers had already identified Smith and already learned that his driver’s license was suspended. A search of the vehicle would not have revealed evidence that Smith refused to identify himself or drove while suspended. For these reasons, I concur in result.”