ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN
MICHAEL G. MOORE
Marion County Public Defender
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
May 03 2012, 9:12 am
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Rebekah Pierson-Treacy, Judge
Cause No. 49F19-1009-CM-36885
May 3, 2012
OPINION - FOR PUBLICATION
of the supreme court,
court of appeals and
STATEMENT OF THE CASE
Appellant-Defendant, Meschach Berry (Berry), appeals his conviction for
possession of marijuana, a Class A misdemeanor, Indiana Code § 35-48-4-11(1).1
Berry raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by admitting evidence obtained through an inventory search of
FACTS AND PROCEDURAL HISTORY
Berry worked at the Class Touch Car Wash in Indianapolis, Indiana. On May 8,
2010, Berry drove his relative’s car to pick up his last paycheck from work. After the
manager informed Berry that his paycheck was unavailable, Berry drove his car to the
entrance of the car wash and blocked customer traffic. The police were called and
Officers Christopher Sherrell (Officer Sherrell) and G. Phillip Rossman (Officer
Rossman) of the Indianapolis Metropolitan Police Department arrived at the car wash.
Officer Sherrell told Berry to move his vehicle, pointing to an area where the car wash’s
self-service vacuum bays were located. Berry subsequently complied by moving his car
to the vacuum bays.
We held an oral argument in this case on April 10, 2012, at Marian University in Indianapolis, Indiana.
We thank Marian University for its hospitality in hosting the argument and counsel for their excellent
Officer Sherrell informed Berry that his paycheck dispute was a civil matter and
that Berry’s car could not block customer traffic. Officer Sherrell then ran a check on
Berry’s drivers license and discovered that his license was suspended. Berry was issued
a citation for the infraction. After Officer Sherrell told Berry that the vehicle could not
be driven away, Berry inquired whether his relative could drive the car away. Officer
Sherrell asked if the vehicle was insured, but Berry responded that he was unsure since
the car belonged to one of his relatives. Officer Sherrell told Berry that the vehicle must
be towed and proceeded to conduct an inventory search of the vehicle.
Officer Sherrell opened the driver’s side door and found plastic bags containing
marijuana in the interior door compartment. Marijuana was also found inside a folded
paper in the car’s ashtray. Officer Sherrell confronted Berry with the marijuana and
arrested him. The officer continued checking the vehicle and found a digital scale in a
compact-disc container. Apart from placing the marijuana and the scale in an evidence
bag, the officer did not create formal inventory sheets detailing Berry’s personal effects.
On May 8, 2010, the State filed an Information charging Berry with possession of
marijuana as a Class A misdemeanor, I.C. § 35-48-4-11(1). On August 9, 2010, a bench
trial was held. During the State’s direct examination of Officer Sherrell, Berry objected
to the impoundment of his car and moved to suppress evidence obtained during the
inventory search of his car. The trial court denied his motion and Berry was found guilty
as charged. On the same day, the trial court sentenced Berry to 365 days in the Marion
County Jail, with 353 days suspended and 180 days’ probation.
Berry now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
On appeal, Berry contends that the trial court abused its discretion by admitting
the evidence. Our standard of review of rulings on the admissibility of evidence is for an
abuse of discretion. Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007). An
abuse of discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the trial court. Boggs v. State, 928 N.E.2d 855, 862 (Ind. Ct.
App. 2010), trans. denied. We do not reweigh the evidence and consider conflicting
evidence favorable to the trial court's ruling, while uncontested evidence is considered
favorable to the defendant. Widduck, 861 N.E.2d at 1269.
The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures and its protections extend to the states through the Fourteenth
Amendment. Taylor v. State, 842 N.E.2d 327, 330, 334 (Ind. 2006). Subject to certain
well-established exceptions, a warrant is required to demonstrate that a search is
reasonable. Id. The State has the burden to prove that an exception to the warrant
requirement existed at the time of the search. Id.
One such exception, applicable here, is a valid inventory search. Id. A valid
inventory search is a “warrantless search of a lawfully impounded automobile if the
search is designed to produce an inventory of the vehicle’s contents.” Fair v. State, 627
N.E.2d 427, 430 (Ind. 1993). We review the reasonableness of a vehicle inventory search
with two factors in mind: first, whether the impoundment giving rise to the inventory
search was proper, and second, whether the inventory search was excessive in scope. Id.
at 431. The State must meet both factors for an inventory search to be valid. Id. “In
borderline cases, however, the ultimate character of the search is often most clearly
revealed when both the necessitousness of the impoundment and the scrupulousness of
the inventorying are viewed together.” Id.
Impounding a vehicle is proper when authorized by statute or when done pursuant
to the police’s community caretaking function. Id. at 431-33. The community caretaking
function refers to those responsibilities the police undertake in addition to their law
enforcement duties, which includes the removal of potential hazards to public safety. Id.
at 431. To demonstrate that the community caretaking function justified impoundment of
Berry’s vehicle, the State must satisfy a two prong test under Fair: (1) that the officer’s
belief that the vehicle posed a harm or a threat to the community was “consistent with
standards of sound policing and (2) that the decision to combat that threat by
impoundment was in keeping with established departmental routine or regulation.” Id. at
Berry contends that Officer Sherrell’s decision to impound his vehicle was
unreasonable because no statute expressly required his vehicle to be impounded and there
was no community caretaking function justification present. In the latter case, Berry
claims that his car constituted no hazard or threat of harm to the community and that the
State presented no evidence that Officer Sherrell’s decision to impound was consistent
with the Indianapolis Metropolitan Police Department’s standard operating procedures.
We examine each contention in term.
First, Berry’s argument on lack of statutory authorization to impound, standing
alone, is unpersuasive. Berry points to the statutes governing the operation of a vehicle
with a suspended license or without insurance,2 which, although giving rise to infractions,
do not contain language authorizing impoundment. This argument, however, has already
been decided against Berry. “[S]tatutory authority does not present the sole justification
which courts will recognize, inasmuch as impoundment is sometimes warranted by
exigencies not catalogued in state statutes.” Id. at 431. Consequently, Berry’s reliance
on statutory silence alone is unavailing.
Second, Berry’s argument that the location of the vehicle posed no threat to the
community also fails. The owner or operator of a business may demand removal of a
third party vehicle impeding the operation of the business. Parked in the car wash
vacuum bays, Berry’s vehicle was on private, commercial property and prevented
customers from using the vacuum bays. Thus, Berry’s vehicle, left as it was in a vacuum
bay that customers could have used, arguably represented a hazard or threat to a
Finally, “when the impoundment is not specifically directed by state law, the risk
increases that a decision to tow will be motivated solely by the desire to conduct an
Violation of I.C. § 9-24-19-1 (driving while suspended) results in a Class A infraction, while violation
of I.C. § 9-25-8-2 (uninsured vehicle) also results in a Class A infraction, except in the case of a prior
unrelated conviction for the same offense. Neither statute expressly requires impoundment.
investigatory search.” Id. at 433. Accordingly, an officer’s choice to impound must rest
upon “standard criteria and on the basis of something other than suspicion of evidence of
criminal activity.” Colorado v. Bertine, 479 U.S. 367, 375 (1987). While standard
procedures cannot address “the myriad circumstances under which a vehicle is
reasonably viewed as posing a hazard,” the decision to impound must nonetheless be “in
keeping with established departmental routine or regulation.” Fair, 627 N.E.2d at 43233.
Here, Berry argues that the State provided no evidence that Officer Sherrell’s
decision to impound Berry’s vehicle was consistent with standard procedures followed by
the Indianapolis Metropolitan Police Department. We agree. Officer Sherrell testified
that he chose to impound Berry’s vehicle because Berry “didn’t have a valid license and
he didn’t have proof of insurance for the vehicle.”
(Transcript p. 24).
characterizing Officer Sherrell’s testimony as describing the “primary operating
procedure prior to towing a vehicle,” the record lacks any evidence of Indianapolis
Metropolitan Police Department policy on impoundment. (Appellee’s Br. p. 4). Thus,
we cannot say whether Officer Sherrell’s discretion to impound Berry’s vehicle was in
keeping with such policy. Furthermore, although the State argues that Berry has cited no
case law for the proposition that a written law enforcement policy must be introduced
into evidence to justify impoundment, we note that other cases have found formal
policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420
(Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on
Consequently, we conclude that the State failed to prove that an
exception to the warrant requirement existed at the time of the inventory search of
Based on the foregoing, we conclude that the search of Berry’s vehicle violated
the Fourth Amendment of the United States Constitution. Therefore, the trial court
abused its discretion by admitting evidence obtained through an inventory search of
FRIEDLANDER, J. and MATHIAS, J. concur
Berry also argues that the inventory search was excessive in scope. However, we find this argument
waived since the record reflects that Berry only objected to whether the State proved that the community
caretaking function justified impoundment. See Weida v. City of West Lafayette, 896 N.E.2d 1218, 1227
(Ind. Ct. App. 2008), trans. denied. Further, since we have found Berry’s Fourth Amendment claim
dispositive, we need not address Berry’s claim under Article 1, Section 11 of the Indiana Constitution.