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FILED
Jan 31 2012, 9:19 am

FOR PUBLICATION
ATTORNEY FOR APPELLANT: MATTHEW D. ANGLEMEYER Indianapolis, Indiana

of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER STARK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-1104-CR-152

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Rebekah Pierson-Treacy, Judge Cause No. 49F19-1010-CM-76319

January 31, 2012

OPINION - FOR PUBLICATION BARNES, Judge

Case Summary In this interlocutory appeal, Christopher Stark appeals the denial of his motion to suppress a handgun. We affirm. Issue Stark raises two issues, which we consolidate and restate as whether the search of Stark's coat after his arrest violated the Fourth Amendment of the United States Constitution or Article 1, Section 11 of the Indiana Constitution. Facts On October 3, 2010, Officer Ronald Shockey, a reserve officer with the Lawrence Police Department, passed a car parked on Englewood Drive. The car had four

occupants, was not running, did not have any lights on, and was in a high crime area. Officer Shockey approached the vehicle and asked the occupants for identification. Stark was sitting in the right rear passenger seat. Stark appeared to slide something under his coat, which was on his lap. Then he pulled his hand out from under the coat, and placed his hand on top of his coat. Stark reached into his pocket to get his identification card while his other hand remained on top of the coat. "extremely still." Tr. p. 19. Officer Shockey approached Stark's door, and Stark switched hands to give Officer Shockey his identification card. Stark's identification card showed that he was not yet twenty-one years old. Officer Shockey also saw a plastic cup on the floor near Stark's feet, and Stark admitted that the cup contained alcohol. Officer Shockey noticed that Stark had bloodshot eyes and smelled of alcohol. At that point, Officer Shockey had 2 Stark was holding his jacket

Stark get out of the vehicle, but Stark slid the jacket off of his lap and left his jacket in the vehicle. Stark was then arrested for public intoxication and possession of alcohol by a minor and handcuffed. The other three occupants remained in the car. During the arrest, Stark and Officer Shockey were next to the vehicle with Stark between Officer Shockey and the vehicle. Officer Shockey retrieved Stark's jacket from the vehicle and found a loaded semi-automatic handgun. Officer Shockey learned that Stark did not have a firearms permit and that the handgun had been reported as stolen. The State charged Stark with carrying a firearm without a license as a Class A misdemeanor. Stark filed a motion to suppress the handgun, arguing in part that the search of his jacket was improper under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Stark relied on the United States Supreme Court's opinion in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). After a hearing, the trial court denied Stark's motion to suppress, but the trial court certified the order for interlocutory appeal. This court accepted jurisdiction of the interlocutory appeal pursuant to Indiana Appellate Rule 14(B)(3). Analysis Stark argues that the search of his coat after his arrest violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), trans. denied. We determine whether substantial evidence of probative value exists to support the denial of the motion. Id. We do not reweigh the evidence, and we 3

consider conflicting evidence that is most favorable to the trial court's ruling.

Id.

However, the review of a denial of a motion to suppress is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable to the defendant. Id. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). I. Fourth Amendment Stark contends that the warrantless search of the vehicle violated the Fourth Amendment to the United States 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 one of several established exceptions applies, law enforcement officers must obtain a warrant based on probable cause before executing a search or a seizure. State v. Hobbs, 933 N.E.2d 1281, 1284 (Ind. 2010). One such exception is the search incident to arrest.1 This exception to the warrant requirement was articulated in Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969), where the Court held that a search incident to arrest may include "the

1

The State also argues that the search was proper under the automobile exception because Officer Shockey had probable cause to believe the vehicle contained evidence of a crime. However, the State did not make this argument to the trial court, and we will not consider it on appeal.

4

arrestee's person and the area `within his immediate control'

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