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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: ANNA ONAITIS HOLDEN Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

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

Nov 09 2010, 9:02 am

CLERK

No. 49A02-1001-CR-59

APPEAL FROM THE MARION SUPERIOR COURT The Honorable James B. Osborne, Judge Cause No. 49F15-0908-FD-076780

November 9, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Emilio Rivera appeals his convictions for two counts of Class D felony theft. Rivera was questioned by law enforcement in connection with a suspected child abduction. When asked to identify himself, Rivera provided several names and birth dates which were confirmed to be false. Rivera was handcuffed and Mirandized. Police searched Rivera's person and discovered two stolen social security cards in his wallet. Rivera was tried and convicted for theft of the cards. Rivera argues that his search was unlawful and that there was insufficient evidence to sustain his convictions. We conclude that (I) Rivera's search was permissible as incident to a lawful arrest and (II) there is sufficient evidence to sustain Rivera's theft convictions. We affirm. Facts and Procedural History In late July or early August 2009, William Neville's and Kelli Siler's social security cards were stolen from their trucks. The cards bore their respective names, social security numbers, and signatures. Both thefts were reported to authorities. On August 30, 2009, Indianapolis Police Officer Jack Rebolledo was dispatched to a Marion County, Indiana, residence in response to an alleged runaway or child abduction. The complainant was a mother who believed someone was taking her

daughter to Florida. Officer Rebolledo encountered several people at the residence, including two juvenile females, several adult parents/guardians, and a man later identified as Rivera. The juveniles informed Officer Rebolledo that they had met Rivera and were planning to move to Florida with him. Rivera allegedly promised to take them to Florida and find them jobs. 2

Officer Rebolledo asked Rivera to identify himself. Rivera gave three different names and several dates of birth. Officer Rebolledo checked the names and birthdates via radio control and discovered they were false. At one point Rivera said he was born in 1977. Officer Rebolledo asked Rivera how old he was. Rivera responded, "Twenty." Officer Rebolledo placed Rivera in handcuffs, Mirandized him, and conducted a search of his outer clothing. Officer Rebolledo found a wallet in Rivera's back pocket containing several social security cards. Two of the cards belonged to Neville and Siler. Rivera told Officer Rebolledo that he had found the cards in a dumpster across the street. The State charged Rivera with two counts of Class D felony theft. The State alleged that on or about August 30, 2009, in Marion County, Indiana, Rivera knowingly exerted unauthorized control over the social security cards of Neville and Siler. Rivera moved to suppress the two stolen social security cards. Rivera argued that the evidence was the product of an unlawful search and seizure. The trial court denied the motion and admitted the exhibits. A jury found Rivera guilty of both counts. Rivera now appeals. Discussion and Decision Rivera raises several issues which we condense and restate as: (I) whether the social security cards were inadmissible as products of an unconstitutional search and seizure and (II) whether there is insufficient evidence to sustain Rivera's theft convictions.

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I. Search and Seizure Rivera argues that the social security cards were seized in violation of both his federal and state constitutional rights and that the evidence was therefore improperly admitted at trial. A. Federal Constitutional Claim The Fourth Amendment to the United States Constitution provides that "[t]he 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." The Fourth Amendment is made applicable to the States via the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 656 (1961). Evidence obtained in violation of a defendant's Fourth Amendment rights may not be introduced against him at trial. Id. at 648-60. For a search to be reasonable under the Fourth Amendment, a warrant is required unless an exception to the warrant requirement applies. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). One recognized exception to the warrant requirement is a search conducted incident to a lawful arrest. Caudill v. State, 613 N.E.2d 433, 439 (Ind. Ct. App. 1993). "Incident to lawful arrest, the arresting officer may conduct a warrantless search of the arrestee's person and the area within his or her immediate control." Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996) (citing Chimel v. California, 395 U.S. 752, 772 (1969)), trans. denied. 4

An arrest occurs when a police officer "interrupts the freedom of the accused an[d] restricts his liberty of movement." Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996). For an arrest to be lawful, it must be supported by probable cause. VanPelt v. State, 760 N.E.2d 218, 222 (Ind. Ct. App. 2001), trans. denied. Probable cause for arrest exists where at the time of the arrest the officer has knowledge of facts and circumstances which warrant a man of reasonable caution to believe a suspect has committed the criminal act in question. Roberts v. State, 599 N.E.2d 595, 598 (Ind. 1992). "A police officer's failure to formally arrest or to give a defendant notice of arrest prior to a search will not invalidate a search incident to an arrest as long as there is probable cause to make an arrest." Jackson v. State, 588 N.E.2d 588, 590 (Ind. Ct. App. 1992). And "probable cause for an arrest may exist even though a police officer 's subjective evaluation of a situation leads him to the conclusion that he did not possess enough information to establish probable cause at a particular time. " N.E.2d at 598. A person who "gives false information in the official investigation of the commission of a crime, knowing the . . . information to be false" commits false informing, a Class B misdemeanor. Ind. Code

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