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Harbaugh v. State

Court of Appeals of Indiana

March 9, 2018

Carmen Nicolle Harbaugh, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Hamilton Superior Court No. 29D02-1507-F4-6405 The Honorable Jonathan M. Brown, Judge

          Attorney for Appellant Russell B. Cate Cate, Terry & Gookins LLC Carmel, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Carmen Nicolle Harbaugh appeals her convictions of Level 4 felony dealing in cocaine, [1] Level 4 felony dealing in methamphetamine, [2] Level 6 felony possession of cocaine, [3] Level 6 felony possession of methamphetamine, [4] Class B misdemeanor possession of marijuana, [5] and Class C misdemeanor possession of paraphernalia.[6] She argues the trial court abused its discretion when it admitted the evidence obtained as part of the search of her vehicle. She presents two issues for our review, one of which we find dispositive: whether the State presented sufficient evidence officers had probable cause to conduct a warrantless search of her vehicle. We affirm.

         Facts and Procedural History[7]

         [¶2] On July 25, 2015, Westfield Police Captain John Lowes was conducting surveillance in plain clothes and in an unmarked police car. At approximately 2:00 p.m., a black Chevy Blazer passed his location. Captain Lowes recognized the vehicle, which belonged to Harbaugh, and one of the occupants of the vehicle, Harbaugh, from prior encounters. He believed the driver of the vehicle to be Harbaugh's boyfriend, Jacob Beach. Captain Lowes knew Beach's driving privileges were suspended and Beach had an outstanding arrest warrant for a probation violation. Captain Lowes followed the Chevy Blazer and contacted Sergeant Robert Dine for back up.

         [¶3] Captain Lowes observed neither Harbaugh nor Beach was wearing a seatbelt. In addition, Captain Lowes saw the Blazer fail to stop at an intersection and the license plate on the vehicle was expired. He relayed this information to Sergeant Dine, who pulled the Blazer over in a fast food parking lot. Sergeant Dine approached the vehicle, confirmed Beach's identity, and asked him to exit the vehicle. After a brief scuffle, Captain Lowes and Sergeant Dine arrested Beach.

         [¶4] While Captain Lowes and Sergeant Dine were arresting Beach, K9 Officer Song Kang arrived on the scene with his K9 partner, Gorky. Captain Lowes decided to impound the Blazer because its license plate was expired, and he asked Harbaugh to exit the vehicle. She did so and sat down at a nearby picnic table.

         [¶5] Officer Kang deployed Gorky "for a sniff of the vehicle[.]" (Tr. Vol. II at 23.) Gorky alerted on a zipped black bag in the middle of the back seat of the vehicle. Officer Kang opened the bag and found a small wooden box. Inside the wooden box, officers found plastic bags containing white powder and white crystalline substances, cash, Ziploc bags, and green plant material. Also in the black bag were digital scales and pills. Officer Kang found Harbaugh's purse in the car. Inside the purse, he found several pills, some pills packaged for individual sale in small plastic bags, bags with a white powder residue, and a cell phone. Three compact mirrors with powder residue on them were also found inside the vehicle. Sergeant Dine place Harbaugh in handcuffs, and a female officer on the scene, Officer Angela Martin, conducted a search of Harbaugh's person and discovered three pills, a small plastic bag containing a white crystalline substance, three small broken pieces of straw, and a broken portion of an ink pen. The officers placed Harbaugh under arrest.

         [¶6] On July 27, 2015, the State charged Harbaugh with Level 4 felony dealing in cocaine, Level 4 felony dealing in methamphetamine, Level 6 felony possession of cocaine, Level 6 felony possession of marijuana, Level 6 felony maintaining a common nuisance, [8] Class A misdemeanor possession of a controlled substance, [9] Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. On December 30, 2015, Harbaugh filed a motion to suppress. The trial court held a hearing on the motion to suppress on May 13, 2016, and denied the motion.

         [¶7] On April 17, 2017, the State moved to dismiss the Level 6 felony maintaining a common nuisance and Class B misdemeanor possession of a controlled substance charges, and the trial court granted the request. Harbaugh's jury trial began on April 18, 2017. The jury returned a guilty verdict on all remaining counts. On May 19, 2017, the trial court sentenced Harbaugh to an aggregate sentence of nine years with four years suspended.

         Discussion and Decision

         [¶8] The trial court admitted the evidence collected as part of the vehicle search. Harbaugh did not seek interlocutory review of the denial of her motion to suppress but instead appeals following trial. This issue is therefore "appropriately framed as whether the trial court abused its discretion by admitting the ...


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