from the Marion Superior Court The Honorable Ronnie Huerta,
Magistrate Trial Court Cause No. 49G19-1612-CM-46098
ATTORNEY FOR APPELLANT Matthew M. Kubacki
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Supervising Deputy Attorney
Vaidik, Chief Judge.
Kenneth Davis was pulled over for a traffic violation. During
the stop, the police officer suspected that the truck was
stolen because Davis had a suspended driver's license and
could not prove ownership of the truck. After the officer had
Davis get out of the truck, he asked him if he had any
weapons in the truck. Davis said yes. The officer then
handcuffed Davis for officer safety and retrieved the gun
from the truck. The officer later learned that the truck was
not stolen but that Davis did not have a valid gun license.
Davis was not arrested on the scene, but he was later charged
with carrying a handgun without a license and driving while
suspended. Davis was found guilty on both charges.
Davis now appeals, arguing that the search of his truck was
unlawful and that the trial court therefore erred in
admitting the officer's testimony that he found a gun in
the truck. We find that the limited search of the truck for
the gun was lawful pursuant to Michigan v. Long, 463
U.S. 1032 (1983). That is, the officer reasonably believed
that Davis was dangerous and might gain immediate control of
the gun. We therefore affirm Davis's conviction for
carrying a handgun without a license. However, because both
parties agree that the evidence is insufficient to prove that
Davis committed driving while suspended, we reverse that
conviction and remand the case to the trial court with
instructions to issue an amended sentencing order.
and Procedural History
Around 2:30 p.m. on November 1, 2016, Indianapolis
Metropolitan Police Department Officer Christopher Morgan
pulled over Davis for failing to signal. Officer Morgan
approached Davis's truck and asked for his driver's
license and registration. Davis gave Officer Morgan his
driver's license but said he "didn't have any
paperwork" for the truck because he was in the process
of buying it. Tr. p. 9. Officer Morgan returned to his patrol
car to run Davis's driver's license and "the
vehicle's information." Id. Officer Morgan
learned that Davis's driver's license was suspended
and that "the truck belonged to somebody else."
Id. At this point, Officer Morgan became concerned
that the truck "could be stolen." Id.
Officer Morgan returned to the truck and asked Davis to step
out because he "didn't know whose vehicle it
was" and "wanted to confirm whether it was
stolen." Id. at 13-14; see also id. at
11. Once Davis was outside the truck, Officer Morgan asked
him "if he had any weapons in the" truck, and Davis
said yes. Id. at 14. Officer Morgan "handcuffed
[Davis] for officer safety" and took him to the rear of
the truck. Id. Officer Morgan waited for other
officers to arrive, at which point he "searched the
truck for the gun." Id. He found a handgun
(which was not in a case) on the front seat under a pile of
clothes. He also found a box of .40 caliber ammunition and a
couple of magazines (one of which was for a different gun).
According to Indiana Code section 35-47-2-1(a), "a
person shall not carry a handgun in any vehicle or on or
about the person's body without being licensed." But
there are exceptions, including: a person may carry a handgun
without being licensed if "the person carries the
handgun in a vehicle that is owned, leased, rented, or
otherwise legally controlled by the person, if the handgun
is: (A) unloaded; (B) not readily accessible; and (C) secured
in a case." Ind. Code § 35-47-2-1(b)(3). Officer
Morgan returned to Davis at the rear of the truck, gave him
Miranda warnings, and asked him where he purchased
the gun. Davis told him "ArmsList." Tr. p. 18.
Officer Morgan then asked Davis if he knew the owner of the
truck, and Davis said yes. After establishing that this
person owned the truck, Officer Morgan called him, and he
confirmed that Davis was buying the truck from him. Officer
Morgan had the owner come pick up the truck to avoid towing
fees. At some point, Officer Morgan learned that Davis's
gun license was "pending," meaning it had not yet
been issued. Id. Officer Morgan confiscated the gun.
Davis was not arrested at the time and was allowed to leave.
Appellant's App. Vol. II p. 35.
Thereafter, the State charged Davis with Class A misdemeanor
carrying a handgun without a license and Class A misdemeanor
driving while suspended (elevated from a Class A infraction
based on a prior judgment for the same violation). At the
bench trial, the State called one witness, Officer Morgan.
During Officer Morgan's testimony, defense counsel moved
to suppress evidence of the gun, arguing that Officer Morgan
"had no reason to search th[e] truck" for officer
safety because Davis was "in handcuffs at the back of
the truck." Tr. p. 15. At the conclusion of the
evidence, the trial court asked the parties to submit
authority on the legality of the search. Id. at 26.
Both Davis and the State submitted authority, Appellant's
App. Vol. II pp. 27, 34, and the trial court reconvened two
weeks later to announce its decision. Specifically, the trial
court found Davis guilty of Class A misdemeanor carrying a
handgun without a license. Tr. p. 36. The trial court did not
discuss the charge of driving while suspended. The court,
however, later issued a sentencing order reflecting that
Davis was found guilty of Class A misdemeanor carrying a
handgun without a license and driving while suspended as an
infraction (as a lesser included of the Class A misdemeanor).
Appellant's App. Vol. II p. 9.
Davis now appeals.
Davis raises two issues on appeal, one of which the State
concedes. That is, Davis argues that the evidence is
insufficient to prove that he committed the infraction of
driving while suspended because the State "did not
produce any . . . evidence as to the status of [his]
driver's license." Appellant's Br. p. 10. The
State concedes that it did not present such evidence.
Accordingly, we reverse Davis's conviction for ...