from the Marion Superior Court The Honorable Stanley Kroh,
Magistrate Trial Court Cause No. 49G03-1711-F4-44873.
ATTORNEYS FOR APPELLANT Valerie K. Boots Megan E. Shipley
Marion County Public Defender Agency Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caryn Nieman-Szyper Deputy Attorney General
Darden, Senior Judge.
of the Case 
McAnalley appeals his conviction after a jury trial of Level
4 felony unlawful possession of a firearm by a serious
violent felon and his guilty plea to an habitual
offender enhancement. We affirm.
McAnalley presents three issues, which we restate as the
I. Did the warrantless search of McAnalley's wife's
vehicle and the seizure of the handgun found therein violate
the protections afforded under the Fourth Amendment to the
United States Constitution?
II. Was the search of McAnalley's wife's vehicle and
seizure of the handgun found therein unreasonable under the
protections afforded by article 1, section 11 of the Indiana
III. Did the trial court commit reversible error by rejecting
McAnalley's offer to stipulate to a prior conviction for
a Class B felony qualifying him as a serious violent felon
unable to lawfully possess a handgun, by allowing the jury to
learn the name and nature of his prior conviction, and by
discussing that robbery conviction in the jury instructions?
and Procedural History
After midnight on November 17, 2017, in the early morning
hours of November 18, 2017, McAnalley and a friend, Elgin
Wilson, were in Indianapolis at the home of another friend.
McAnalley's wife, Desiree, called and offered to pick up
Elgin and her husband because it was cold outside. On the way
home, the three were pulled over in a traffic stop near the
intersection of Raymond Street and Keystone Avenue by Officer
Douglas Lepsky of the Indianapolis Metropolitan Police
Officer Lepsky was in a fully marked police vehicle and
uniform patrolling an area that was described by him as
Uh, give or take, it's north and south-let's see,
East Raymond, so-the whole area's-especially around
Keystone and Raymond can be a touch and go area sometimes. We
get calls on narcotic investigations around that area.
And-but normally the-the actually[sic] area I stopped them
has been recently pretty quiet. . . . [it could be considered
a high crime area]. . . (affirming that description posed in
Tr. Vol. II, pp. 15, 17.
Officer Lepsky ran the license plate of the vehicle in front
of him, and pulled the vehicle over after discovering that
the license plate was registered to a different vehicle than
the one he was following (i.e., the stop was for improper
plates). The vehicle in front of him was a Chevy, but the
license plate was registered for a Pontiac. He initiated the
traffic stop in what he also described as a residential area
by only activating his emergency lights and spotlight, but
not his siren.
The vehicle commenced to a "slow roll, and then
eventually stopped." Id. at 6. Officer Lepsky
testified that as he observed the vehicle come to a stop, he
saw the front-seat passenger, later identified as McAnalley,
"leaning forward towards the dashboard."
Id. at 74. The officer characterized those actions
as a "furtive movement." Id. at 77. The
State later used that same terminology in closing and
rebuttal closing argument at trial; (furtive gestures when
defendant leaned toward the dashboard where the glove box
would be) Id. at 198-99; (furtive gestures when
defendant moved toward the glove box before officer
approached car) Id. at 214.
Officer Lepsky first approached the driver's side door of
the vehicle and informed Desiree, the driver, that she had
been pulled over for displaying an improper license plate.
The officer obtained verbal identification from the three
occupants of the vehicle. McAnalley was in the front
passenger seat and Elgin was seated in the back behind
Desiree. After searching the names and birthdates provided by
the three occupants of the vehicle, Officer Lepsky learned
that McAnalley had an active felony warrant for his arrest.
The officer was unaware of the basis for the issuance of the
warrant. Id. at 14.
Other officers were summoned to the scene, per normal IMPD
procedure, to make the arrest on the active warrant. When
Officers Matthew Coffing and Brent McDonald arrived, Officer
Lepsky approached the passenger side of the vehicle, opened
the door, and instructed McAnalley to step out of the
vehicle. McAnalley complied, Officer Lepsky told him about
the warrant, and placed McAnalley in handcuffs. The officer
then patted McAnalley down and found an empty gun holster
clipped to the front waistband of his pants.
Next, the officers had McAnalley stand, handcuffed, near the
rear of the vehicle. Later Officer Lepsky instructed Desiree
and Elgin to exit the Chevy. He testified that all three
occupants of the vehicle were compliant. Id. at 13.
They stood outside of the vehicle but were a slight distance
Officer Lepsky and Officer Coffing then performed what
Officer Lepsky called a "protective sweep" of the
interior of the vehicle, while Officer McDonald stood near
the rear of the vehicle "keeping an eye on
everybody." Id. at 8, 15. In further
explanation of what was described as a protective sweep,
Officer Lepsky testified as follows:
All occupants were asked to exit the vehicle, and we did
what's called a protective sweep where you just look
around in plain view to make sure there are no guns or any
weapons that could cause immediate threat or danger. . . .We
did a sweep. I started on the, I believe it was the
driver's side and Officer Coffing was on the passenger
side. . . .[Answers affirmatively when asked:] When
you're doing a protective sweep, you're just looking
with your eyes to make sure that there's nothing that can
be used to harm you. . . .[Answers in the negative when
asked]: [W]hen you are performing a protective sweep, do you
touch anything or manipulate anything with your hands? . . .
Id. at 8, 15, 16, 79.
During the course of the protective sweep, officers looked at
a glove box directly in front of the front passenger seat.
The glove box in this vehicle, however, was missing its
cover. Inside the open glove box area, in plain view, the
officers saw the handle and magazine of a handgun. Neither
officer had observed the handgun when they first removed
McAnalley from the vehicle. Id. at 16.
More specifically, the following testimony was offered by
Officer Lepsky about the condition of the glove box, what was
discovered, and what ensued.
Uh, we discovered that there was a-a glove box missing the
front cover, and in plain view when you just looked at that
glove box, you could see a handle and a magazine of a
handgun. . . .There was no cover on the glove box. We
didn't have to manipulate anything, open anything, there
was no cover, no door on that glove box at that time. . . . I
requested Officer Coffing, who is a gun liaison to secure the
gun and do DNA swabs and fingerprints off of it. . . .Uhm, I
read Miranda Rights to Mr. McAnalley off an index card I keep
in my front right pocket, ma'am. . . .[Answers
affirmatively to the question]: Did he indicate that he did
understand his rights. . . .[Answers affirmatively to the
question if he had asked about the gun found in the vehicle].
. . . He said that it was his. That he knew he did-he
shouldn't have had it, but he bought it off of somebody
because he needed protection for himself and his family. . .
. He also admitted that he was a felon. [After stating he did
not talk to the other two occupants of the vehicle in
reference to the gun, Officer Lepsky testified that at that
time neither one volunteered that the gun was theirs].
Id. at 8, 10, 12, 83, 84, 85.
Officer Lepsky testified that during the protective sweep the
officers found "a black pistol, semi-automatic"
that was located in the glove box which was missing the front
cover. Id. at 79.
There were no outstanding warrants or incriminating
information about Desiree and Elgin and they were allowed to
leave the scene in the vehicle after the handgun was
Officer Coffing secured the handgun in a gun box in his
patrol car. He transported the handgun to the police station
because he did not want to process the handgun in the rain.
Once at the police station and while wearing protective
gloves to preserve the evidence, Officer Coffing first
swabbed it for DNA in an attempt to collect fingerprints. The
DNA was submitted for further testing and the findings were
"a complex mixture." Id. at
Fingerprint samples, which were also submitted for testing,
showed there was "insufficient ridge detail" to
perform a comparison. Id. at 144.
Subsequently, the State charged McAnalley with Level 4 felony
unlawful possession of a firearm by a serious violent felon
and with being an habitual offender. After a pre-trial hearing
and briefing by the parties on McAnalley's motion to
suppress the handgun, the trial court denied the motion.
McAnalley's motion to suppress stated in pertinent part
1. Following a traffic stop, officers of the Indianapolis
Metropolitan Police Department conducted a search of the
vehicle in which Mr. McAnalley was a passenger;
2. That the actions of the Indianapolis Metropolitan Police
Department amounted to an illegal search of the vehicle;
3. That the search amounted to an illegal search, in
violation of Mr. McAnalley's rights as protected by the
Fourth and Fourteenth Amendment to the United States
Constitution and by Article I, Section 11 of the Indiana
Constitution. Therefore, any evidence seized as a result of
that illegal search should be suppressed and excluded from
evidence at trial in this matter.
Appellant's App. Vol. II, p. 87.
The trial court stated in pertinent part as follows when
denying the motion to suppress:
1. On March 27, 2018 the parties presented evidence and
argument on Defendant's Motion to Suppress. The parties
filed supporting memoranda on April 2, 2018.
2. The court has considered the officer's testimony that
Defendant was the front seat passenger in a vehicle stopped
due to an improper license plate. After obtaining the
identification of the driver, the Defendant, and a back seat
passenger, the officer learned Defendant had an outstanding
warrant in a felony case. The officer testified he saw the
Defendant lean forward in his seat in the direction of the
glove box. In a search incident to arrest for the outstanding
warrant the officer discovered an empty handgun holster
tucked into Defendant's waist band. Assisting officers
had the other occupants of the vehicle removed from the
vehicle; the officers conducted what Officer Lepsky
characterized as a protective sweep of the vehicle, in
particular the front seat passenger area. The officer
testified that the glove box directly in front of the front
passenger seat was missing its door or cover. The contents of
the glove box were visible without opening any compartments.
Officer Lepsky saw in the left side of the glove box what he
knew to be a handgun. The firearm was recovered. Defendant
was arrested. The vehicle was released to the driver; driver
and back seat passenger were released. At the hearing,
photographs of the firearm in the glove box were admitted as
[Under Fourth and Fourteenth Amendment analysis the court
held:] under the facts of this case the officer's brief
examination of the glovebox[sic] does not run afoul of
Defendant's constitutional protections when the officer
is aware of the Defendant's active felony warrant,
observes the Defendant make movements toward the glove box,
and observes an empty firearm holster on Defendant's
[Under Indiana constitutional analysis the court held:]
Considering the totality of the circumstances in this case,
the court finds the police conduct to be reasonable. The
initial stop was based upon an improper license plate. Upon
identifying the individual in the vehicle, the officer
learned Defendant had an outstanding felony warrant. Upon
search incident to the arrest for the warrant the officer
observed the empty firearm holster on Defendant's person.
Having previously observed Defendant moving toward the glove
compartment, it is reasonable for the officer to look at the
glove compartment where the presence of the firearm was
immediately apparent. At this time the officer was aware of
the active felony warrant and therefore it would be illegal
for Defendant to possess a firearm. The officer did not open
any closed containers or open the glove box as the door was
Id. at 114-17.
Next, prior to trial, McAnalley filed a motion in limine. In
the motion, McAnalley argued in pertinent part as follows:
OTHER CRIMES, WRONGS AND ACTS
That the facts and circumstances of this case and the nature
of the present charge may require the Defendant to exercise
his constitutional right to testify on his own behalf;
1. That the State and its witnesses should be ordered to
refrain from mentioning any and all character evidence
regarding the Defendant in the following forms: other wrongs,
prior bad acts, and non-charged conduct or criminal offenses
not reduced to convictions and admissible pursuant to
Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d
210 and Indiana Rule of Evidence 404 (b);
2. That the State and its witnesses should be ordered to
refrain from mentioning any and all evidence of criminal
offenses and uncharged conduct of Defendant as such conduct
is irrelevant, having no tendency to make the existence of
any consequential fact more or less probable. Indiana Rule of
Evidence 401. Irrelevant evidence is inadmissible. Indiana
Rule of Evidence 101. The prejudicial effect of mentioning
this uncharged conduct would substantially outweigh any
probative value it may have and should be excluded. Indiana
Rule of Evidence 403;
PRIOR CONTACT WITH CRIMINAL JUSTICE SYSTEM
3. That the Defendant has prior contact with the criminal
justice system. Prior contact is irrelevant, because it would
have no tendency to make the existence of any consequential
fact more or less probable. Indiana Rule of Evidence 401.
Irrelevant evidence is inadmissible. Indiana Rule of Evidence
101. That the prejudicial effect of evidence of prior contact
with the criminal justice system would substantially outweigh
any probative value it may have and should be excluded.
Indiana Rule of Evidence 403;
CURRENT CONTACT WITH THE CRIMINAL JUSTICE SYSTEM
4. That the Defendant at the time of the arrest was serving a
sentence on Marion County Community Corrections. That serving
this sentence is irrelevant to the case at bar, because it
would have no tendency to make the existence of any
consequential fact more or less probable. Indiana Rule of
Evidence 401. Irrelevant evidence is inadmissible. Indiana
Rule of Evidence 101. That the prejudicial effect of evidence
of current contact with the criminal justice system would
substantially outweigh any probative value it may have and
should be excluded. Indiana Rule of Evidence 403;=
5. That the Defendant had a violation filed against him from
Marion County Community Corrections at the time of his arrest
and an outstanding warrant. That this violation and warrant
is irrelevant, because it would have no tendency to make the
existence of any consequential fact more or less probable.
Indiana Rule of Evidence 401. Irrelevant evidence is
inadmissible. Indiana Rule of Evidence 101. That the
prejudicial effect of evidence of prior contact with the
criminal justice system would substantially outweigh any
probative value it may have and should be excluded. Indiana
Rule of Evidence 403;
6. That at the time the defendant was charged with this case,
an empty gun holster was found on his person. That the fact
that he had a holster on his person should be
excludedff[sic], because it would have no tendency to make
the existence of any consequential fact more or less
probable. Indiana Rule of Evidence 401. Irrelevant evidence
is inadmissible. Indiana Rule of Evidence 101. That the
prejudicial effect of evidence of ongoing police
investigations would substantially outweigh any probative
value it may have and should be excluded. Indiana Rule of
7. That the State and its witnesses should be ordered to
refrain from referring to Defendant's invocation of his
right not to testify as well as the exercise of his right to
remain silent. U.S. Constitution, Amendments[sic]; Indiana
Constitution, Article I, § §[sic] 14;
8. That the State should be ordered to redact any
inadmissible evidence from any taped statement, photographs,
or other documents which may be introduced into evidence;
9. That the State of Indiana and its witnesses should be
ordered to refrain from presenting any expert opinions
without first establishing the credibility of such witnesses
as experts. Indiana Rule of Evidence 701 and 702;
10. That the State and its witnesses should be ordered to
refrain from mentioning any prior convictions which will be
used for the purpose of enhancement until a later and
separate phase of the trial;
Id. at 130-33.
At the start of his jury trial, McAnalley also objected to
the use of the term "serious violent felon" and to
reference of the specific name of his prior crime resulting
in a conviction. Tr. Vol. II, pp. 27-28. McAnalley offered to
stipulate to the fact that he is a serious violent felon and
requested that the jury only be informed that he was a person
who could not lawfully have a gun (a practice defense counsel
suggested was used in another courtroom in criminal cases in
Marion County). Id. at 28. In response, the State
agreed to remove the language using the term serious violent
felon from the instruction addressing the charged crime but
argued that the language about McAnalley's prior Class B
felony robbery conviction was an essential element of the
charged offense. Id. at 29.
After hearing the arguments of the parties on the motion in
limine and the proposed instructions, the trial court agreed
that the language referring to McAnalley as a serious violent
felon should be removed from the jury instruction and ordered
the State not to refer to McAnalley as such during trial.
Id. at 32.
To provide context for the discussions regarding how the
trial court chose to address McAnalley's prior robbery
conviction, we reproduce Preliminary Instruction Number 4 and
Preliminary Instruction Number 5, which were given over his
Instruction Number 4
In this case, the State of Indiana has charged the Defendant
with Count: I: Possession of a firearm in violation of I.C.
35-47-4-5, a Level 4 felony. The charge reads as follows:
On or about November 18, 2017, Robert McAnalley having
previously been convicted of Robbery, a Class B felony, in
Marion Superior Court under Cause Number 49G010907FB059960 on
or about April 23, 2010 did ...