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Payne v. State

Court of Appeals of Indiana

December 5, 2019

Dennis Payne, Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court No. 49G02-1710-F5-37833. The Honorable Marc Rothenberg, Judge

          Attorney for Appellant Daniel Hageman Marion County Public Defender Agency Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

          VAIDIK, CHIEF JUDGE.

         Case Summary

         [¶1] Following a May 2017 hit and run in Indianapolis that left a pedestrian dead, Dennis Payne Jr. was convicted of Level 5 felony failure to remain at the scene of an accident resulting in death and Level 6 felony obstruction of justice. Payne now appeals, arguing that the police violated his Fourth Amendment rights when they seized his Toyota 4Runner-which matched the description of the SUV involved in the hit and run, had front-end damage consistent with a pedestrian strike, and was parked on a public street-without a warrant. Because Payne concedes that the police had probable cause to believe that his 4Runner was involved in the hit and run and the automobile exception to the warrant requirement applies to cars parked on property that is open to the public, we find no Fourth Amendment violation.

         Facts and Procedural History

         [¶2] Around 6:30 p.m. on May 19, 2017, Jairo Marquez-Nava called 911 to report a possibly impaired driver in a gray SUV heading south on Holt Road in Indianapolis. The driver was swerving and then appeared to be asleep at a stoplight. While Nava was on the phone with the 911 operator, the light turned green, and the driver rapidly accelerated. Nava gasped, "he just hit a lady!" Ex. 1. According to Nava, the SUV swerved off the road, struck a pedestrian walking in the grass, and continued onto the Sam Jones Expressway. The pedestrian, Karen Turner, was transported to Eskenazi Hospital, where she was pronounced dead.

         [¶3] Nava stayed on the phone with the 911 operator as he followed the SUV from the scene of the accident. Nava reported that the SUV stopped on the shoulder of the Sam Jones Expressway, where the driver got out and removed a broken piece-which Nava described as a one-foot shiny object-from the front passenger side of the SUV. Nava drove past the stopped SUV so that he did not look suspicious. When he looped back, the SUV was gone. Nava returned to the scene of the accident to speak with the police.

         [¶4] Indianapolis Metropolitan Police Department Detective Kelley Rhoda, who works with IMPD's hit-and-run unit, spoke with Nava. According to Detective Rhoda, Nava told her the following:

He said that a silver or gray SUV initially dispatched as a Toyota, and then he said Mitsubishi, struck a woman heading southbound on Holt, turned onto Sam Jones. He described a chubby white male, approximately 200 pounds, 5'11" with black hair wearing a black shirt.

Tr. Vol. II p. 227. Detective Rhoda also learned that the SUV had "rear window stickers" and a "distinct tow hitch." Id. at 242-43.

         [¶5] A few days later, Detective Rhoda reviewed video surveillance recorded around 6:30 p.m. on May 19 from a business along the Sam Jones Expressway. The video showed "a silver SUV on Sam Jones heading westbound that pulled over on the shoulder . . . momentarily and then proceed[ed] to the exit." Id. at 236. Detective Rhoda determined that the SUV was "a 2000 to 2002 Toyota 4Runner." Id. at 230.

         [¶6] Detective Rhoda then contacted the Indiana Bureau of Motor Vehicles "for a list of all 2000 to 2002 gray or silver Toyota 4Runners in Marion County." Id. at 231. She inspected each of the registered 4Runners for damage consistent with striking a pedestrian. Finding none, she got the same information for Morgan County, which borders the southwest corner of Marion County (according to Detective Rhoda, the SUV was heading southwest after the hit and run, see Tr. Vol. III p. 11).

         [¶7] The BMV listed only one 2000 to 2002 silver or gray Toyota 4Runner registered in Morgan County. The registered owner of this 4Runner was Oklevueha Native American Church located at 7145 Bethany Park in Martinsville, which was ...


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