Steven Lamont Cunningham v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 26 2019, 7:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Valerie K. Boots Attorney General of Indiana
Marion County Public Defender Agency
Matthew B. MacKenzie
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Lamont Cunningham, August 26, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2988
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jose D. Salinas, Judge
Trial Court Cause No.
49G14-1804-F6-12533
Kirsch, Judge.
[1] Steven Lamont Cunningham (“Cunningham”) brings this permissive
interlocutory appeal of the denial of his motion to suppress, which had asked
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 1 of 4
the trial court to exclude from evidence pills that police seized from the car in
which Cunningham was a passenger. Cunningham raises several issues
regarding the seizure of the pills, but we find as dispositive the following issue
raised by the State: whether Cunningham had standing to challenge the seizure
of the pills.
[2] We affirm.
Facts and Procedural History
[3] On August 27, 2018, Officer Lane Cooper (“Officer Cooper”) of the
Indianapolis Metropolitan Police Department pulled over a white Chevy Tahoe
for speeding. Tr. Vol. II at 7-9. Derrick House (“Derrick”) was the driver of the
vehicle, which was registered to Julia House (“Julia”), Derrick’s sister, and
Cunningham was the front seat passenger. Id. at 10-12, 15. Officer Cooper
obtained Derrick’s and Cunningham’s identification and discovered an open
warrant for Cunningham’s arrest. Id at 9-10, 15. Officer Cooper re-approached
the vehicle on the passenger side, asked Cunningham to step out of the vehicle,
and arrested him. Id. at 15. When Cunningham stood up, Officer Cooper
noticed six oblong pills on the passenger seat. Id. After walking Cunningham
back to the police car, Officer Cooper returned to the vehicle and seized the
pills, which were later determined to contain hydrocodone. Id. at 15-16;
Appellant’s App. Vol. II at 9. Cunningham denied that the pills were his. Id. at
16.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 2 of 4
[4] On April 18, 2018, the State charged Cunningham with Level 6 felony
possession of a narcotic drug.1 Appellant’s App. Vol. II at 10. On July 2, 2018,
Cunningham filed a motion to suppress, and on August 27, 2018, the trial court
heard the motion. Id. at 38-39; Tr. Vol. II at 1-29. In denying the motion, the
trial court found that Cunningham had standing to challenge the seizure of the
pills but ruled the seizure did not violate Cunningham’s rights. Tr. Vol. II at 28-
29. Cunningham now appeals.
Discussion and Decision
[5] Cunningham first contends that Officer Cooper did not have probable cause to
seize the pills and have them tested. Second, he argues that the seizure of the
pills was not justified by the exception to the warrant requirement for searches
incident to an arrest. Third, he claims that the seizure of the pills was not
reasonable under the Indiana Constitution.
[6] We do not reach these issues because we agree with the State that Cunningham
has failed to demonstrate that he had standing to challenge the seizure of the
pills. See Livingston v. State, 542 N.E.2d 192, 194 (Ind. 1989). Fourth
Amendment rights are personal and may not be vicariously asserted. Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978); Allen v. State, 893 N.E.2d 1092, 1096 (Ind.
Ct. App. 2008), trans. denied. A defendant must demonstrate a legitimate
expectation of privacy in the item that is searched. Livingston, 542 N.E.2d at
1
See Ind. Code § 35-48-4-6(a).
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194; Allen, 893 N.E.2d at 1096. A defendant “aggrieved by an illegal search
and seizure only through the introduction of damaging evidence secured by the
search of a third person’s premises has not had any of his Fourth Amendment
rights infringed.” Rakas, 439 U.S. at 134. In reviewing whether an expectation
of privacy exists, we look to whether a defendant has control over or ownership
in the area to be searched. See Lee v. State, 545 N.E.2d 1085, 1091 (Ind. 1989).
“Passengers in a car driven by the owner do not have standing to challenge a
search of the car.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (citing
Pollard v. State, 270 Ind. 599, 604, 388 N.E.2d 496, 502 (1979) (quoting Rakas,
439 U.S. at 148)). “[F]ederal precedent addressing standing of a passenger
asserting an interest in a searched vehicle is equally applicable under the
Indiana Constitution.” Campos, 885 N.E.2d at 598.
[7] Here, Cunningham lacked standing to challenge the search and seizure of the
pills because he has failed to demonstrate that he had a legitimate expectation
of privacy in the vehicle. See Livingston, 542 N.E.2d at 194. Cunningham did
not have control or ownership of the vehicle because it belonged to a third
person, Julia. See Rakas, 439 U.S. at 134; Lee, 545 N.E.2d at 1091. Thus, as a
passenger in a car that belonged to another person, Cunningham lacked
standing to challenge the seizure of the pills under both the United States and
Indiana Constitutions. See Campos, 885 N.E.2d at 598.
[8] Affirmed.
Baker, J., and Crone, J., concur.
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