BRADFORD, Judge.
Appellant-Petitioner Leondre Woodson appeals from the post-conviction court's denial of his petition for post-conviction relief ("PCR"), in which Woodson claims that he received ineffective assistance of trial counsel. We affirm.
The facts underlying this post-conviction proceeding were detailed by this court in our unpublished disposition of Woodson's direct appeal:
Woodson v. State, No. 53A05-0604-CR-174, 2007 WL 506890, slip op. at 1-2 (Ind. Ct.App., Feb. 19, 2007), trans. denied.
Prior to trial, Woodson filed a motion to suppress the evidence seized from the rental car. On December 9, 2005, the trial court denied Woodson's motion to suppress. During the subsequent trial, Woodson's trial counsel did not renew any objection to evidence regarding the items seized from the rental car. On December 13, 2005, Woodson was convicted of Class C felony cocaine possession, Class C felony possession of cocaine while in possession of a firearm, and Class B felony possession of a firearm by a serious violent felon. The trial court sentenced Woodson to an aggregate sentence of twenty years of incarceration. On direct appeal, this court ordered Woodson's possession of cocaine while in possession of a firearm conviction vacated and affirmed in all other respects, leaving his aggregate sentence unaffected. See Woodson, No. 53A05-0604-CR-174, slip op. at 5.
On May 13, 2008, Woodson filed his pro se PCR petition. On February 10, 2011, Woodson filed his amended PCR petition. On August 24, 2011, the post-conviction court denied Woodson's PCR petition.
Our standard for reviewing the denial of a PCR petition is well-settled:
Hall v. State, 849 N.E.2d 466, 468, 469 (Ind.2006) (internal citations and quotations omitted).
We review claims of ineffective assistance of counsel based upon the principles enunciated in Strickland v. Washington,
Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel's performance if the petitioner suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.1999).
Woodson contends that his trial counsel was ineffective for failing to object at trial to the admission of evidence related to the search of the rental car, thereby failing to preserve the issue for direct appeal. Woodson contends that (1) continued police detention and investigation beyond writing a traffic ticket violated Article I, Section 11 of the Indiana Constitution and (2) the record does not support a conclusion that he had apparent authority to consent to a search of the rental car, rendering the search improper under the Fourth Amendment to the United States Constitution. Woodson argues that raising these claims on appeal would have had a reasonable likelihood of success and that the failure to preserve them therefore prejudiced him.
Woodson contends that Officer Harris's continued investigation of him and Onyeji violated Article I, Section 11, of the Indiana Constitution, which provides that
The Indiana Supreme Court has noted that
Myers v. State, 839 N.E.2d 1146, 1153 (Ind.2005).
At the suppression hearing, Officer Harris testified regarding the traffic stop. According to Officer Harris, he was alone on patrol at approximately 11:30 p.m. when he pulled the rental car over. Upon receiving Onyeji's driver's license from him, Officer Harris observed Onyeji push aside a handgun when he reached for the registration. Onyeji had not previously warned Officer Harris of the presence of the handgun. At that point, Officer Harris pulled his weapon and ordered the duo to place their hands behind their heads while he called for backup, which arrived approximately four minutes later. After Woodson and Onyeji were removed from the car, Officer Harris verified with dispatch that the handgun in the glove compartment was not stolen, which took approximately three and one-half minutes. Officer Harris had by this point verified that Onyeji had a permit for the weapon.
Meanwhile, Officer Harris questioned Onyeji outside the car about where he had been and was told that the duo had driven to Gary, Indiana, and back that day. Onyeji, and soon thereafter Woodson, claimed that the purpose of the trip was to retrieve a copy of Woodson's birth certificate and an identification card so that he could cash a check. Soon after learning that the handgun was not stolen, Officer Harris was informed by another police officer that the car was rented, even though Onyeji owned his own vehicle. At this point, Officer Harris failed to obtain Onyeji's consent to search the car before obtaining Woodson's. Officer Harris indicated that, in light of his training and experience, renting a car when one owns one and making a one-day round trip to another city were possible indicators of narcotics activity. At some point, Woodson also indicated that he had paid for the rental car in cash. Finally, Officer Harris observed that Onyeji was "somewhat nervous during the stop" and that "he was just acting nervous to [him]" even before the officer drew his weapon. Tr. pp. 42, 43.
Under the circumstances, Woodson has failed to establish that the police acted unreasonably in continuing the investigation to the point where they obtained consent to search the rental car. At all points of the encounter, police were justified in having at least a reasonably high degree of concern or suspicion that some sort of criminal activity might be occurring. After the traffic stop, Onyeji seemed nervous to Officer Harris, even before the officer drew his weapon. Perhaps most significantly, Onyeji's failure to inform Officer Harris of the handgun in the glove compartment, at the very least, could lead a reasonable officer to suspect that he intended to keep its presence concealed, perhaps because it was illegally possessed or to ensure continued access to it. Moreover, as we have recognized, "it is not uncommon for drug dealers to carry weapons." Swanson v. State, 730 N.E.2d 205, 211 (Ind.Ct.App.2000), trans. denied. Officer Harris's detention of the duo at gunpoint was fully justified, not only by officer safety concerns but by concerns regarding criminal activity.
Furthermore, what police learned after backup arrived only increased what was already a reasonable degree of suspicion that criminal activity might be afoot. Police learned that the car was rented even
The intrusion of the detention before consent was obtained into Woodson's and Onyeji's activities was minimal. The record indicates that the stop had lasted not much longer than seven and one-half minutes before Officer Harris obtained consent to search the rental car, most of which time was spent waiting for backup and for receiving information from dispatch regarding Onyeji's handgun. There was no invasive search of either Onyeji's or Woodson's person at any point.
Finally, we conclude that the needs of law enforcement were great. First, the obvious need to maintain officer safety was clearly implicated in this case. Officer Harris discovered very early on the presence of one deadly weapon and expressed the reasonable concern that "maybe, perhaps, they could have been armed with other weapons on their persons[.]" Tr. p. 11. As the stop progressed, and indications of illegal narcotics activity became apparent, the equally obvious need to deter, prevent, and punish drug trafficking was implicated. Given the reasonably high degree of suspicion of criminal activity, the minimally intrusive nature of police conduct prior to obtaining consent, and the great needs of law enforcement, Woodson has failed to establish that police detention of him until they obtained consent to search the rental car was unreasonable under Article I, Section 11. As such, Woodson has failed to carry his burden to establish that his trial counsel's failure to preserve the issue for appeal prejudiced him.
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). "In Wolf [v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)]
Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001).
Woodson contends that his consent to the search of the rental car was invalid because he did not have actual or apparent authority to give such consent.
Krise, 746 N.E.2d at 967.
Matlock, Rodriguez, and their progeny, however, do not apply here for the simple reason that those cases, by their plain language, apply to third-party consent, and Woodson was not a third party. Moreover, to the extent that Woodson requests that we extend Matlock and Rodriguez to cover consent by second parties, we decline to do so. We cannot conclude that a defendant still has a reasonable expectation of privacy in a place or thing he himself has allowed to be searched, assuming, of course, that he ever had one. "An expectation of privacy gives rise to Fourth Amendment protection where the defendant had an actual or subjective expectation of privacy and the claimed expectation is one which society
The judgment of the post-conviction court is affirmed.
VAIDIK, J., and CRONE, J., concur.