Christopher Dent v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 25, 2016
• Docket: 18A05-1509-CR-1339
• Status: Published

Opinion

MEMORANDUM DECISION Feb 25 2016, 6:11 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alan K. Wilson Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Dent, February 25, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1509-CR-1339 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Linda Ralu Wolf, Appellee-Plaintiff. Judge Trial Court Cause No. 18C03-1502-F4-1

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 1 of 13 STATEMENT OF THE CASE

[1] Appellant-Defendant, Christopher Dent (Dent), appeals his conviction for

dealing in a schedule I controlled substance, a Level 4 felony, Ind. Code §§ 35-

48-4-2(a)(2); -2(d)(1) (2015); dealing in a schedule I controlled substance, a

Level 6 felony, I.C. § 35-48-4-2(a)(1); and maintaining a common nuisance, a

Level 6 felony, I.C. § 35-48-4-13(b)(2).

[2] We affirm.

ISSUE

[3] Dent raises one issue on appeal, which we restate as follows: Whether the trial

court abused its discretion when it admitted the evidence found pursuant to

Dent’s consent to search.

FACTS AND PROCEDURAL HISTORY

[4] On January 8, 2015, Corporal Jeff Stanley (Officer Stanley) of the Delaware

County Sheriff’s Department made a controlled buy of heroin from Dent with

the help of an informant at Dent’s residence on South Hackley Street in

Muncie, Indiana. At the time of the purchase, Dent was on home detention

pending pre-trial on an unrelated offense and was required to wear an electronic

monitoring device. The informant was given $60, which had been

photocopied, and was outfitted with a video recording device. The video

recording showed that the informant met with Dent, and Dent handed him a

small piece of folded paper containing 0.10 grams of heroin.

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 2 of 13 [5] On January 20, 2015, Officer Stanley and his colleague, Corporal Lenny Popp

(Officer Popp), continued their investigation and went to Dent’s new residence

on North Macedonia Avenue in Muncie to potentially arrest Dent. Officer

Popp, wearing a full police uniform, knocked on the front door. Ricky

Shannon (Shannon) answered the door. The officer explained they were

looking for Dent, and Shannon “without saying come in, just kind of opened up

the door … [and] acknowledged that [the officer] could come into the residence

to talk to him.” (Transcript p. 40). Officer Popp entered the residence and

Officer Stanley followed. Dent’s sister and her young child were also present in

the residence. Neither Shannon nor Dent’s sister—who have a child together—

ever asked the officers to leave. The officers asked Shannon where Dent’s

home monitoring device was located. Shannon stated that it was in the kitchen

and walked the officers there. While following Shannon to the kitchen, Officer

Stanley noticed digital scales with a white powder on them in a bedroom

through the open door. Officer Stanley did not go in the bedroom, but asked

Officer Popp to look in as well. Officer Popp saw the digital scales and the

residue. Shannon stated that it was Dent’s bedroom.

[6] Officer Stanley learned that Dent might be at the community corrections office

and left to verify. Officer Popp remained in the residence to prevent destruction

of the evidence. He talked to Shannon and Dent’s sister without impeding their

freedom of movement. Officer Popp learned that the residence was Dent’s and

they rarely stayed there. During this time, neither Shannon nor Dent’s sister

asked Officer Popp to leave.

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 3 of 13 [7] Meanwhile, Officer Stanley went to the community corrections office, saw

Dent sitting in the waiting room, and arrested him. Officer Stanley informed

Dent of the reason for the arrest and stated that he wanted Dent’s consent to

search Dent’s residence. Officer Stanley then drove Dent back to the residence.

Once they arrived, Officer Stanley removed Dent’s handcuffs. They were

outside of the residence when Dent stated that he wanted to speak with

Shannon. Officer Stanley allowed the two to talk and then read a consent to

search form to Dent. Dent became very belligerent, refused to sign the form,

and told Officer Stanley to get a search warrant. Officer Popp, still inside the

residence, heard a “ruckus” outside because Dent was “getting pretty fired up.”

(Tr. pp. 44, 354). Officer Stanley explained to Dent that he was going to obtain

a search warrant, that Dent would be arrested, and attempted to handcuff Dent,

but Dent pulled away. At that point, Officer Stanley placed Dent against the

outside wall of the residence and handcuffed him “us[ing] enough force to get

the job done.” (Tr. p. 29). Officer Popp walked outside and placed Dent in his

vehicle.

[8] Inside the vehicle, Officer Popp explained to Dent that they were narcotics

officers investigating him and reiterated that Officer Stanley was going to obtain

a search warrant. Officer Popp, assuming that Dent had requested a lawyer,

said that the officers could not talk to Dent because Dent had asked for a

lawyer. Dent responded, “I never said that. I never lawyered up. I will talk to

you guys and will give [my] consent.” (Tr. pp. 47, 357). Dent continued

talking and asked if he would be allowed to go free or given consideration if he

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 4 of 13 gave the officers permission to search. Officer Popp explained that because

Dent had been selling drugs on in-home monitoring he would be going to jail

and further stated he could not make any promises or coerce Dent into signing

anything. Dent asked if he could talk to Officer Stanley.

[9] Officer Popp called Officer Stanley and informed him that Dent had changed

his mind and would consent to the search. The officers presented a consent to

search form to Dent, which stated, in pertinent part, as follows:

[H]aving been informed of my constitutional rights (Miranda Warning), my right to not have a search made of my premises and/or motor vehicle(s) hereinafter mentioned without a search warrant, my right to refuse to consent to a search, and my right to confer and speak with an attorney before I grant permission for a search, and my right to confer and speak to an attorney before I grant permission for a search and to have an attorney appointed by the court for such purposes if I cannot afford one, here by authorize, consent and allow. . . .

***

Indiana Pirtle Warning

You have the right to require that a search warrant be obtained before any search of your residence, vehicle or other premises. You have the right to refuse to consent to any such search. You have the right to consult with an attorney prior to giving consent to any such search. If you cannot afford an attorney, you have the right to have an attorney provided to you at no cost.

(State’s Ex. 9).

[10] Dent signed the form in three different places. The officers searched the house.

In Dent’s bedroom, they discovered a loaded shotgun, a handgun underneath

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 5 of 13 the mattress, syringes, and an orange cologne box with 4.13 grams of heroin

inside.

[11] On January 27, 2015, the State filed an Information charging Dent with: Count

I, dealing in a schedule I controlled substance, a Level 4 felony, I.C. §§ 35-48-4-

2(a)(2); -2(d)(1); Count II, dealing in a schedule I controlled substance, a Level

6 felony, I.C. § 35-48-4-2(a)(1); and Count III, maintaining a common

nuisance, a Level 6 felony, I.C. § 35-48-4-13(b)(2). On June 17, 2015, Dent

filed a motion to suppress the evidence found inside Dent’s residence, which

the trial court denied following an evidentiary hearing on June 26, 2015. At the

conclusion of a two-day jury trial, the jury found Dent guilty as charged on

June 30, 2015. On August 10, 2015, the trial court sentenced Dent to an

aggregate term of eight years executed at the Department of Correction.

[12] Dent now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[13] We initially note that Dent frames our standard of review with regard to the

trial court’s denial of his motion to suppress evidence. However, because Dent

appeals after a completed trial, the question of whether the trial court erred in

denying his motion to suppress is no longer viable. Reinhart v. State, 930 N.E.2d

42, 45 (Ind. Ct. App. 2010) (internal citations omitted). The issue is more

appropriately framed as whether the trial court abused its discretion when it

admitted the evidence at trial. Id. When we review a trial court’s ruling on the Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 6 of 13 admissibility of evidence resulting from an allegedly illegal search, we do not

reweigh the evidence, and we consider conflicting evidence most favorable to

the trial court’s ruling. Id. We also defer to the trial court’s factual

determinations unless clearly erroneous. Id. However, we consider afresh any

legal question of the constitutionality of a search or seizure. Id.

II. Officers Entry into the Residence

[14] Dent claims that the officers’ initial entry into his residence was illegal. He

specifically asserts that Shannon lacked either actual or common authority over

the premises to consent to the officers’ entry.

[15] We have previously stated that a third party may consent to police officers

entering onto the property of another and searching the premises if actual

authority exists. Starks v. State, 846 N.E.2d 673, 679 (Ind. Ct. App. 2006). If

actual authority cannot be shown, then facts demonstrating that the consenting

party had apparent authority to consent could prove a lawful search. Primus v.

State, 813 N.E.2d 370, 374 (Ind. Ct. App. 2004). Under the apparent authority

doctrine, a search is lawful if the facts available to the officer at the time would

cause a person of reasonable caution to believe that the consenting party had

authority over the premises. Id. at 374-75. The State bears the burden of

proving that the third party possessed the authority to consent. Id. at 375.

[16] In Starks, an officer knocked on the door and a third party, someone other than

a homeowner, answered it. Starks, 846 N.E.2d at 679. The officer explained

that he was there to check on the welfare of the homeowner, and the third party

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 7 of 13 stated that the homeowner could not come to the door because she had an

amputated leg. Id. The third party let the officers in and then escorted one of

the officers to the homeowner. Id. The third party clearly demonstrated his

sufficient knowledge and relationship to the property and the homeowner.

Because the third party was the homeowner’s grandson and a resident of the

home, we held that he had the authority to admit the officers into the house.

Id.

[17] Here, similar to Starks, someone other than the homeowner opened the door,

and Officer Popp explained that he was looking for Dent. Shannon stated Dent

was not there. He then “without saying come in … opened up the door and

just stepped back, so [the officers] walked in to talk to him.” (Tr. p. 40). See

McIlquham v. State, 10 N.E.3d 506, 512 (Ind. 2014) (citing United States v.

Villegas, 388 F.3d 317, 325 (7th Cir. 2004) (consent to enter held valid when the

defendant opened the door and allowed the police officers to enter after the

officers had identified themselves, asked permission to speak with the

defendant, and did not threaten the defendant or brandish their weapons) and

United States v. Walls, 225 F.3d 858, 863 (7th Cir. 2000) (consent to enter held

valid when the defendant opened the door and stepped back to allow the

agents’ entrance after they had identified themselves and what they were

investigating)). In essence, Shannon non-verbally consented to the officers’

entry.

[18] When asked about Dent’s home monitoring device, Shannon stated that it was

in the box in the kitchen and then escorted the officers there. Shannon

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 8 of 13 demonstrated his sufficient relationship to or mutual use of the property

because at the time of the entry he had knowledge of Dent’s whereabouts, had

knowledge of the location of Dent’s home monitoring device, and was familiar

with the layout of Dent’s residence. Later, the officers learned that Shannon

knew Dent for several years, had blood relations to Dent, had his weapons in

Dent’s bedroom, and had an explicit permission to stay there that day and the

previous night. As such, it was reasonable for the officers to believe Shannon

had apparent authority to admit them into the house to check the monitoring

device and talk to the individuals inside. See Starks, 846 N.E.2d at 679.

III. Consent to Search

[19] Dent further asserts that his consent to search his residence was not voluntary.

Generally, a search warrant is a prerequisite to a constitutionally proper search

and seizure. Primus, 813 N.E.2d at 374 (internal citations omitted). When a

search is conducted without a warrant, the State has the burden of proving that

an exception to the warrant requirement existed at the time of the search. Id.

Warrantless searches and seizures inside the home are presumptively

unreasonable. Id. However, one well-recognized exception to the warrant

requirement is a voluntary and knowing consent to search. Id. The theory

underlying the consent exception is that, when an individual gives the State

permission to search either his person or property, the governmental intrusion is

presumably reasonable. Id.

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 9 of 13 [20] Whether consent to a search was given voluntarily is a question of fact to be

determined from the totality of all the circumstances. State v. Cunningham, 26

N.E.3d 21, 25 (Ind. 2015) (internal quotation marks and citations omitted). We

consider conflicting evidence most favorably to the trial court's ruling, as well as

undisputed evidence favorable to the defendant. Id. It is the State's burden to

prove that consent to a search was in fact voluntarily given, and not the result of

duress or coercion, express or implied. Id.

[21] Dent specifically claims that the language of the Pirtle warning in the form

signed by him was not sufficient because it failed to state that he was “entitled

to the presence and advice of counsel prior to” consenting to the search.

(Appellant’s Br. p. 13) (emphasis original).

[22] In Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), our supreme court held that “a

person who is asked to give consent to a search while in police custody is

entitled to the presence and advice of counsel prior to making the decision

whether to give such consent.” Id. at 640. Our supreme court, however, further

refined the doctrine in Jones v. State, 655 N.E.2d 49 (Ind. 1995), stating that a

“person in custody must be informed of the right to consult with counsel about

the possibility of consenting to a search before a valid consent can be given.”

Id. at 54 (citations omitted). Here, following a Miranda warning, the officers

informed Dent of his Pirtle rights. The officers advised Dent that he had the

right to require a warrant before consenting to the search; that he had the right

to refuse to consent; that he had the right to consult with an attorney prior to

consenting; and that he had the right to have an attorney appointed at no cost if

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 10 of 13 he could not afford one. Dent later testified at the suppression hearing that he

did, in fact, voluntarily signed the form. Now, Dent invites us to give the

original language of the Pirtle warning special powers. We are reluctant to do

that because it would require us to elevate form over substance. See, e.g., French

v. State, 754 N.E.2d 9, 15 (Ind. Ct. App. 2001) (where the purpose of a rule is

satisfied, this court will not elevate form over substance). We find that, in line

with the Jones decision, the language of the Pirtle warning contained in the

police form voluntarily signed by Dent was sufficient to inform Dent that he

had the right to consult with counsel before consenting to the search of his

residence.

[23] Dent finally contends that he was coerced into signing the consent form because

the officers told him that they would get a search warrant if he refused to

consent to the search. In Daniel v. State, 582 N.E.2d 364 (Ind. 1991), cert.

denied, our supreme court ruled that it was not improper for an officer to inform

a defendant that a warrant will be sought if consent is not given. Id. at 369.

In State v. Barker, 734 N.E.2d 671 (Ind. Ct. App. 2000), we also recognized that

there is a difference between an officer telling a defendant that a warrant will be

“obtained as opposed to merely sought.” Id. at 674.

[24] In Barker, the officers were investigating an anonymous tip that sixty-one year-

old Barker was growing marijuana in her home. Id. at 672. The officers went

to Barker’s residence, asked Barker if they could enter the house, and told her

they could get a search warrant if she refused them entrance. Id. Barker

cooperated and told the officers she had nothing to hide and that they could Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 11 of 13 come in and look around. Id. The officers went inside and found ten

marijuana plants, potting soil, and lights in the basement. Id. After the search

and seizure, the officers presented Barker a “Permit to Search” form that Barker

signed. Id. Because of Barker’s age and relative inexperience with law

enforcement, we held that she was coerced into signing the form under the

circumstances. Id. at 674.

[25] Here, unlike the defendant in Barker, Dent was not inexperienced in his

dealings with law enforcement. He knew his rights and clearly revoked his

consent to search at least once. The record does not show that the officers used

the threat of a search warrant to make Dent sign the consent form at any point.

After revoking his initial consent, Dent was placed in Officer Popp’s vehicle

and then raised the issue again himself. Dent was hoping to get some leniency

for his cooperation and his consent to search. Officer Popp was very careful in

his conversation with Dent; he made it clear that the officers would not make

any promises and would not coerce him into signing anything. Also, unlike

Barker, where the reason for the search was an informant tip, here, the reason

for the search was more substantial—the video recording of the controlled buy

of heroin from Dent on January 8, 2015. The officers’ statement and ability to

get a search warrant were not illusory here. As such, we find that Dent’s

consent to the search of his residence was voluntary.

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 12 of 13 CONCLUSION

[26] Based on the foregoing, we hold that the trial court did not abuse its discretion

in admitting the evidence found in Dent’s residence because Dent voluntarily

consented to the search.

[27] Affirmed.

[28] Najam, J. and May, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016 Page 13 of 13