MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 30 2017, 10:07 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Desmond Hayes, May 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1391 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff. Rothenberg, Judge Trial Court Cause No. 49G02-1504-F2-11881
Mathias, Judge.
[1] Desmond Hayes (“Hayes”) was convicted after a jury trial in Marion Superior
Court of Level 2 felony burglary, Level 3 felony robbery, and two counts of
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 1 of 7 Level 3 felony criminal confinement. Hayes was sentenced to a seventeen-year
term on the burglary conviction, partly executed and partly suspended, and to
concurrent four-year terms on the remaining counts. Hayes now appeals,
claiming the trial court abused its discretion by admitting the fruits of a search
warrant issued for one of Hayes’s social media accounts.
[2] We affirm.
Facts and Procedural Posture
[3] On the evening of April 3, 2015, Marcellus Adams (“Adams”) and Shawn Lee
(“Lee”), two young men and lifelong friends, were passing the time together in
Adams’s apartment on the northwest side of Indianapolis, Indiana. While
browsing a social media website, Adams saw one of his connections offering a
.40 caliber Smith and Wesson handgun for sale under the username “Brasi
LilAntfamila.” The user, another young man, was not personally known to
Adams, but Adams knew of him by the nickname “Lil Bob.” Through private
messages exchanged over the website, Adams negotiated the purchase of the
gun for $130 and an eighth of an ounce of marijuana. On Lee’s behalf, Adams
also negotiated the sale of Lee’s old cell phone. Adams and Lee awaited “Brasi
LilAntfamila” in the apartment.
[4] Around 11:00 p.m., “Brasi LilAntfamila” arrived in the company of another,
and both were directed up to the apartment by Adams. As Adams went to open
the front door to let them in, the visitors pushed through the door and burst into
the apartment. “Brasi LilAntfamila” produced the Smith and Wesson Adams
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 2 of 7 had planned to buy and pointed it at Adams and Lee; his associate did the same
with what appeared to be a large, long-barreled revolver. Adams and Lee were
ordered to the ground; Adams was ordered to strip to his underwear; and the
two intruders proceeded to rob the apartment of a large television, clothes, hats,
cash, marijuana, and Adams’s and Lee’s cell phones.
[5] “Brasi LilAntfamila” proposed killing Adams and Lee, but his associate refused
and left the apartment. “Brasi LilAntfamila” then marched Adams and Lee at
gunpoint out of the apartment and down the building’s stairs. At an opportune
moment, Adams bolted and fled into the night. Lee, resigned, prepared to meet
his fate in the parking lot before the robbers’ waiting car. “Brasi LilAntfamila”
turned Lee around, struck him in the back of the head several times with the
butt of his gun, and fled in the car.
[6] Around this time, an officer of the Indianapolis Metropolitan Police
Department (“IMPD”) was nearby investigating a report of a suspicious person
prowling about the back yard of a home. The officer saw Lee in the parking lot
where the robbers had left him; Lee relayed the substance of the night’s events
to the officer. More IMPD officers and a robbery detective, Rodney Bradburn
(“Bradburn”), were dispatched to the scene and arrived shortly after. Adams
soon returned to the apartment as well. Adams, now without his cell phone,
borrowed one of the officers’ and showed Bradburn the social media account of
“Brasi LilAntfamila.” The profile picture associated with the account matched
the appearance of the man who had just robbed the apartment.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 3 of 7 [7] Around 2:00 a.m. the following morning, April 4, 2015, on the west side of
Indianapolis, an IMPD patrol officer pulled over a sedan for having license
plates registered to an SUV. In the front passenger’s seat sat Hayes. As the
officer approached the driver’s window, he saw a glass jar full of marijuana in
the center console between the two front seats. The officer ordered Hayes, the
driver, and a second passenger out of the car, and the butt of what appeared to
be a large, long-barreled revolver — but was actually a revolver-style BB gun —
protruded from between the center console and the now-vacant driver’s seat.
The officer radioed for help; a second officer arrived quickly. The second officer
searched the car while the first minded its occupants. A search of the glove
compartment produced a second jar of marijuana and a .40 caliber Smith and
Wesson handgun. Hayes admitted the marijuana was his but denied owning the
handgun. Hayes was arrested. A search incident to that arrest produced one .40
caliber round from his pants pocket.
[8] Bradburn, meanwhile, began investigating “Brasi LilAntfamila.” The user’s
social media account listed a birthday. Bradbury was able to match the birthday
and the account’s profile picture to a suspect who shared the same birthday and
the same appearance: Hayes. On April 4 and 6, 2015, Bradburn presented first
Adams and then Lee with a six-person photo array, showing a previously taken
picture of Hayes together with five others. Both Adams and Lee identified
Hayes as “Brasi LilAntfamila” and the robber. Bradburn then sought and
obtained a search warrant directed at the social media website for Hayes’s
account. The fruits of that search included Hayes’s original post advertising the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 4 of 7 handgun for sale; a log of the messages sent by Adams and Hayes as they
negotiated the sale of the handgun and Lee’s cell phone; and a picture taken
and uploaded around 11:45 p.m., April 3, 2015, showing a wad of cash, a
handgun, two cell phones, and a glass jar of marijuana with the caption, “I got
six jobs IDGT.”1 Ex. Vol., State’s Ex. 17.
[9] On April 6, 2015, the State charged Hayes by information filed in Marion
Superior Court with one count of Level 2 felony burglary, two counts of Level 3
felony robbery, and two counts of Level 3 felony criminal confinement. On
May 16, 2016, Hayes moved to suppress the fruits of the search warrant. The
court denied the motion after hearing brief argument. Hayes was tried before a
Marion County jury over two days, from May 16, 2016, to May 17, 2016.
Fruits of the warrant were admitted without objection. The jury found Hayes
guilty as charged on all counts.
[10] On June 1, 2016, the court merged the two robbery counts and entered
judgment against Hayes for burglary, robbery, and two counts of criminal
confinement.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 30 2017, 10:07 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Desmond Hayes, May 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1391 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff. Rothenberg, Judge Trial Court Cause No. 49G02-1504-F2-11881
Mathias, Judge.
[1] Desmond Hayes (“Hayes”) was convicted after a jury trial in Marion Superior
Court of Level 2 felony burglary, Level 3 felony robbery, and two counts of
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 1 of 7 Level 3 felony criminal confinement. Hayes was sentenced to a seventeen-year
term on the burglary conviction, partly executed and partly suspended, and to
concurrent four-year terms on the remaining counts. Hayes now appeals,
claiming the trial court abused its discretion by admitting the fruits of a search
warrant issued for one of Hayes’s social media accounts.
[2] We affirm.
Facts and Procedural Posture
[3] On the evening of April 3, 2015, Marcellus Adams (“Adams”) and Shawn Lee
(“Lee”), two young men and lifelong friends, were passing the time together in
Adams’s apartment on the northwest side of Indianapolis, Indiana. While
browsing a social media website, Adams saw one of his connections offering a
.40 caliber Smith and Wesson handgun for sale under the username “Brasi
LilAntfamila.” The user, another young man, was not personally known to
Adams, but Adams knew of him by the nickname “Lil Bob.” Through private
messages exchanged over the website, Adams negotiated the purchase of the
gun for $130 and an eighth of an ounce of marijuana. On Lee’s behalf, Adams
also negotiated the sale of Lee’s old cell phone. Adams and Lee awaited “Brasi
LilAntfamila” in the apartment.
[4] Around 11:00 p.m., “Brasi LilAntfamila” arrived in the company of another,
and both were directed up to the apartment by Adams. As Adams went to open
the front door to let them in, the visitors pushed through the door and burst into
the apartment. “Brasi LilAntfamila” produced the Smith and Wesson Adams
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 2 of 7 had planned to buy and pointed it at Adams and Lee; his associate did the same
with what appeared to be a large, long-barreled revolver. Adams and Lee were
ordered to the ground; Adams was ordered to strip to his underwear; and the
two intruders proceeded to rob the apartment of a large television, clothes, hats,
cash, marijuana, and Adams’s and Lee’s cell phones.
[5] “Brasi LilAntfamila” proposed killing Adams and Lee, but his associate refused
and left the apartment. “Brasi LilAntfamila” then marched Adams and Lee at
gunpoint out of the apartment and down the building’s stairs. At an opportune
moment, Adams bolted and fled into the night. Lee, resigned, prepared to meet
his fate in the parking lot before the robbers’ waiting car. “Brasi LilAntfamila”
turned Lee around, struck him in the back of the head several times with the
butt of his gun, and fled in the car.
[6] Around this time, an officer of the Indianapolis Metropolitan Police
Department (“IMPD”) was nearby investigating a report of a suspicious person
prowling about the back yard of a home. The officer saw Lee in the parking lot
where the robbers had left him; Lee relayed the substance of the night’s events
to the officer. More IMPD officers and a robbery detective, Rodney Bradburn
(“Bradburn”), were dispatched to the scene and arrived shortly after. Adams
soon returned to the apartment as well. Adams, now without his cell phone,
borrowed one of the officers’ and showed Bradburn the social media account of
“Brasi LilAntfamila.” The profile picture associated with the account matched
the appearance of the man who had just robbed the apartment.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 3 of 7 [7] Around 2:00 a.m. the following morning, April 4, 2015, on the west side of
Indianapolis, an IMPD patrol officer pulled over a sedan for having license
plates registered to an SUV. In the front passenger’s seat sat Hayes. As the
officer approached the driver’s window, he saw a glass jar full of marijuana in
the center console between the two front seats. The officer ordered Hayes, the
driver, and a second passenger out of the car, and the butt of what appeared to
be a large, long-barreled revolver — but was actually a revolver-style BB gun —
protruded from between the center console and the now-vacant driver’s seat.
The officer radioed for help; a second officer arrived quickly. The second officer
searched the car while the first minded its occupants. A search of the glove
compartment produced a second jar of marijuana and a .40 caliber Smith and
Wesson handgun. Hayes admitted the marijuana was his but denied owning the
handgun. Hayes was arrested. A search incident to that arrest produced one .40
caliber round from his pants pocket.
[8] Bradburn, meanwhile, began investigating “Brasi LilAntfamila.” The user’s
social media account listed a birthday. Bradbury was able to match the birthday
and the account’s profile picture to a suspect who shared the same birthday and
the same appearance: Hayes. On April 4 and 6, 2015, Bradburn presented first
Adams and then Lee with a six-person photo array, showing a previously taken
picture of Hayes together with five others. Both Adams and Lee identified
Hayes as “Brasi LilAntfamila” and the robber. Bradburn then sought and
obtained a search warrant directed at the social media website for Hayes’s
account. The fruits of that search included Hayes’s original post advertising the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 4 of 7 handgun for sale; a log of the messages sent by Adams and Hayes as they
negotiated the sale of the handgun and Lee’s cell phone; and a picture taken
and uploaded around 11:45 p.m., April 3, 2015, showing a wad of cash, a
handgun, two cell phones, and a glass jar of marijuana with the caption, “I got
six jobs IDGT.”1 Ex. Vol., State’s Ex. 17.
[9] On April 6, 2015, the State charged Hayes by information filed in Marion
Superior Court with one count of Level 2 felony burglary, two counts of Level 3
felony robbery, and two counts of Level 3 felony criminal confinement. On
May 16, 2016, Hayes moved to suppress the fruits of the search warrant. The
court denied the motion after hearing brief argument. Hayes was tried before a
Marion County jury over two days, from May 16, 2016, to May 17, 2016.
Fruits of the warrant were admitted without objection. The jury found Hayes
guilty as charged on all counts.
[10] On June 1, 2016, the court merged the two robbery counts and entered
judgment against Hayes for burglary, robbery, and two counts of criminal
confinement. Hayes was sentenced to a seventeen-year term for burglary: seven
years executed in the Department of Correction, four years executed in Marion
County Community Corrections, and six years suspended with one year on
1 A witness for the State testified that “IDGT” stood for “I don’t got time.” Tr. p. 258. In the context of Hayes’s social media username, it more likely stood for “I don’t get tired.” See Kevin Gates, I Don’t Get Tired, on Luca Brasi 2 (Atlantic Records 2014) (“I got six jobs, I don’t get tired.”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 5 of 7 probation. On each of the three remaining counts, the court imposed four-year
terms concurrent to the first.
[11] Hayes now appeals, claiming the trial court abused its discretion by denying his
motion to suppress the fruits of the search warrant because the warrant was
unsupported by probable cause.
Discussion and Decision
[12] Our review of denials of motions to suppress, when following a trial at which
the challenged evidence was admitted, is properly a review of the trial court’s
decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014). This decision is not subject to review for abuse of discretion unless
contemporaneous objection was made at trial, irrespective of any pretrial
motion to suppress. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). Hayes
did not object at trial to the admission of any of the warrant’s fruits. Hayes’s
claim on appeal was therefore waived unless he alleges fundamental error. Trice
v. State, 766 N.E.2d 1180, 1182 (Ind. 2002).
[13] Our supreme court has held that “a claim [for error in admitting
unconstitutionally obtained evidence at trial], without more, does not assert
fundamental error.” Brown v. State, 929 N.E.2d 204, 205 (Ind. 2010). Errors are
fundamental only where they “make a fair trial impossible or constitute clearly
blatant violations of basic and elementary principles of due process.” Id. at 207
(internal citation and quotation omitted). With respect to Fourth Amendment
protections, erroneous denial of these protections is fundamental only when
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 6 of 7 coupled with a “claim of fabrication of evidence,” “willful malfeasance,” or a
“contention that the evidence is not what it appears to be.” Id.
[14] Hayes does not allege fabrication, willful malfeasance, or “that the evidence
[was] not what it appear[ed] to be.” Id. Hayes therefore cannot allege
fundamental error under Brown. Having waived review for abuse of discretion,
and unable to assert fundamental Fourth Amendment error, Hayes’s claim on
appeal fails at the threshold. Even had Hayes crossed it, he would have faced
the heavy burdens of showing a protectable privacy interest in his social media
activity, see United States v. Jones, 565 U.S. 400, 417-18 (2012) (Sotomayor, J.,
concurring) (discussing vitality of third-party doctrine in “the digital age”),
overcoming the “great deference” we owe a magistrate’s probable cause
determinations, Illinois v. Gates, 462 U.S. 213, 236 (1983), and avoiding the
application of United States v. Leon, 468 U.S. 897, 920 (1984) (good-faith
exception to exclusionary rule).
Conclusion
[15] Hayes waived abuse-of-discretion review of the trial court’s evidentiary ruling
by failing contemporaneously to object, and cannot allege fundamental error.
The judgment of the trial court is therefore affirmed.
[16] Affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017 Page 7 of 7