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 May 21 2013, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
FRANCIS NAPIER, ) ) Appellant-Defendant, ) ) vs. ) No. 15A04-1209-CR-460 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathan N. Cleary, Judge Cause No. 15D01-1112-FD-614
May 21, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Francis Napier (Napier), appeals the trial court’s denial of
his motion to suppress.
We affirm.
ISSUE
Napier raises three issues for our review, one of which we find dispositive and
restate as follows: Whether the trial court abused its discretion when it denied his motion
to suppress evidence.
FACTS AND PROCEDURAL HISTORY
On December 11, 2011, Napier and Nichelle Hartman (Hartman) drove in
Napier’s truck to the Hollywood Casino in Lawrenceburg, Indiana. They rented a hotel
room together with Hartman co-signing for the room and receiving a key. While at the
casino, Napier attacked a man who had been talking to Hartman, knocking him down and
pulling off his shirt. Indiana Gaming Commission Officers Terry Nickel (Officer Nickel)
and Jeff Davies (Officer Davies) were summoned to the casino floor in response. When
the Officers found Napier, casino security had restrained him and he was speaking to a
crying Hartman. Officer Nickel handcuffed Napier and left to review surveillance video
of the incident. Hartman told Officer Davies that she was Napier’s girlfriend and that he
had been smoking marijuana, more of which could be found in Napier’s truck. Officer
Davies relayed this to Officer Nickel who later was also told by Hartman about the
2 marijuana. Napier was eventually taken to jail after being arrested for public intoxication
and disorderly conduct.
Hartman told the Officers that she wanted to leave but had driven with Napier in
the truck, which had been left with valet parking. Officer Nickel confirmed that Napier
had registered for a hotel room and Hartman co-signed for a key to the room. Hartman
told the officers that her cell phone was dead and that she needed to retrieve a charger
from the truck along with her personal items. Hartman did not have the valet parking
ticket nor knew where the truck was parked. Officer Nickel took Hartman to the valet
and ordered the valet to bring Napier’s truck around to the front of the casino where a
surveillance camera was located.
Hartman entered the truck and began looking for the charger as well as her clothes
and other personal effects. The passenger door was left ajar and Officer Nickel stood
outside, between the door and the frame, using his flashlight to illuminate the truck’s
interior. As Hartman rummaged around the truck she came to the center console
compartment which was closed. After electing not to open it at first, she later opened the
compartment exposing hemostats, rolling papers, and a bag of plant material later
determined to be marijuana. Although Officer Nickels stuck his head in the truck, at no
time did he rummage around the interior, open compartments, or move things around.
Hartman eventually retrieved her boots, clothes, and makeup from the truck but could not
locate the charger. Officer Nickels told Hartman that he saw the marijuana to which
Hartman replied, “and the steroids” and described a pill bottle containing blue tablets.
3 (Transcript p. 18). Hartman was escorted back to the casino lobby where a security
officer lent her a phone.
Thereafter, Officer Nickels called the prosecutor to obtain a search warrant based
on his observation of marijuana inside the truck. Hartman overheard the conversation
and stated that the drugs were hers. After obtaining the search warrant, Officers found
and seized a pair of hemostats, a pill bottle containing white and blue tablets that were
later identified as hydrocodone and alprazolam, a package of rolling papers, a glass bottle
containing a blue fluid later identified as anabolic steroids, a bag of marijuana, a pill
bottle containing plant residue, and burnt marijuana cigarettes.
On May 16, 2012, the State filed an Information charging Napier with Count I,
possession of a schedule III controlled substance, a Class D felony, Ind. Code § 35-48-4-
7(a); Count II, possession of a schedule III controlled substance, a Class D felony, I.C. §
35-48-4-7(a); Count III, possession of a schedule IV controlled substance, a Class D
felony, I.C. § 35-48-4-7(a); Count IV, possession of marijuana, a Class A misdemeanor,
I.C. § 35-48-4-11(1); Count V, disorderly conduct, a Class B misdemeanor, I.C. § 35-45-
1-3; and Count VI, public intoxication, I.C. § 7.1-5-1-3.
On November 16, 2009, Napier filed a motion to suppress the evidence, alleging
violations of both the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. On July 31, 2012, a hearing was held. On August
7, 2012, the trial court issued its Order denying Napier’s motion to suppress. On August
20, 2012, the trial court certified its Order for interlocutory appeal, which we accepted.
4 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Napier argues that the trial court abused its discretion by denying his motion to
suppress. He asserts that Officer Nickel’s initial search of his truck violated his rights
under the Fourth Amendment of the United States Constitution and Article 1, Section 11
of the Indiana Constitution.
We review a denial of a motion to suppress similar to other sufficiency matters.
Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.
We do not reweigh the evidence, but consider conflicting evidence in the light most
favorable to the trial court's ruling. Id. Uncontested evidence, however, is viewed in
favor of the defendant. Id.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures; its protections extend to the States through the
Fourteenth Amendment. Id. “[A] search arises out of an intrusion by a governmental
actor upon an area in which a person maintains a reasonable expectation of privacy.”
Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (internal quotation omitted). 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 recognizes as reasonable. Krise v. State, 746 N.E.2d 957, 969 (Ind. 2001).
Without a reasonable expectation of privacy there is no interest that is protected by the
Fourth Amendment. Woodson v.
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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 May 21 2013, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
FRANCIS NAPIER, ) ) Appellant-Defendant, ) ) vs. ) No. 15A04-1209-CR-460 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathan N. Cleary, Judge Cause No. 15D01-1112-FD-614
May 21, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Francis Napier (Napier), appeals the trial court’s denial of
his motion to suppress.
We affirm.
ISSUE
Napier raises three issues for our review, one of which we find dispositive and
restate as follows: Whether the trial court abused its discretion when it denied his motion
to suppress evidence.
FACTS AND PROCEDURAL HISTORY
On December 11, 2011, Napier and Nichelle Hartman (Hartman) drove in
Napier’s truck to the Hollywood Casino in Lawrenceburg, Indiana. They rented a hotel
room together with Hartman co-signing for the room and receiving a key. While at the
casino, Napier attacked a man who had been talking to Hartman, knocking him down and
pulling off his shirt. Indiana Gaming Commission Officers Terry Nickel (Officer Nickel)
and Jeff Davies (Officer Davies) were summoned to the casino floor in response. When
the Officers found Napier, casino security had restrained him and he was speaking to a
crying Hartman. Officer Nickel handcuffed Napier and left to review surveillance video
of the incident. Hartman told Officer Davies that she was Napier’s girlfriend and that he
had been smoking marijuana, more of which could be found in Napier’s truck. Officer
Davies relayed this to Officer Nickel who later was also told by Hartman about the
2 marijuana. Napier was eventually taken to jail after being arrested for public intoxication
and disorderly conduct.
Hartman told the Officers that she wanted to leave but had driven with Napier in
the truck, which had been left with valet parking. Officer Nickel confirmed that Napier
had registered for a hotel room and Hartman co-signed for a key to the room. Hartman
told the officers that her cell phone was dead and that she needed to retrieve a charger
from the truck along with her personal items. Hartman did not have the valet parking
ticket nor knew where the truck was parked. Officer Nickel took Hartman to the valet
and ordered the valet to bring Napier’s truck around to the front of the casino where a
surveillance camera was located.
Hartman entered the truck and began looking for the charger as well as her clothes
and other personal effects. The passenger door was left ajar and Officer Nickel stood
outside, between the door and the frame, using his flashlight to illuminate the truck’s
interior. As Hartman rummaged around the truck she came to the center console
compartment which was closed. After electing not to open it at first, she later opened the
compartment exposing hemostats, rolling papers, and a bag of plant material later
determined to be marijuana. Although Officer Nickels stuck his head in the truck, at no
time did he rummage around the interior, open compartments, or move things around.
Hartman eventually retrieved her boots, clothes, and makeup from the truck but could not
locate the charger. Officer Nickels told Hartman that he saw the marijuana to which
Hartman replied, “and the steroids” and described a pill bottle containing blue tablets.
3 (Transcript p. 18). Hartman was escorted back to the casino lobby where a security
officer lent her a phone.
Thereafter, Officer Nickels called the prosecutor to obtain a search warrant based
on his observation of marijuana inside the truck. Hartman overheard the conversation
and stated that the drugs were hers. After obtaining the search warrant, Officers found
and seized a pair of hemostats, a pill bottle containing white and blue tablets that were
later identified as hydrocodone and alprazolam, a package of rolling papers, a glass bottle
containing a blue fluid later identified as anabolic steroids, a bag of marijuana, a pill
bottle containing plant residue, and burnt marijuana cigarettes.
On May 16, 2012, the State filed an Information charging Napier with Count I,
possession of a schedule III controlled substance, a Class D felony, Ind. Code § 35-48-4-
7(a); Count II, possession of a schedule III controlled substance, a Class D felony, I.C. §
35-48-4-7(a); Count III, possession of a schedule IV controlled substance, a Class D
felony, I.C. § 35-48-4-7(a); Count IV, possession of marijuana, a Class A misdemeanor,
I.C. § 35-48-4-11(1); Count V, disorderly conduct, a Class B misdemeanor, I.C. § 35-45-
1-3; and Count VI, public intoxication, I.C. § 7.1-5-1-3.
On November 16, 2009, Napier filed a motion to suppress the evidence, alleging
violations of both the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. On July 31, 2012, a hearing was held. On August
7, 2012, the trial court issued its Order denying Napier’s motion to suppress. On August
20, 2012, the trial court certified its Order for interlocutory appeal, which we accepted.
4 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Napier argues that the trial court abused its discretion by denying his motion to
suppress. He asserts that Officer Nickel’s initial search of his truck violated his rights
under the Fourth Amendment of the United States Constitution and Article 1, Section 11
of the Indiana Constitution.
We review a denial of a motion to suppress similar to other sufficiency matters.
Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.
We do not reweigh the evidence, but consider conflicting evidence in the light most
favorable to the trial court's ruling. Id. Uncontested evidence, however, is viewed in
favor of the defendant. Id.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures; its protections extend to the States through the
Fourteenth Amendment. Id. “[A] search arises out of an intrusion by a governmental
actor upon an area in which a person maintains a reasonable expectation of privacy.”
Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (internal quotation omitted). 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 recognizes as reasonable. Krise v. State, 746 N.E.2d 957, 969 (Ind. 2001).
Without a reasonable expectation of privacy there is no interest that is protected by the
Fourth Amendment. Woodson v. State, 966 N.E.2d 780, 788 (Ind. Ct. App. 2012).
5 Napier argues that he had a reasonable expectation of privacy based on his
delivery of his truck to the parking valet. Specifically, he contends that entrusting his
truck to the valet created a bailment agreement, which Napier contends gave rise to an
actual subjective expectation of privacy that society would deem reasonable. In contrast,
the State argues that Napier’s entrustment of the truck to the valet is irrelevant for Fourth
Amendment purposes since the police could have accompanied Hartman to the vehicle
where parked and further that assuming a bailment existed, Napier has not shown that the
valet released control of the truck to the police.
Under these facts we decline to find that Napier had a reasonable expectation of
privacy. Assuming that Napier’s delivery of his truck to the valet created a bailment,
such relationship is characterized by the bailee’s exclusive possession. See Kottolowski
v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 82 (Ind. Ct. App. 1996), trans. denied.
Delivery entails a transfer “of the property to the bailee as to exclude the possession of
the owner and all other persons and give to the bailee, for the time being, the sole custody
and control of the property.” Id. Simply put, by leaving his truck in the possession and
control of the valet, Napier assumed the risk that the valet would allow access to the
truck.
Napier next argues that Officer Nickel conducted a warrantless search of his truck
when assisting Hartman with retrieving her personal effects. A search involves an
exploratory investigation, prying into hidden places, or a looking for or seeking out.
Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011). That which is in plain view is not the
6 product of a search. Avant v. State, 528 N.E.2d 74, 76 (Ind. 1988). The use of a
flashlight does not does not transform an officer’s observations into a search. Boggs v.
State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.
Here, Hartman entered the vehicle to retrieve her personal items. Officer Nickel
used his flashlight to illuminate the truck’s interior. There is no evidence that Officer
Nickel directed Hartman to move things around or open compartments inside the vehicle.
Although Officer Nickel admittedly stuck his head inside the door frame, the evidence
shows that this action was taken to assist Hartman with finding her personal effects. See
Lewis, 949 N.E.2d at 1246. Additionally, Hartman exposed the contraband contained in
the center console on her own. Therefore, because Officer Nickel restricted his activities,
his eventual observation of the hemostats, rolling papers, and marijuana in plain view
inside the truck’s center console was not an illegal search and did not violate the Fourth
Amendment. As a result, we conclude that the trial court did not err in denying Napier’s
motion to suppress.1
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by denying Napier’s motion to suppress evidence.
Affirmed.
1 Because we conclude that Officer Nickel’s actions did not constitute a search under the Fourth Amendment, we do not reach Napier’s argument that the search was unjustified under the automobile exception to the warrant requirement. Furthermore, although Napier asserts a claim under Article 1, Section 11 of the Indiana Constitution, he recognizes that no argument was made to the trial court. Consequently, we do not address it here.
7 BRADFORD, J. and BROWN, J. concur