MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 24 2016, 8:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary A. Williams, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1510-CR-1847 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1505-F4-28
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 1 of 7 [1] Following a jury trial, Gary A. Williams was convicted of Level 4 felony
unlawful possession of a firearm by a serious violent felon, Class A
misdemeanor possession of a controlled substance, and Class B misdemeanor
possession of marijuana. He was also adjudicated a habitual offender. The
convictions were based on evidence discovered after Williams consented to a
search of his pocket. Williams claims that the search extended beyond the
scope of his consent and, therefore, the evidence found during and after the
search should have been excluded from evidence.
[2] We affirm.
Facts & Procedural History
[3] On the afternoon of April 29, 2015, Fort Wayne Police Officer George Nicklow
was in a parking lot surveilling the apartment of a known gang member.
Officer Nicklow was in uniform but driving an unmarked vehicle. He observed
an SUV drive slowly toward him and pull into the parking spot on the officer’s
passenger side. Williams, the later-identified driver of the SUV, made eye
contact with Officer Nicklow and then backed into a parking spot behind
Officer Nicklow. Williams stayed in his vehicle and watched the officer. After
about five minutes, Officer Nicklow became concerned and radioed Officer
Robert Hollo, who was in the area. Shortly thereafter, Williams left the parking
lot and drove to a nearby gas station.
[4] Officer Hollo watched Williams from a distance. Williams “put the gas nozzle
in his tank” for only about two minutes and then left, “like he didn’t even pay”.
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 2 of 7 Trial Transcript at 142, 143. Officer Hollo informed Officer Nicklow that
Williams appeared to be returning to the apartment complex, so Officer
Nicklow returned to the complex.
[5] Upon arriving, Officer Nicklow observed Williams’s SUV parked in front of a
different apartment building. Williams was not inside the SUV, but the engine
was running. Williams came out of the apartment after a couple minutes and
entered the SUV, backed out, and then parked behind Officer Nicklow in about
the same area he had before. In light of this suspicious activity, Officer
Nicklow asked Officer Hollo to return to the area. Officer Hollo quickly
returned and parked nearby.
[6] As the uniformed officers exited their vehicles to approach the SUV, Williams
stepped out with a diaper bag on his shoulder. Williams spoke first, saying
“what’s up[?]” Id. at 147. Officer Hollo responded, “how’s it going[?]” Id.
Officer Hollo noticed a “big bulge” in Williams’s front right pocket. Id. When
he asked Williams what was in the pocket, Williams did not respond. Officer
Hollo then asked if he “could see what was inside his pocket.” Id. at 148.
Williams said, “go ahead.” Id. Officer Hollo reached into the pocket and
pulled out a translucent pill bottle, which contained what the officer recognized
to be marijuana.
[7] Officer Hollo removed the diaper bag from Williams’s shoulder and placed him
under arrest for possession of marijuana. A subsequent search incident to arrest
led to the discovery of a larger bag of marijuana, a hydrocodone pill, and
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 3 of 7 several plastic baggies. There was also a loaded gun inside the diaper bag that
Williams had been carrying, as well as a baby inside the SUV.
[8] On May 5, 2015, the State charged Williams with Level 4 felony unlawful
possession of a firearm by a serious violent felon, Class A misdemeanor
possession of a controlled substance, and Class B misdemeanor possession of
marijuana. The State later filed a habitual offender allegation.
[9] On July 30, 2015, Williams filed a motion to suppress. At the conclusion of the
hearing on August 20, 2015, the trial court denied Williams’s motion to
suppress. The court expressly found that a consensual encounter occurred
between Williams and the officers during which Williams consented to the
search of his pocket.
[10] Williams’s two-day jury trial commenced on August 26, 2015. Williams
renewed his suppression argument at trial with objections to the challenged
evidence, but the trial court admitted the evidence. The jury found Williams
guilty as charged and found him to be a habitual offender. The trial court
sentenced him, on September 28, 2015, to an aggregate term of twenty-seven
years in prison. Williams now appeals on grounds that the search violated the
Fourth Amendment to the United States Constitution and Article 1, Section 11
of the Indiana Constitution.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 4 of 7 [11] Williams improperly frames the issue on appeal in terms of whether the trial
court erred in denying the motion to suppress. The issue, rather, is whether the
trial court abused its discretion by admitting the challenged evidence at trial.
See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). On review for abuse of
discretion, we will reverse “only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.” Id. at 260.
[12] On appeal, Williams effectively concedes that his encounter with Officers Hollo
and Nicklow was consensual.1 Indeed, he was not in custody or detained in
any way at the time he gave Officer Hollo permission to search his pocket.
Williams’s argument is simply that Officer Hollo’s search exceeded the scope of
the consent given. According to Williams, his consent was limited to a search
of his pocket to see if it contained a weapon. Once Officer Hollo determined
that there was no weapon, Williams contends that the officer should have
ended the search without removing the pill bottle.
[13] Williams’s argument is well off the mark. As our Supreme Court has
recognized, many search and seizure issues are resolved in the same manner
under both the Indiana and Federal Constitutions. See State v. Cunningham, 26
N.E.3d 21, 25 (Ind. 2015). This case falls within that category. See id. Under
both Constitutions, a search requires a warrant unless certain narrow exceptions
1 “Consensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth Amendment analysis.” Id. at 261.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 24 2016, 8:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary A. Williams, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1510-CR-1847 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1505-F4-28
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 1 of 7 [1] Following a jury trial, Gary A. Williams was convicted of Level 4 felony
unlawful possession of a firearm by a serious violent felon, Class A
misdemeanor possession of a controlled substance, and Class B misdemeanor
possession of marijuana. He was also adjudicated a habitual offender. The
convictions were based on evidence discovered after Williams consented to a
search of his pocket. Williams claims that the search extended beyond the
scope of his consent and, therefore, the evidence found during and after the
search should have been excluded from evidence.
[2] We affirm.
Facts & Procedural History
[3] On the afternoon of April 29, 2015, Fort Wayne Police Officer George Nicklow
was in a parking lot surveilling the apartment of a known gang member.
Officer Nicklow was in uniform but driving an unmarked vehicle. He observed
an SUV drive slowly toward him and pull into the parking spot on the officer’s
passenger side. Williams, the later-identified driver of the SUV, made eye
contact with Officer Nicklow and then backed into a parking spot behind
Officer Nicklow. Williams stayed in his vehicle and watched the officer. After
about five minutes, Officer Nicklow became concerned and radioed Officer
Robert Hollo, who was in the area. Shortly thereafter, Williams left the parking
lot and drove to a nearby gas station.
[4] Officer Hollo watched Williams from a distance. Williams “put the gas nozzle
in his tank” for only about two minutes and then left, “like he didn’t even pay”.
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 2 of 7 Trial Transcript at 142, 143. Officer Hollo informed Officer Nicklow that
Williams appeared to be returning to the apartment complex, so Officer
Nicklow returned to the complex.
[5] Upon arriving, Officer Nicklow observed Williams’s SUV parked in front of a
different apartment building. Williams was not inside the SUV, but the engine
was running. Williams came out of the apartment after a couple minutes and
entered the SUV, backed out, and then parked behind Officer Nicklow in about
the same area he had before. In light of this suspicious activity, Officer
Nicklow asked Officer Hollo to return to the area. Officer Hollo quickly
returned and parked nearby.
[6] As the uniformed officers exited their vehicles to approach the SUV, Williams
stepped out with a diaper bag on his shoulder. Williams spoke first, saying
“what’s up[?]” Id. at 147. Officer Hollo responded, “how’s it going[?]” Id.
Officer Hollo noticed a “big bulge” in Williams’s front right pocket. Id. When
he asked Williams what was in the pocket, Williams did not respond. Officer
Hollo then asked if he “could see what was inside his pocket.” Id. at 148.
Williams said, “go ahead.” Id. Officer Hollo reached into the pocket and
pulled out a translucent pill bottle, which contained what the officer recognized
to be marijuana.
[7] Officer Hollo removed the diaper bag from Williams’s shoulder and placed him
under arrest for possession of marijuana. A subsequent search incident to arrest
led to the discovery of a larger bag of marijuana, a hydrocodone pill, and
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 3 of 7 several plastic baggies. There was also a loaded gun inside the diaper bag that
Williams had been carrying, as well as a baby inside the SUV.
[8] On May 5, 2015, the State charged Williams with Level 4 felony unlawful
possession of a firearm by a serious violent felon, Class A misdemeanor
possession of a controlled substance, and Class B misdemeanor possession of
marijuana. The State later filed a habitual offender allegation.
[9] On July 30, 2015, Williams filed a motion to suppress. At the conclusion of the
hearing on August 20, 2015, the trial court denied Williams’s motion to
suppress. The court expressly found that a consensual encounter occurred
between Williams and the officers during which Williams consented to the
search of his pocket.
[10] Williams’s two-day jury trial commenced on August 26, 2015. Williams
renewed his suppression argument at trial with objections to the challenged
evidence, but the trial court admitted the evidence. The jury found Williams
guilty as charged and found him to be a habitual offender. The trial court
sentenced him, on September 28, 2015, to an aggregate term of twenty-seven
years in prison. Williams now appeals on grounds that the search violated the
Fourth Amendment to the United States Constitution and Article 1, Section 11
of the Indiana Constitution.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 4 of 7 [11] Williams improperly frames the issue on appeal in terms of whether the trial
court erred in denying the motion to suppress. The issue, rather, is whether the
trial court abused its discretion by admitting the challenged evidence at trial.
See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). On review for abuse of
discretion, we will reverse “only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.” Id. at 260.
[12] On appeal, Williams effectively concedes that his encounter with Officers Hollo
and Nicklow was consensual.1 Indeed, he was not in custody or detained in
any way at the time he gave Officer Hollo permission to search his pocket.
Williams’s argument is simply that Officer Hollo’s search exceeded the scope of
the consent given. According to Williams, his consent was limited to a search
of his pocket to see if it contained a weapon. Once Officer Hollo determined
that there was no weapon, Williams contends that the officer should have
ended the search without removing the pill bottle.
[13] Williams’s argument is well off the mark. As our Supreme Court has
recognized, many search and seizure issues are resolved in the same manner
under both the Indiana and Federal Constitutions. See State v. Cunningham, 26
N.E.3d 21, 25 (Ind. 2015). This case falls within that category. See id. Under
both Constitutions, a search requires a warrant unless certain narrow exceptions
1 “Consensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth Amendment analysis.” Id. at 261.
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 5 of 7 apply, one of which is a search based on lawful consent. Id. See also Florida v.
Jimeno, 500 U.S. 248, 250-51 (1991) (“we have long approved consensual
searches because it is no doubt reasonable for the police to conduct a search
once they have been permitted to do so”).
[14] A consensual search allows the individual consenting to the search to limit or
restrict the search as he or she chooses. Cunningham, 26 N.E.3d at 28. The
scope of the search is generally defined by the expressed object of the search,
which “limit[s] only ‘where police may look, not what they actually find.’” Id.
(quoting McIlquham v. State, 10 N.E.3d 506, 513 (Ind. 2014)). See also Jimeno,
500 U.S. at 251.
[15] In this case, Williams consented to the search of his pocket by Officer Hollo
and did not articulate any limitation on the scope of that search. Neither
Williams nor Officer Hollo stated at the time that the search was intended to be
a search for weapons, and we will not infer such an unexpressed limitation.
Based on the brief, casual exchange between Williams and Officer Hollo, a
“typical reasonable person” would have understood that Williams’s general
consent to see what was inside his pocket included consent to remove the pill
bottle from inside that pocket. Jimeno, 500 U.S. at 251 (“The standard for
measuring the scope of a suspect’s consent…is that of ‘objective’ reasonableness
– what would the typical reasonable person have understood by the exchange
between the officer and the suspect?”). Because the search did not exceed the
scope of Williams’s consent, the trial court properly admitted the evidence.
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 6 of 7 [16] Judgment affirmed.
[17] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 7 of 7