Jerry Turner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2017
• Docket: 49A05-1702-CR-241
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 16 2017, 8:45 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 Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerry Turner, August 16, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1702-CR-241 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1507-F2-26390

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 1 of 14 Case Summary [1] Jerry Turner (“Turner”) was convicted of one count of Possession of a Narcotic

Drug, as a Level 4 felony,1 and was sentenced to eight years imprisonment. He

now appeals his conviction.

[2] We affirm and remand with instructions.

Issue [3] Turner raises a single issue for our review, which we restate as whether the trial

court abused its discretion when it admitted evidence obtained during a search,

because the search warrant was not supported by probable cause. 2 We also

address sua sponte a conflict between the trial court’s judgment and sentence as

announced from the bench and the written records in this case.

Facts and Procedural History [4] Brandon Beeler (“Beeler”), a New Palestine resident, died of a heroin overdose

on July 20, 2015. Investigation of Beeler’s death led police to talk to Beeler’s

mother, Kristen Calhoun (“Calhoun”). Calhoun told police about two

individuals with whom Beeler was friends, Angela Davis (“Davis”) and Isaac

1 Ind. Code § 35-48-4-6(a). 2 The State argues that even if the warrant was not valid, the good-faith exception applies. Because we resolve this case on the question presented above, we do not reach arguments concerning the applicability vel non of the good-faith exception.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 2 of 14 Williams (“Williams”). Davis had been with Beeler the night prior to his death,

and Williams was known to Calhoun as a heroin addict with whom Beeler had

spent time in the weeks prior to his death.

[5] Police contacted and separately interviewed both Davis and Williams, and

drove with Davis to an area of Indianapolis to which Davis and Beeler had

traveled on the night prior to Beeler’s death. Based upon their questioning of

Williams, police identified both an apartment building and a specific apartment

in which Williams had seen Beeler purchase heroin. Davis subsequently

corroborated for police the building in which the apartment was located.

[6] Based upon this information, on July 23, 2015, police applied for and received a

search warrant for the apartment Williams identified to police. Police

subsequently searched the apartment, which was occupied by Turner and

another individual, Tiara White (“White”). The search yielded 20 grams of

heroin, more than $1,000 in cash, and other items related to drug use, as well as

information connecting Turner and White to the apartment. Based upon the

results of the search, Turner and White were arrested.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 3 of 14 [7] On July 28, 2015, the State charged Turner with Dealing in a Narcotic Drug, as

a Level 2 felony;3 Possession of a Narcotic Drug, as a Level 3 felony; and

Maintaining a Common Nuisance, as a Level 6 felony. 4

[8] On September 17, 2015, Turner filed a motion to suppress the evidence yielded

from the search of the apartment, challenging as invalid on its face the affidavit

submitted in support of the police request for the search warrant. On December

3, 2015, the trial court denied the motion to suppress. Turner subsequently

sought and was denied certification for an interlocutory appeal of the ruling on

the motion to suppress.

[9] On March 14, 2016, Turner moved the trial court to reconsider the motion to

suppress evidence. On April 16, 2016, the trial court denied the motion; Turner

again sought and was denied certification for interlocutory appeal.

[10] On August 22, 2016, a bench trial was conducted, and Turner and White were

tried jointly. Counsel for both defendants objected to the admission of the

evidence obtained from the search, and once more Turner renewed his motion

to suppress. During the trial, Turner moved for judgment on the evidence as to

the charges of Dealing in a Narcotic Drug and Maintaining a Common

Nuisance. After the close of evidence, the State requested that the trial court

consider a lesser-included offense to the Possession of Narcotics charge against

3 I.C. § 35-48-4-1(a)(2). 4 I.C. § 35-48-4-13(b)(1).

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 4 of 14 Turner, so that the trial court would determine whether to convict Turner of

Possession of Narcotics as a Level 4 felony, rather than as a Level 3 felony. At

the trial’s conclusion, the court took the matters before it under advisement.

[11] On August 22, 2016, the trial court granted Turner’s motion for judgment on

the evidence as to Maintaining a Common Nuisance, finding him not guilty.

[12] On October 12, 2016, the trial court denied the motion to suppress. On the

same day, the court found Turner guilty of Possession of a Narcotic Drug, as a

Level 4 felony, and found him not guilty of Dealing in a Narcotic Drug.

[13] A sentencing hearing was conducted on January 12, 2017. At the conclusion of

the hearing, the trial court sentenced Turner to eight years imprisonment, with

four years of that time executed in the Department of Correction, two years

executed in community corrections, and two years suspended to probation.

[14] This appeal ensued.

Discussion and Decision Probable Cause to Support a Search Warrant [15] Turner challenges the trial court’s admission into evidence, over his objection,

of items obtained from execution of the search warrant. The Fourth

Amendment to the United States Constitution and Article 1, Section 11 of the

Indiana Constitution both afford protection from warrants issued without

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 5 of 14 probable cause. That right is further codified in the Indiana Code, which

provides:

(a) Except as provided in section 8 of this chapter, and subject to the requirements of section 11 of this chapter, if applicable, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:

(1) particularly describing:

(A) the house or place to be searched and the things to be searched for; or

(B) particularly describing the person to be arrested;

(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:

(A) the things sought are concealed there; or

(B) the person to be arrested committed the offense; and

(3) setting forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause.

(b) When based on hearsay, the affidavit must either:

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 6 of 14 and establishing that there is a factual basis for the information furnished; or

(2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

I.C. § 35-33-5-2.

[16] Trial courts are afforded broad discretion in ruling on the admissibility of

evidence, and we reverse only upon a showing of an abuse of that discretion.

Bowles v. State, 820 N.E.2d 739, 742 (Ind. Ct. App. 2005), trans. denied. The role

of the trial court in determining whether to issue a search warrant “‘is simply to

make a practical, commonsense decision whether, given all the circumstances

set forth in the affidavit … there is a fair probability that contraband or evidence

of a crime will be found in a particular place.’” Jaggers v. State, 687 N.E.2d 180,

181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A

reviewing court’s task “is to determine whether the magistrate had a ‘substantial

basis’ for concluding that probable cause existed.” Id. (quoting Gates, 462 U.S.

at 238-39). To determine whether such a substantial basis existed, the

reviewing court focuses on whether reasonable inferences drawn from the

totality of the evidence supported a determination of probable cause, and the

reviewing court will afford the trial court significant deference in that review.

Id. at 181-82. A reviewing court “includes both the trial court ruling on a

motion to suppress and an appellate court reviewing that decision.” Id. at 182.

In conducting our review, “we consider only the evidence presented to the

issuing magistrate and not [post hoc] justifications for the search.” Id.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 7 of 14 [17] Turner argues that the search warrant was invalid because the information used

by the police in the warrant affidavit—the statements made to police by Davis

and Williams—was not sufficiently reliable or corroborated to support a

determination of probable cause, and that accordingly the search warrant was

improperly issued. Turner draws our attention to several cases that address

questions related to the use of hearsay and informants as sources of information

for supporting search warrant applications, and argues that 1) neither Davis nor

Williams were typical “concerned citizens,” so that their statements required

additional corroboration or indicia of reliability, which did not occur, and 2) the

information provided by these individuals was stale and thus not sufficiently

timely to support the issuance of the warrant.

[18] Our Indiana Supreme Court has previously addressed the question of the

reliability of concerned citizens and informants in the context of determining

the existence of probable cause or reasonable suspicion. In Pawloski v. State, the

court distinguished generally between professional informants and anonymous

tipsters, on the one hand, and cooperative citizens, on the other. 269 Ind. 350,

353-54, 380 N.E.2d 1230, 1232-33 (1978). Though it observed that there are

general approaches to determining the reliability of a source of information in

each category, the Pawloski Court nevertheless reiterated that reliability is to be

determined “by reference to (1) an informer’s past record of reliability or (2) by

extrinsic facts proving an informer’s information reliable.” Id. at 353 (citing

Bowles v. State, 256 Ind. 27, 267 N.E.2d 56 (1971)). And even with guidelines

for each category, “the requirement for corroboration is not totally eliminated.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 8 of 14 The amount of evidence necessary to satisfy the probable cause test is largely

determined on a case-by-case basis.” Id. at 255.

[19] The Indiana Supreme Court softened the apparently firm distinctions between

concerned citizens, on the one hand, and professional informants and

anonymous tipsters, on the other. Kellems v. State, 842 N.E.2d 352, 355-56 (Ind.

2006), reversed on reh’g on other grounds, 849 N.E.2d 1110. In Kellems, the court

tempered the categories set forth in Pawloski to apply primarily to matters of

reasonable suspicion, and not probable cause. Id. at 356 (citing Pawloski, 380

N.E.2d at 1232-33). Thus, information obtained from informants must still be

reliable under the totality of the circumstances, and, as the U.S. Supreme Court

observed in Gates, “[r]igid legal rules are ill-suited to an area of such diversity”

as assessing the reliability of information provided in support of a search

warrant application. Gates, 462 U.S. at 232; Jaggers, 687 N.E.2d at 182

(addressing the assessment of reliability of anonymous informants).

[20] Our review of the search warrant application here leads us to conclude that the

information in the warrant and its sources were sufficiently reliable under the

totality of the circumstances. On July 20, 2015, Police commenced their

investigation of Beeler’s death by talking with Calhoun, who informed police

that her son, Beeler, had been in the company of Davis on the night before he

died. Upon speaking with police, Davis provided a detailed account of the

events of the night in question. This included information that Beeler had used

her phone to call someone called “Juicy Jay” or “Juice,” said he had to pay

someone money, and had Davis drive him to an apartment complex on the

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 9 of 14 northeast side of Indianapolis and to several locations afterward, including a

Wal-Mart in which Beeler stayed for about twenty-five minutes for what was

supposed to be a brief errand. The night’s events made Davis suspicious of

Beeler’s behavior. She eventually left Beeler at his mother’s home at 11:30 that

night; unable to sleep, she sent a text message to him at 2:00 a.m. the following

day, and knew that it had been received because it was flagged as “read” on her

phone. Davis was “eager” to cooperate in helping police to locate the

apartment complex to which she had taken Beeler, but was unable to easily find

the complex because Beeler had directed her there, and said she would do more

research to see if she could locate the apartment complex.

[21] A day later, on July 22, 2015, police again spoke with Calhoun, who identified

Williams as a friend of Beeler’s who also had a heroin addiction. Police spoke

with Williams that day, and he stated that he was familiar with someone called

“Juice,” provided a physical description for the person, and identified the

apartment in which he had met “Juice” by providing a specific building

address—3418 Alsuda Court in Indianapolis—and the location of the specific

apartment. Williams provided police with a telephone number for “Juice,”

which was the same number that Davis had provided to police as the number

Beeler dialed from her phone on July 19, 2015. After obtaining this

information from Williams, police again contacted Davis. Davis agreed to

travel by car with police to an intersection in Indianapolis, and was able to

direct police from that intersection to the same apartment building that

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 10 of 14 Williams had identified by street number—3418 Alsuda Court—and physically

identified the building by pointing to it.

[22] These are hardly the kinds of anonymous and unverifiable statements with

which courts have been hesitant to conclude support determinations of

reasonable suspicion or probable cause. Davis willingly and eagerly helped

police, Williams’s statements were made potentially against his own interests,

and information gathered from one was confirmed by the other. Taken

together, we cannot say, under the totality of the circumstances, that the

statements provided to police by Davis and Williams were so lacking in

reliability as to fail to support a finding of probable cause.

[23] Nor do we think that staleness disqualifies the information as unreliable. An

application for a warrant must present timely information. Frasier v. State, 794

N.E.2d 449, 457 (Ind. Ct. App. 2003), trans. denied. There is no bright-line rule

setting forth the amount of time in which police must seek a warrant in the time

that may elapse between the occurrence of the facts upon which the request for

the warrant is based and the date of the issuance of the warrant. Id. Rather, the

facts and circumstances of each case will determine whether the information is

tainted by staleness. Id.

[24] Here, a police investigation commenced on the day of Beeler’s death—July 20,

2015—and the search warrant was issued within three days based upon

corroborated information obtained on July 21 and 22, 2015. The warrant was

served on July 23, 2015. While Turner suggests that Williams’s statements

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 11 of 14 lacked any connection to specific periods of time in which he and Beeler had

encountered “Juice,” the totality of the evidence supports a conclusion that the

information in the warrant was not stale in light of Davis’s corroboration of

Williams’s statements concerning locations and phone numbers based upon

Davis’s description of the events of July 19, 2015. We accordingly leave the

trial court’s decisions as to the admissibility of evidence undisturbed.

Conflicting Orders [25] We sua sponte turn to a discrepancy between the proceedings at trial and the trial

court’s records. After the close of evidence, counsel for White asked that the

trial court consider a lesser-included charge in her case. Partially in response to

this, the State addressed the trial court:

Judge, and with that, as to Count II as to Mr. Turner, he’s charged with level 3 possession because of a prior. It’s not his prior… So, I’m going to be asking for a level 4 possession, a lesser included of the 3.

(Tr. Vol. II at 94.) The trial court confirmed the State’s request: “You’re not

moving to amend? You’re just asking for a lesser included on Count II?,” to

which the State responded, “Yes.” (Tr. Vol. II at 94.) Turner agreed to this

course of action: “That’s fine with us.” (Tr. Vol. II at 94.)

[26] Accordingly, when reaching its guilty finding and orally entering judgment and

a sentence against Turner, the trial court found Turner guilty of Possession of

Narcotics as a Level 4 felony, and determined Turner’s sentence on that basis.

(Tr. Vol. II at 106, 162.) Our review of the docket and the sentencing order, Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 12 of 14 however, indicate that the trial court’s written records reflect conviction and

sentencing for a Level 3 felony. The sentencing order characterizes the guilty

finding as corresponding to “35-48-4-6(a)/F3: Possession of a Narcotic Drug.”

(App’x Vol. II at 19.) The court’s Chronological Case Summary reads

similarly: “Sentenced: …. 2. 35-48-4-6(a)/F3).” (App’x Vol. II at 13.) The

aggregate term of Turner’s sentence, eight years, falls within the statutory

sentencing range for both Level 4 and Level 3 felonies. See I.C. §§ 35-50-2-5 &

35-50-2-5.5 (providing a sentencing range of three to sixteen years for a Level 3

felony, and a sentencing range of two to twelve years for a Level 4 felony).

[27] Thus, the trial court’s statements from the bench conflict with the docket and

the court’s written sentencing order. Nevertheless, it is clear that the trial court

intended to enter judgment and sentence upon a Level 4 felony. We

accordingly remand with instructions to the trial court to correct its written

sentencing order and the docket in conformance with its entry of judgment and

oral sentencing order.

Conclusion [28] The statements in the affidavit submitted in support of the search warrant were

sufficiently reliable and timely to support the trial court’s finding of probable

cause, and its admission of the evidence obtained as a result of service of the

warrant. Because the trial court’s oral entry of judgment and sentence conflict

with its written records, we remand with instructions to enter a new written

sentencing order and to correct the docket.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 13 of 14 [29] Affirmed in part and remanded.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017 Page 14 of 14