Kenneth L. Kemp, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 27, 2015
• Docket: 48A02-1404-CR-254
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 27 2015, 9:21 am 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 ATTORNEY FOR APPELLEE Jill M. Acklin Gregory F. Zoeller McGrath, LLC Attorney General of Indiana Carmel, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth L. Kemp, Jr., February 27, 2015

Appellant-Defendant, Court of Appeals Case No. 48A02-1404-CR-254 v. Appeal from the Madison Circuit Court

State of Indiana, The Honorable Dennis D. Carroll, Judge Appellee-Plaintiff Cause No. 48C06-1210-FB-1988

Mathias, Judge.

[1] Following a jury trial, Kenneth L. Kemp, Jr., (“Kemp”) was convicted in

Madison Circuit Court of two counts of Class D felony dealing in marijuana

and one count of Class D felony maintaining a common nuisance. Kemp

appeals and claims that the trial court erred in admitting into evidence cash and

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 1 of 10 marijuana that was discovered during the stop of his vehicle and the subsequent

search of the car and Kemp’s person, all of which Kemp argues violated his

right to be free from unreasonable searches and seizures.

[2] We affirm.

Facts and Procedural History

[3] In October 2012, detectives from the Delaware County Sheriff’s Department

were investigating a homicide. To assist in their investigation, they requested

the assistance of Sergeant Frank Sigler (“Sigler”) of the Madison County Drug

Task Force. Sigler organized members of the Task Force to observe two

locations in Delaware County where they believed the suspects of the murder

investigation might be located. During surveillance of one of these locations,

the police saw a vehicle at Kemp’s house that matched the description of a

vehicle used by one of the murder suspects. The police also noticed two cars

back into Kemp’s driveway in close proximity to one another, as if one car was

being used to block the view of the other vehicle. At one point, there were

approximately four cars parked in the driveway. The police thought that this

pattern of vehicular traffic was consistent with that of illicit drugs sales.

[4] As they continued to observe the home, the police saw a black minivan drive

away from Kemp’s house with an individual who matched the description of

one of the murder suspects. The police pulled the minivan over to ascertain if

the suspect was in the vehicle. When the occupants of the vehicle did not match

the identity of the homicide suspect, they were allowed to leave.

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 2 of 10 [5] Shortly thereafter, another vehicle, a black Chevrolet Impala, arrived at Kemp’s

home and quickly left. The police also pulled this car over to see if the murder

suspects were in the vehicle. As the police approached the car, they detected the

strong odor of raw marijuana and saw a trash bag behind the passenger’s seat.

Based on the odor of marijuana, the police searched the car and found that the

trash bag contained two gallon-sized plastic bags of marijuana. Also, what

appeared to be blood stains were on the pants and shoes of the driver of this car,

Deondre Turner (“Turner”). Turner declined to cooperate with the police and

was arrested for possession of marijuana. Based upon the evidence seized from

Turner’s car, the police contacted the county prosecutor’s office to obtain a

search warrant for Kemp’s home.

[6] Before the search warrant was obtained, the police observed another vehicle, a

Ford truck, back into Kemp’s driveway. One of the undercover officers

approached the driveway on foot, where he saw Kemp and the driver of the

truck, later identified as Kelsie Smith (“Smith”) load brown plastic grocery bags

into the truck. Smith then drove the truck away from Kemp’s residence to his

home as the police followed him. After Smith pulled into his driveway, the

police pulled in behind him and approached the truck. Smith exited the truck

and immediately informed Elwood Police Captain Jason Brizendine (“Capt.

Brizendine”) that a firearm and marijuana were in the vehicle. Apparently

without even being asked, Smith also told the police that he had purchased two

pounds of marijuana from Kemp. A search of Smith’s truck revealed the

marijuana and a firearm.

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 3 of 10 [7] Before the officers had time to execute the search warrant, Kemp left his house

in his vehicle. The police decided to stop Kemp’s vehicle. After he stopped,

Kemp exited his vehicle, at which time the police detected the strong smell of

marijuana. Capt. Brizendine conducted a pat-down search of Kemp’s person

and felt a hard object in Kemp’s groin. Capt. Brizendine began to retrieve the

object, but before he could, Kemp reached into his pants and pulled the object,

a tightly-packed roll of cash, from his pants and handed it to Capt. Brizendine.

The cash totaled $5,000. Kemp was placed under arrest for dealing in

marijuana, and a subsequent, more thorough search revealed an additional

$995 in cash in Kemp’s pants pocket. When the police discovered this money,

Kemp interjected, “That ain’t no drug money or nothing.” Tr. p. 431. A search

of Kemp’s vehicle incident to the arrest revealed a duffle bag behind the

passenger seat that contained a small amount of loose marijuana.

[8] The State subsequently charged Kemp with Class B felony possession of a

firearm by a serious violent felon, two counts of Class D felony dealing in

marijuana, Class D felony possession of marijuana, Class D felony maintaining

a common nuisance, and Class A misdemeanor possession of marijuana; the

State also alleged that Kemp was an habitual substance offender.

[9] Kemp filed a motion to suppress on February 22, 2013, claiming that the

evidence discovered during the traffic stop and subsequent search of his person

and vehicle was the result of an unconstitutional search and seizure. The trial

court held a suppression hearing on March 15, 2013, and entered an order

denying Kemp’s motion on May 8, 2013.

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 4 of 10 [10] On March 7, a bifurcated jury trial began. During the first phase of the trial, the

jury found Kemp guilty of two counts of Class D felony dealing in marijuana,

Class D felony maintaining a common nuisance, and Class A misdemeanor

possession of marijuana. During the second phase of the trial, the jury acquitted

Kemp of possession of a handgun by a serious violent felon. Kemp then

pleaded guilty to the habitual substance offender allegation.

[11] The trial court held a sentencing hearing on April 7, 2013, at which time the

State moved to dismiss the remaining charge of Class D felony possession of

marijuana, and the trial court declined to enter judgment on the misdemeanor

possession verdict. The trial court imposed two concurrent three-year sentences

on the Class D felony dealing convictions and a one-year sentence on the Class

D felony maintaining a common nuisance conviction, to be served consecutive

to the three-year sentences. The trial court also enhanced Kemp’s sentence by

four years as an habitual substance offender. Thus, Kemp received an aggregate

sentence of eight years. Kemp now appeals.

I. Waiver

[12] Before addressing the merits of Kemp’s claims, we first consider the State’s

argument that Kemp did not properly preserve his current argument for

purposes of appellate review. Kemp filed a pre-trial motion to suppress the

evidence found during the search of his vehicle and person, claiming that it

violated his right to be free from unreasonable searches and seizures under both

Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to

the United States Constitution. After the trial court denied this motion, Kemp’s

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 5 of 10 counsel objected to evidence found during the search at trial and requested a

continuing objection. The trial court granted this request, noting Kemp’s

continuing objection to “any evidence that relates to [the] search and seizure”

and that Kemp “does not have an obligation to continually raise that issue and

the arguments are those which were previously asserted and fully briefed at a

prior time.” Tr. p. 359.

[13] As we explained in some detail in Hayworth v. State, 904 N.E.2d 684, 691-92

(Ind. Ct. App. 2009), Indiana recognizes the validity and utility of continuing

objections. Here, Kemp properly obtained a continuing objection. However,

when the State moved to admit certain evidence seized during the search — the

cash found on Kemp and the marijuana found in Kemp’s vehicle — Kemp’s

counsel specifically stated “no objection.” Tr. pp. 581-83, 647. By stating

affirmatively that he had “no objection,” Kemp waived his continuing objection

to this evidence. See Hayworth, 904 N.E.2d at 693-94 (holding that, assuming

that trial court granted defendant’s request for a continuing objection, defendant

waived the objection by affirmatively stating “no objection” when the evidence

was proffered). Instead, the proper procedure in such a situation is to remain

silent, not state that there is “no objection” to the evidence. Id. at 694. Still,

because we prefer to consider the parties’ arguments on the merits, we will

address Kemp’s arguments.

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 6 of 10 II. Warrantless Search of Kemp and His Vehicle

A. Standard of Review

[14] When a defendant challenges the propriety of a search following a completed

trial, the issue is one of whether the trial court properly admitted the evidence.

Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010). Questions

regarding the admission of evidence are left to the sound discretion of the trial

court, and we review the court’s decision on appeal only for an abuse of that

discretion. Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 2013), trans.

denied. The trial court abuses its discretion only if its decision is clearly against

the logic and effect of the facts and circumstances before it, or if the court has

misinterpreted the law. Id. Whether the challenge is made through a pretrial

motion to suppress or by an objection at trial, our review of rulings on the

admissibility of evidence is essentially the same: we do not reweigh the

evidence, and we consider conflicting evidence in a light most favorable to the

trial court’s ruling, but we may also consider any undisputed evidence that is

favorable to the defendant. Id.

B. The Fourth Amendment

[15] Kemp argues that the search of his person and vehicle violated his right to be

free from unreasonable searches and seizures as guaranteed by the Fourth

Amendment to the United States Constitution. The Fourth Amendment

protects “the right of the people to be secure in their persons, houses, papers

and effects, against unreasonable searches and seizures[.]” U.S. Const. Amend.

IV. These protections against unreasonable governmental searches and seizures

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 7 of 10 are a principal mode of discouraging lawless police conduct. Friend v. State, 858

N.E.2d 646, 650 (Ind. Ct. App. 2006) (citing Jones v. State, 655 N.E.2d 49, 54

(Ind. 1995); Terry v. Ohio, 392 U.S. 1, 12 (1968)). If the police conduct a

warrantless search, the State bears the burden of establishing that an exception

to the warrant requirement is applicable. Id.

[16] Kemp argues that the existence of a warrant to search his home cannot justify a

search of his car, citing Bailey v. United States, 133 S. Ct. 1031 (2013). Bailey held

that [o]nce an individual has left the immediate vicinity of a premises to be

searched . . . detentions must be justified by some . . . rationale” other than the

warrant to search the premises. Id. at 1043. Here, we believe some rationale

existed other than the existence of the warrant to search Kemp’s house;

specifically, the existence of probable cause to arrest Kemp for possession of,

and dealing in, marijuana.

[17] An officer has probable cause to arrest when, at the time of the arrest, that

officer has knowledge of facts and circumstances that would warrant a

reasonable person to believe that the suspect has committed the criminal act in

question. Clark v. State, 808 N.E.2d 1183, 1192 (Ind. 2004); see also Kelly v. State,

997 N.E.2d 1045, 1051 (Ind. 2013) (noting that an officer may arrest a person if

he has knowledge of facts and circumstances that would warrant a man of

reasonable caution to believe that the defendant committed the criminal act in

question). The amount of evidence necessary to meet the probable cause

requirement is determined on a case-by-case basis. Clark, 808 N.E.2d at 1192.

This determination is grounded in notions of common sense, not mathematical

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 8 of 10 precision. Clark, 808 N.E.2d at 1192. The existence of probable cause is a fact-

sensitive determination. Kelly, 997 N.E.2d at 1051. It is irrelevant whether the

police subjectively believed that probable cause existed. VanPelt v. State, 760

N.E.2d 218, 223 (Ind. Ct. App. 2001).

[18] Here, the police observed vehicular traffic at Kemp’s residence that was

consistent with dealing in illicit drugs. The police discovered a large amount of

marijuana in Turner’s vehicle shortly after he left Kemp’s residence. An officer

saw Kemp and another man load two plastic grocery bags in Smith’s truck.

When approached by the police, Smith admitted that he had marijuana in his

truck, and he stated that he had just purchased the marijuana from Kemp. Even

though Smith was caught “red handed,” and his statements were therefore not

entirely against his penal interest, his statements were corroborated by the

traffic at Kemp’s house, the activity seen by the police, and the marijuana found

in Turner’s vehicle. Cf. State v. Spillers, 847 N.E.2d 949, 955-56 (Ind. 2006)

(noting that statement of individual caught “red handed” is not truly against his

penal interest and is more likely an effort to curry favor with the police, but also

noting that informant’s statements were uncorroborated). Based on these facts

and circumstances, the trial court could reasonably conclude that the police had

probable cause to stop Kemp’s car and arrest him for possession of and dealing

in marijuana.

[19] Because the police had probable cause to arrest Kemp for possession of and

dealing in marijuana, they also had the authority to search Kemp’s person

incident to his arrest. See Richard v. State, 7 N.E.3d 347, 349 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision No. 48A02-1404-CR-254 | February 27, 2015 Page 9 of 10 2014) (noting that one exception to warrant requirement is a search incident to

lawful arrest), trans. denied. With regard to the small amount of loose marijuana

found in Kemp’s vehicle, the police testified that Kemp’s car had a strong odor

of marijuana about it, thus giving them separate probable cause to search the

vehicle. See Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (noting that

smell of either burnt or raw marijuana is sufficient to provide probable cause),

trans. denied.

Conclusion

[20] The trial court did not err in admitting into evidence the cash and marijuana

that was discovered on Kemp during the search of his person following the stop

of his vehicle. The facts and circumstances known to the police at the time they

initiated the stop of Kemp’s vehicle was sufficient to establish probable cause to

arrest Kemp for possession of and dealing in marijuana. Therefore, the search

of Kemp’s person was justified as a search incident to lawful arrest.

Additionally, the smell of marijuana emanating from Kemp’s vehicle gave the

police probable cause to search the vehicle, and in the vehicle they found a

duffle bag containing a small amount of loose marijuana. Accordingly, we

affirm the judgment of the trial court.

[21] Affirmed.

Najam, J., and Bradford, J., concur.

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