Kevin E. Clark, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 19A-CR-283
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 24 2019, 10:09 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 Russell W. Brown, Jr. Curtis T. Hill, Jr. King Brown & Murdaugh, LLC Attorney General of Indiana Merrillville, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin E. Clark, Jr., September 24, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-283 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Roger V. Bradford, Appellee-Plaintiff. Judge Trial Court Cause No. 64D01-1410-F5-8782

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Kevin E. Clark, Jr. (Clark), appeals his conviction for

maintaining a common nuisance, a Level 6 felony, Ind. Code § 35-48-4-

13(b)(2).

[2] We affirm.

ISSUES [3] Clark presents two issues for our review, which we restate as follows:

(1) Whether the trial court abused its discretion by admitting into evidence

the marijuana found in a package and in Clark’s basketball shorts; and

(2) Whether the trial court properly instructed the jury.

FACTS AND PROCEDURAL HISTORY [4] On the morning of September 30, 2014, United States Postal Inspector, Steven

Sadowitz (Sadowitz), contacted the Porter County Drug Task Force regarding a

suspicious package that was received at the mail processing and distribution

center in Gary, Indiana. His suspicion was aroused due to the package’s weight

of approximately nineteen pounds, its shipment address in San Francisco, and

its delivery address in Northwest Indiana. Sadowitz transported the package to

the Portage Police Department where a canine conducted an open-air sniff and

alerted on the package.

[5] Deciding to make a controlled delivery of the package in conjunction with the

Drug Task Force, Sadowitz obtained a carrier uniform and vehicle. When he

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 2 of 13 arrived at the address listed on the package, a man, later identified as Clark,

opened the door of the residence. Sadowitz announced that he had a package

for Eric Morris, to which Clark replied, “That’s me.” (Transcript Vol. II, p.

138). While Clark signed the delivery slip for the package, Sadowitz smelled

“quite an odor of marijuana” coming from the open door to the house. (Tr.

Vol. II, p. 138). After Clark signed for the package, officers, who had been

conducting surveillance, approached the residence.

[6] Porter County Sheriff’s Detective James Gaskill (Detective Gaskill)

“immediately smelled marijuana.” (Tr. Vol. II, p. 164). Detective Gaskill

secured the residence with a protective sweep, placed Clark in handcuffs, and

advised him of his Miranda rights. During the protective sweep, Detective

Gaskill located a mason jar with marijuana and burnt roaches in the master

bedroom. Detective Gaskill inquired about the strong odor of marijuana and

Clark admitted that he had “just smoked a joint.” (Tr. Vol. II, p. 177). When

Clark denied being Eric Morris, Detective Gaskill asked to see his

identification. After Clark advised that his identification was in the pocket of

his basketball shorts, Portage Police Officer Joshua Dobson (Officer Dobson)

retrieved his shorts. Reaching in the inside pocket of the shorts, the officer

found marijuana, cash, and Clark’s identification. Detective Gaskill sought a

search warrant for the house and the package. Once the search warrant for the

package was obtained and the package was opened, the officers located 10.6

pounds of marijuana inside.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 3 of 13 [7] On October 6, 2014, the State filed an Information, charging Clark with Count

I, dealing in marijuana, a Level 5 felony; and Count II, maintaining a common

nuisance, a Level 6 felony. On June 1, 2015, Clark filed a motion to suppress

the evidence discovered as a result of the protective sweep and the search

warrant. On September 26, 2016, the trial court conducted a hearing on Clark’s

motion. Following the hearing, the trial court issued an order granting the

motion to suppress with regard “to anything that was taken inside the residence

pursuant to the search warrant that was issued.” (Appellant’s App. Vol. II, p.

44). The trial court denied the motion “as to the contents of the package that

was kept outside the residence during the entire proceeding.” (Appellant’s App.

Vol. II, p. 44). Clark sought an interlocutory appeal of the trial court’s order,

which this court declined to accept.

[8] On September 18 through 19, 2018, the trial court conducted a jury trial. After

Officer Dobson testified that the package had been brought inside the residence,

Clark renewed his motion to suppress based upon the trial court’s previous

order suppressing the evidence of anything that was taken inside the residence.

The trial court denied the renewed motion, explaining that it was “poor

wording” on the court’s part and that its “intention was that anything dealing

with that package that was delivered was not suppressed, regardless of where it

ended up.” (Tr. Vol. II, p. 162). At the close of the evidence, the jury returned

a guilty verdict on the Level 6 felony maintaining a common nuisance and

found Clark not guilty of the Level 5 felony dealing in marijuana. On January

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 4 of 13 7, 2019, during the sentencing hearing, the trial court imposed a sentence of one

year, suspended entirely to probation.

[9] Clark now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Admission of the Evidence

[10] Clark contends that the trial court abused its discretion when it admitted the

evidence found in the package and in Clark’s basketball shorts. The general

admission of evidence at trial is a matter we leave to the discretion of the trial

court. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). We review a trial

court’s determination for abuse of that discretion and 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. However, where a trial

court’s ruling pertains to the constitutionality of a search or seizure, the trial

court’s decision is reviewed de novo. Garcia v. State, 47 N.E.3d 1196, 1199 (Ind.

2016).

A. Search of the Package

[11] Relying on the Fourth Amendment to the United States Constitution and

Article I, Section 11 of the Indiana Constitution, 1 Clark claims that the

1 Although Clark cites to the relevant provisions of the Indiana Constitution and notes that the review is analytically distinct, he fails to develop this argument. Therefore, any claim under the Indiana Constitution is waived. Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 5 of 13 marijuana in the package was discovered pursuant to an illegal warrant. He

maintains that because the illegally obtained evidence of the protective sweep

was used to bolster the probable cause of the search warrant for the package, the

package’s search warrant is invalid.

[12] In general, the ordinary remedy for an unconstitutional search is exclusion of

the evidence obtained “in a prosecution against the victim of the unlawful

search . . . absent evidence of a recognized exception.” Clark v. State, 994

N.E.2d 252, 260 (Ind. 2013). The Fourth Amendment to the United States

Constitution requires probable cause for the issuance of a search warrant.

Mehring v. State, 884 N.E.2d 371, 376-77 (Ind. Ct. App. 2008), trans. denied.

Probable cause is a fluid concept incapable of precise definition and is to be decided based on the facts of each case. In deciding whether to issue a search warrant, the issuing magistrate’s task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. The reviewing court’s duty is to determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. A substantial basis requires the reviewing court, with significant deference to the magistrate’s determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the finding of probable cause. A reviewing court, for this purpose includes both the trial court ruling on a suppression motion and an appellate court reviewing that decision. . . . [W]e will not invalidate a warrant by interpreting probable cause affidavits in a hypertechnical, rather than a common[-]sense, manner.

Id. at 376-77 (quotation marks and citations omitted).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 6 of 13 [13] In support of his argument that the package was opened pursuant to an invalid

search warrant, Clark refers this court to Esquerdo v. State, 640 N.E.2d 1023

(Ind. 1994). In Esquerdo, police officers forcibly entered a residence without a

search warrant after the confidential informant, who had just conducted a

controlled buy at the residence, informed them that Esquerdo was about to

leave and could be destroying evidence. Id. at 1025. After securing the

residence, the officers obtained a search warrant. Id. Our supreme court

concluded that in issuing the search warrant, the issuing magistrate relied upon

contraband observed during the illegal entry of the residence. Id. at 1030. As a

result, the supreme court declared the search warrant to be invalid. Id. “To

allow use of the bad evidence would give the police incentive to enter the

residence, without a judicially-issued warrant, and search for evidence to bolster

any evidence supporting probable cause that the police already possess. This is

plainly what the constitutional protections against unreasonable searches

restrict against.” Id. at 1030.

[14] Clark’s reliance on Esquerdo is misplaced. It is a well-recognized legal premise

that “where a search warrant is based on both legally obtained information and

information obtained in contravention of the Fourth Amendment,” this court

“will determine the legitimacy of the warrant only in light of the legally

obtained information.” Perez v. State, 27 N.E.3d 1144, 1153 (Ind. Ct. App.

2015), trans. denied. If probable cause remains to support the warrant after the

illegally obtained information is excised from the warrant application, the

warrant is still valid and its fruits are admissible. Id. at 1153-54. Here, excising

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 7 of 13 from the probable cause affidavit the information obtained during the illegal

protective sweep—a mason jar with marijuana and burnt roaches—the issuing

magistrate still had sufficient information to “make a practical common-sense

decision [that], given all the circumstances set forth in the affidavit, there is a

fair probability that evidence of a crime will be found in a particular place.”

Mehring, 884 N.E.2d at 377-78.

[15] The record reflects that, after Sadowitz became suspicious about the package, a

drug detection dog alerted on the presence of controlled substances in the

package. See State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010) (a drug dog’s

alert to the presence of controlled substances is sufficient to establish probable

cause). Additionally, the search warrant noted that when an officer spoke to

Clark by the open door to the house, the officer smelled a strong odor of

marijuana coming from inside the residence. See Miller v. State, 846 N.E.2d

1077, 1083 (Ind. Ct. App. 2006) (the strong and distinctive odor of marijuana

coming from the defendant’s vehicle provided probable cause to search the

vehicle). Accordingly, we conclude that the trial court properly admitted

evidence that was discovered pursuant to the search warrant for the package

which was supported by probable cause due to the canine alert and the strong

marijuana odor emanating from the residence. The information gained from

the illegal protective sweep was not necessary to the finding of probable cause

to open the package, and thus the warrant remained valid.

B. Clark’s Basketball Shorts

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 8 of 13 [16] Next, Clark maintains that the trial court abused its discretion by admitting the

evidence found in his basketball shorts which was obtained in violation of his

Pirtle rights. After being placed in handcuffs and advised of his Miranda rights,

he claims that he “was entitled to be advised of his right to an attorney prior to

consenting to any search of his basketball shorts [by the officer] to obtain his

identification[.]” (Appellant’s Br. p. 16).

[17] Under Article 1, Section 11 of the Indiana Constitution, “a person who is asked

to give consent to search while in police custody is entitled to the presence and

advice of counsel prior to making the decision whether to give such consent.”

Pirtle v. State, 323 N.E.2d 634, 640 (Ind. 1975). It is undisputed that Clark was

not issued this advisement. Thus, whether the evidence must be suppressed

turns on whether Clark was in custody at the time consent was requested. See

Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009).

[18] However, the officers did not request permission to search Clark’s shorts.

When Clark was asked to confirm his identity, he informed the officers that his

identification was in his shorts. When the officer retrieved the shorts that Clark

referred to, he reached inside the pocket to verify Clark’s identification; the

officer was not searching for contraband. Our supreme court has noted that the

word “search” connotes uncovering that which is hidden, prying into hidden

places for that which is concealed, or an exploratory investigation or quest.

Alcorn v. State, 265 N.E.2d 413, 416 (Ind. 1970). Here, there is no evidence of

an exploratory quest; rather, the officer merely sought to procure Clark’s

identification from the location Clark indicated it could be located—his shorts.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 9 of 13 Therefore, no Pirtle warning was required and the trial court properly admitted

the evidence found in Clark’s basketball shorts.

II. Jury Instruction

[19] Lastly, Clark contends that the trial court abused its discretion in instructing the

jury on the elements of the Level 6 felony maintaining a common nuisance.

Specifically, he claims that the State charged him with “unlawfully keeping”

controlled substances, while the trial court instructed the jury that they had to

find that Clark “unlawfully used” a controlled substance. See I.C. § 35-48-4-

13(b)(1) & (b)(2).

[20] As an initial matter, the State posits that Clark waived this argument. We

agree. Indiana Appellate Rule 46(A)(8)(e) mandates that “[w]hen error is

predicated on the giving or refusing of any instruction, the instruction shall be

set out verbatim in the argument section of the brief with the verbatim objections,

if any, made thereto.” An appellant’s failure to comply with Appellate Rule

46(A)(8)(e) results in waiver of the claimed error. Lahr v. State, 640 N.E.2d 756,

763 (Ind. Ct. App. 1994). Clark failed to include the tendered instruction in his

Brief and has consequently waived any error.

[21] Waiver notwithstanding, Clark did not carry his burden of proof in establishing

that the trial court abused its discretion by instructing the jury. The tendered

instruction stated,

The crime of maintaining a common nuisance is defined by law as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 10 of 13 A person who knowingly or intentionally maintains a building, structure, or other place that is used for the purpose of unlawfully using, keeping, or delivering a controlled substance commits maintaining a common nuisance, a Level 6 felony. To convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant; 2. Knowingly or intentionally; 3. Maintained a building, structure, or other place; 4. That was used for the purpose of unlawfully using, keeping, or delivering a controlled substance. If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Maintaining a Common Nuisance, a Level 6 felony.

(Appellant’s App. Vol. II, p. 103).

[22] Clark does not contend that the jury instruction was an inaccurate statement of

the law; rather Clark alleges, without referring to any supporting caselaw, that

the trial court should not have included the word ‘using’ in the instruction

because the charging Information and probable cause affidavit only referred to

‘keeping’ a controlled substance.

[23] At the time when Clark committed the crime in 2014, maintaining a common

nuisance was defined in subsection (b) as:

A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times: (1) By persons to unlawfully use controlled substances; or (2) For unlawfully (A) Manufacturing; (B) Keeping; (C) Offering for sale; (D) Selling;

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 11 of 13 (E) Delivering; or (F) Financing the delivery of; controlled substances, or items of drug paraphernalia, as described in [I.C. §] 35-48-4-8-5; commits maintaining a common nuisance, a Level 6 felony.

Accordingly, pursuant to the statute applicable in 2014, a person can be

convicted of maintaining a common nuisance as a Level 6 felony by

maintaining a building that is used by persons using controlled substances or for

unlawfully keeping controlled substances.

[24] The jury heard evidence and arguments from both parties that focused on the

‘keeping’ element of the charge. Clark now fails to explain how he could have

been harmed by the trial court’s inclusion of the language from the statute

regarding ‘using’ a controlled substance in addition to also referring to ‘keeping’

a controlled substance. As noted by the State, a person cannot use what he

does not keep. In order for a person to use a controlled substance, the person

must first have or keep the controlled substance. Thus, to the extent that the

jury found that Clark’s home was used to receive and consume the controlled

substance, the jury would also have necessarily found that he had been using

the home to keep the controlled substances. Accordingly, we conclude that the

trial court properly instructed the jury on the charge.

CONCLUSION [25] Based on the foregoing, we conclude that the trial court did not abuse its

discretion in admitting the marijuana found in the package and in Clark’s

basketball shorts; and the trial court properly instructed the jury.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 12 of 13 [26] Affirmed.

[27] Vaidik, C. J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019 Page 13 of 13