Matthew B. Bakewell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 25, 2017
• Docket: 20A05-1603-CR-705
• 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 Jan 25 2017, 9:05 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew B. Bakewell, January 25, 2017 Appellant-Defendant, Court of Appeals Case No. 20A05-1603-CR-705 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge Trial Court Cause No. 20D03-1406-FB-61

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 1 of 14 STATEMENT OF THE CASE [1] Appellant-Defendant, Matthew B. Bakewell (Bakewell), appeals his conviction

for dealing in methamphetamine, a Class B felony, Ind. Code § 35-48-4-

1.1(a)(1)(A); and possession of marijuana, a Class A misdemeanor, I.C. § 35-

48-4-11(1).

[2] We affirm.

ISSUE [3] Bakewell presents us with one issue on appeal, which we restate as: Whether

the trial court abused its discretion by admitting evidence obtained pursuant to

a warrantless search.

FACTS AND PROCEDURAL HISTORY [4] On June 6, 2014, Elkhart County Sheriff’s Deputy Bob Smith (Officer Smith)

received a tip from an unidentified member of the Drug Unit that someone was

manufacturing methamphetamine in room 124 of the Day Lite Inn, located in

Elkhart County, Indiana. Officer Smith, together with his trainee Elkhart

County Sheriff’s Deputy Eric Dilley (Officer Dilley), responded to the tip.

Upon arrival at the Day Lite Inn, the officers first stopped at the front desk to

determine the identity of the current resident in room 124. The manager

informed them that the room had been rented to and paid for by Lonna Gillison

(Gillison).

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 2 of 14 [5] When the officers arrived at room 124, Officer Smith knocked on the door

several times. Neither officer noticed any unusual odor emanating from the

room. After several repeated attempts knocking on the door, a female voice

from inside the room inquired who was there. Officer Smith announced,

“Sheriff’s Department.” (Transcript pp. 19-20). The window curtain moved

and a woman looked out at the officers. After she shut the curtain, the officers

could hear the woman talking to someone inside the hotel room. Shortly

thereafter, the woman, later identified as Gillison, opened the door. Officer

Smith introduced himself and asked if he “could step into the room to talk to

the people inside.” (Tr. p. 24). Gillison replied, “Yes,” and stepped aside for

the officers to enter. (Tr. p. 24). Upon entering, the officers noticed a male,

later identified as Bakewell, sitting on one of the beds in the room. Officer

Smith explained that they were following up on an “anonymous tip that drug

use was going on” in the room. (Tr. p. 26). While talking, Officer Smith

noticed “a bud of what” the officer believed to be marijuana sitting on a

nightstand in between the two beds. (Tr. p. 27). Officer Smith did not mention

that he had seen the marijuana, nor did he place Bakewell and Gillison under

arrest.

[6] Officer Smith asked Gillison and Bakewell for their consent to search the room.

They both agreed to the request. Officer Smith walked around the room and

asked if he could look under the bed Bakewell was sitting on. Again, both

consented. Bakewell “even stood up and moved from the bed[.]” (Tr. p. 29).

Officer Smith picked up the mattress and noticed numerous baggies, as well as

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 3 of 14 a coffee filter that contained a white substance believed to be

methamphetamine. At this point, Officer Smith read the Pirtle warnings to

Bakewell and Gillison, and asked again for permission to search the room.

“Bakewell would not respond whether he would give consent to search the rest

of the room[.]” (Tr. p. 31). Officer Smith called for backup to secure the room

while he applied for a search warrant. The search warrant was granted later

that night. A subsequent search of the hotel room revealed numerous items

used in the manufacturing of methamphetamine. When confronted with the

evidence, Bakewell admitted to having manufactured methamphetamine the

night before but added that he had not been planning on manufacturing

methamphetamine that night.

[7] On June 11, 2014, the State filed an Information, charging Bakewell with

Count I, dealing in methamphetamine, a Class B felony; Count II, possession

of methamphetamine, a Class D felony; and Count III, possession of

marijuana, a Class A misdemeanor. On May 29, 2015, Bakewell filed a motion

to dismiss the evidence discovered pursuant to a warrantless search. On

October 16, 2015, following a hearing, the trial court denied the motion. On

December 2, 2015, the trial court conducted a bench trial. At the close of the

evidence, the trial court took the matter under advisement. On January 19,

2016, the trial court entered an order finding Bakewell guilty on Count I and

III, and not guilty on Count II. On March 15, 2016, the trial court sentenced

Bakewell to thirteen years of imprisonment for dealing in methamphetamine

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 4 of 14 and one year for possession of marijuana, with both Counts to be served

concurrently and five years suspended to probation.

[8] Bakewell now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [9] Bakewell contends that the trial court abused its discretion in admitting the

evidence discovered as a result of the warrantless search of the hotel room. The

State argued, and the trial court agreed, that no Fourth Amendment violation

occurred since the officers obtained a voluntary consent to enter and search the

hotel room. The standard of review for admissibility of evidence is an abuse of

discretion. Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011),

trans. denied. The trial court abuses its discretion only when its action is clearly

erroneous and against the logic and effect of the facts and circumstances before

the court. Id. Even when the trial court erred in its ruling on the admissibility

of evidence, this court will reverse only if the error is inconsistent with

substantial justice. Id.

[10] The Fourth Amendment to the United States Constitution generally prohibits

warrantless searches. Peel v. State, 868 N.E.2d 569, 574 (Ind. Ct. App. 2007).

The purpose of the Fourth Amendment is to protect the privacy and possessory

interests of individuals by prohibiting unreasonable searches and seizures. Id.

If a warrantless search is conducted, the burden is on the State to prove that, at

the time of the search, an exception to the warrant requirement existed. Id.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 5 of 14 That is, searches conducted without a warrant are per se unreasonable, subject

to a few well-delineated exceptions. Id. at 575.

[11] Hotel guests enjoy the same constitutional protection against unreasonable

search and seizure as do occupants of private residences. Id. An occupant of a

motel room has standing to challenge a search even, where, as here, he 1 or she

has not paid for the room. Ceroni v. State, 559 N.E.2d 372, 373 (Ind. Ct. App.

1990), trans. denied.

[12] One exception to the warrant requirement occurs when consent is given for the

search. Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006). The theory

underlying the exception is that, when an individual gives the State permission

to search either his person or property, the governmental intrusion is

presumably reasonable. Buckley v. State, 797 N.E.2d 845, 849 (Ind. Ct. App.

2003). When seeking to rely upon consent to justify a warrantless search, the

State has the burden of proving “‘that the consent was in fact voluntarily given,

and not the result of duress or coercion, express or implied.’” Campos v. State,

885 N.E.2d 590, 600 (Ind. 2008) (quoting Schneckloth v. Bustamonte, 412 U.S.

218, 248, 93 S.Ct. 2014, 36 L.Ed.2d 854 (1973)). The voluntariness of a

defendant’s consent is determined from the totality of the circumstances.

Schneckloth, 412 U.S. at 248-49. Under the particularities of this case, Bakewell

1 The record reflects that Gillison paid for the hotel room.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 6 of 14 disputes the voluntariness of the consent to enter the room and the consent to

search the hotel room. We will discuss each consent separately.

I. Consent to Enter

[13] Bakewell contends that the “knock and talk investigation” employed by the

officers to gain entry into the room implicated his Fourth Amendment Rights.

(Appellant’s Br. p. 14). Bakewell maintains that because the officers were

trying to hide from the window when they first knocked on the door, the

officers “communicated to a reasonable person they were not at liberty to

ignore the police presence and go about their business.” (Appellant’s Br. p. 15).

[14] “A knock and talk investigation involves officers knocking on the door of a

house, identifying themselves as officers, asking to talk to the occupant about a

criminal complaint, and eventually requesting permission to search the house.”

Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003) (internal quotation and

citation omitted), trans. denied. The knock and talk procedure “does not per se

violate the Fourth Amendment.” Id. at 498. Neither probable cause nor

reasonable suspicion is a constitutional prerequisite for a knock and talk

investigation, and suspicion based on an anonymous tip is a proper basis for

officers to enter the curtilage of private property and make inquiries of the

occupants. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). The knock and

talk procedure does, however, implicate the Fourth Amendment if under the

totality of the circumstances a reasonable person would not feel free to refuse

the officers entry, ignore the officers’ inquiries, and go about his business.

Redden v. State, 850 N.E.2d 451, 458-59 (Ind. Ct. App. 2006), trans. denied. We

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 7 of 14 have previously observed that a reasonable person may not feel free to ignore

officers’ entreaties if, for example there is a threatening presence of several

officers, one or more officers displays a weapon, an officer physically touches

the person, or the tone of the officer’s voice indicates that compliance with the

officer’s request might be compelled. Overstreet v. State, 724 N.E.2d 661, 664

(Ind. Ct. App. 2000), trans. denied.

[15] While we have noted that a knock and talk investigation is “inherently coercive

to some degree,” we cannot say that an illegal seizure occurred here. Hayes,

794 N.E.2d at 496. The evidence most favorable to the trial court’s ruling

reflects that after the officers had repeatedly knocked on the door, Gillison

inquired who was there. Officer Smith announced the presence of the “Sheriff’s

Department.” (Tr. pp. 19-20). When Gillison opened the door, Officer Smith,

in full police uniform, introduced himself and asked if he “could step into the

room to talk to the people inside.” (Tr. p. 24). The record indicates that

Gillison replied affirmatively and stepped aside for the officers to enter. Officer

Smith explained that they were investigating an anonymous tip of drug use.

There is no evidence that the officers touched Bakewell or Gillison, drew their

weapons, or used a forceful tone of voice. Accordingly, mindful of the

circumstances of this exchange, the officers’ conduct did not communicate to a

reasonable person that he or she was not at liberty to ignore the officers’

presence. See Redden, 850 N.E.2d at 458-59.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 8 of 14 II. Consent to Search

[16] Next, Bakewell contends that he and Gillison were in custody at the moment

the officers noticed the marijuana on the nightstand and therefore the Pirtle

warnings should have been administered prior to requesting consent to search

the room.

[17] Indiana’s law on consent to search derives from Pirtle v. State, 323 N.E.2d 635,

640 (Ind. 1975), which held that “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.” Thus, “a person in

custody must be informed of the right to consult with counsel about the

possibility of consenting to a search before a valid consent can be given.” Jones

v. State, 655 N.E.2d 49, 54 (Ind. 1995). We determine whether a person is “in

custody” by applying an objective test, asking whether a reasonable person

under the same circumstances would believe that he was under arrest or not free

to resist the entreaties of the police. Sellmer, 842 N.E.2d at 363.

[18] In support of his argument that he was in custody as soon as the officers entered

the room and noticed the marijuana on the nightstand, Bakewell refers to Peel v.

State, 868 N.E.2d 569 (Ind. Ct. App. 2007). 2 In Peel, five police officers and a

2 Bakewell also focuses on State v. Linck, 708 N.E.2d 60 (Ind. Ct. App. 1999), trans. vacated, in support of his argument. In Linck, police officers were dispatched to Linck’s apartment to investigate a complaint of illegal drug use. Id. at 61. Arriving at the apartment, the officers smelled burning marijuana. Id. After allowing the officers to enter his apartment, the officers informed Linck of their investigation and asked him what the problem was. Id. Linck replied that he had just smoked a joint. Id. Based on Linck’s response, the officers inquired whether there was anything left. Id. at 62. Linck replied affirmatively and retrieved a bag of marijuana from the refrigerator and one from the bedroom. Linck was then placed under arrest. Id.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 9 of 14 canine unit arriving at Peel’s motel room after a complaint noticed an odor of

marijuana emanating from the room. Id. at 572. After Peel opened the door,

the officers informed him about the complaint and asked him if he had been

smoking marijuana in the room. Id. Peel admitted to it, but informed the

officers that there was nothing left. Id. The officers directed Peel and another

occupant of the room to exit the room and one of the officers testified that

neither individual was “free to wander off.” Id. at 573. The other occupant

told the officers that he and Peel had been smoking marijuana earlier and

admitted to hiding the marijuana under the beds. Id. The officers asked for and

received permission to search the room. Id. Based on these circumstances and

the officers’ incriminating questions immediately after the occupant had

admitted to smoking marijuana in the room, the court concluded that Peel was

in custody at the moment the officers requested consent to search the room. Id.

at 577-78.

[19] Upon review, we find Peel easily distinguishable from the situation at hand.

Unlike the officers in Peel, Officer Smith did not ask Bakewell or Gillison any

incriminating questions upon noticing a bud of marijuana sitting on a table in

between the two beds. In fact, Officer Smith testified that he never mentioned

the marijuana on the nightstand.

However, we find Linck inapposite as Linck relies upon the lack of Miranda warnings prior to making incriminating statements to the police; no request to search Linck’s apartment was ever made by the police officers. See Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (“[G]iving an arrestee Miranda warnings [] does not sufficiently inform him of his right to consult with counsel prior to consenting to a search”).

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 10 of 14 [20] Based on the totality of the circumstances in light most favorable to the

judgment, we find that Bakewell was not in custody nor was he arrested when

Officer Smith requested consent to search the hotel room and therefore the

Pirtle warnings did not attach. At trial, Officer Smith explained that he had

informed Bakewell and Gillison that the officers were following up on a tip of

drug use in the room. Officer Smith testified that even though he had observed

a bud of marijuana, which appeared to be less than one gram, he did not notice

any smell of marijuana in the room. He stated that he did not mention his

observations to Bakewell or Gillison and affirmed that he would have allowed

them to exit if they had decided to walk out the room. At the moment the

request for a search of the room was made, Bakewell spoke voluntarily to the

officers, was not physically restrained nor was he asked any incriminating

questions or badgered to give consent. Only two officers were present and the

entire encounter from when the officers arrived at the hotel lasted only

approximately twenty-five minutes. Because Bakewell’s consent to a search of

the hotel room was not constitutionally defective, the trial court properly

admitted the evidence discovered following the search of the room.

III. Search Warrant

[21] Lastly, Bakewell contends that Officer Smith’s affidavit for search warrant was

insufficient to constitute probable cause as it failed “to establish the anonymous

tipster[’s] reliability[.]” (Appellant’s Br. p. 17). Specifically, Bakewell

maintains that “[t]here is no information available as to whether the informant

has given correct information in the past or the information’s hearsay that the

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 11 of 14 unidentified individuals would be manufacturing methamphetamine at the

location.” (Appellant’s App. p. 17).

[22] In determining whether to issue a search warrant, “‘[t]he task of the issuing

magistrate 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

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, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). When reviewing a

magistrate’s decision to issue a warrant, the reviewing court applies a

deferential standard. Newby v. State, 701 N.E.2d 593, 598 (Ind. 1998). We will

affirm the magistrate’s decision to issue the warrant if the magistrate had a

“substantial basis” for concluding that probable cause to search existed. Id.

“Substantial basis” requires us to focus on whether the reasonable inferences

drawn from the totality of the evidence support the probable cause

determination. Id.

[23] The United States Supreme Court has held that uncorroborated hearsay from a

source whose credibility is itself unknown, standing alone, cannot support a

finding of probable cause to issue a search warrant. Gates, 462 U.S. at 227. The

federal test for ensuring the reliability of a hearsay statement in a probable cause

determination allows the use of hearsay only if the totality of the circumstances

corroborates the hearsay. Id. at 230-31. The reliability of hearsay can be

established in a number of ways, including where: (1) the informant has given

correct information in the past, (2) independent police investigation

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 12 of 14 corroborates the informant’s statements, (3) some basis for the informant’s

knowledge is demonstrated, or (4) the informant predicts conduct or activities

by the suspect that are not ordinarily easily predicted. Jaggers, 687 N.E.2d at

183.

[24] Indiana Code section 35-33-5-2(b) provides:

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 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.

[25] Although Officer Smith’s affidavit for search warrant contained a reference to

the hearsay of an “anonymous tip that methamphetamine was being

manufactured in [] hotel room [124],” the affidavit also included the Officer’s

discovery of the marijuana on the nightstand and the methamphetamine under

the mattress located pursuant to a valid consent to search. (State’s Exh. 1).

Accordingly, the reliability of the anonymous source was corroborated by the

results of Officer Smith’s investigation. See Jaggers, 687 N.E.2d at 183.

Therefore, as the totality of the evidence corroborated the hearsay, there was

sufficient probable cause to issue a search warrant for a continued search of the

hotel room.

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 13 of 14 CONCLUSION [26] Based on the foregoing, we hold that the trial court properly admitted the

evidence discovered pursuant to a valid consent to search and a search warrant.

[27] Affirmed.

[28] Crone, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017 Page 14 of 14