Pursuant to Ind. Appellate Rule 65(D), this 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: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana JOSEPH Y. HO Deputy Attorney General
FILED Indianapolis, Indiana
Apr 09 2012, 9:19 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
MYCHAEL NANCE, ) ) Appellant- Defendant, ) ) vs. ) No. 49A05-1108-CR-418 ) STATE OF INDIANA, ) ) Appellee- Plaintiff, )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Peggy Hart, Master Commissioner Cause No. 49G20-1001-FC-4005
April 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Mychael Nance was convicted of dealing in marijuana, a Class C felony. He
raises one issue for our review: whether police officers violated the Fourth Amendment
by searching his home without a warrant. Concluding exigent circumstances justified the
warrantless entry and search of Nance’s home, we affirm.
Facts and Procedural History
In January 2010, the Indianapolis Metropolitan Police Department received a call
from an alarm company requesting police assistance. An alarm was activated at a
residence, Nance’s home, and the home owner(s) was not responding. Officers
Schlesinger and Schmidt arrived at the home and could hear the alarm. They discovered
the front door wide open and the storm door unlocked. The officers announced their
presence several times, but they heard no response. The officers entered the home and
began searching for anyone located inside. On the first floor, Officer Schlesinger
observed a marijuana cigarette in an ashtray in the living room. The officers continued
into the basement, where they discovered numerous marijuana plants and growing
equipment. After hearing footsteps above, the officers ran upstairs and found Nance.
They arrested Nance and conducted a pat-down search. Officer Schlesinger testified that
he felt a squishy bag in Nance’s front pants pocket and it was immediately apparent to
him that it was marijuana. Officer Schlesinger removed the bag and confirmed it
contained marijuana.
Nance then confessed to the police officers he was responsible for the marijuana
grow and everything in his residence. The officers obtained a warrant and seized over
2 three hundred marijuana plants, lighting equipment, power supplies, fertilizer, scales,
loose marijuana, and mail addressed to Nance.
After initially entering into a plea agreement, Nance withdrew his guilty plea. He
thereafter moved to suppress evidence recovered from his residence. On April 7, 2011,
and June 9, 2011, the trial court heard evidence on Nance’s motion to suppress and the
charges against him. On July 14, 2011, the trial court entered a written order with
findings of fact and conclusions of law denying Nance’s motion to suppress evidence and
found Nance guilty of both possession of marijuana and dealing in marijuana. The
possession of marijuana charge merged and he was convicted of dealing in marijuana, a
Class C felony, and sentenced to two years in prison. Nance now appeals.
Discussion and Decision
“The standard of appellate review of a trial court’s ruling on a motion to suppress
is similar to other sufficiency issues. We determine whether substantial evidence of
probative value exists to support the trial court’s ruling. We do not reweigh the evidence
and consider conflicting evidence most favorably to the trial court’s ruling.” Litchfield v.
State, 824 N.E.2d 356, 358 (Ind. 2005) (citations omitted). 1 The Fourth Amendment of
the United States Constitution provides protection for individuals against unreasonable
searches and seizures. U.S. Const. amend. IV. The reasonableness of a search turns on
whether the subject of the search had an expectation of privacy and, if so, whether the
1 Ordinarily, where there has been a trial following a denial of a motion to suppress evidence, we would review the trial court’s decision to admit the evidence at trial. Here, because the motion to suppress and trial were held and decided simultaneously, we are reviewing the decision to deny Nance’s motion to suppress evidence. Nonetheless, if we reviewed the trial court’s decision to admit evidence from the search of Nance’s home our conclusion would not change. Because exigent circumstances existed justifying the warrantless search, the trial court’s admission of evidence resulting from the search is not a manifest abuse of discretion resulting in the denial of a fair trial. See Davis v. State, 749 N.E.2d 552, 556 (Ind. Ct. App. 2001) (“a trial court’s decision to admit evidence at trial will not be reversed absent a showing of a manifest abuse of the trial court’s discretion resulting in the denial of a fair trial.”) (citing Minnick v. State, 544 N.E.2d 471, 477 (Ind. 1989)), trans. denied. 3 expectation was objectively reasonable. Litchfield, 824 N.E.2d at 358. Generally, the
Fourth Amendment requires a lawful warrant to conduct a search or seizure, subject only
to a few specifically established and well-delineated exceptions. Bryant v. State, 660
N.E.2d 290, 300 (Ind. 1995) (citations omitted), cert. denied, 519 U.S. 926 (1996). One
such exception is when exigent circumstances compel quick action before a warrant can
be obtained. Id.
In Bryant, police officers responded to an alarm at Bryant’s residence. Id. at 294.
Upon arrival, the officers found a door open with “fresh pry marks on it” and they
entered and searched the home, discovering hundreds of marijuana plants. Id. Our
supreme court concluded “police may enter private property to protect that property when
they reasonably believe the premises have recently been or are being burglarized.” Id. at
301. Thus, our supreme court concluded the search of Bryant’s home was justified due to
exigent circumstances. Id.
Nance contends our supreme court incorrectly stated Fourth Amendment
jurisprudence by requiring that police have a reasonable belief that a residence was
recently or is being burglarized. Instead, he argues that, in addition to such exigent
circumstances, police also must have probable cause to believe the residence has been or
is being burglarized, and he asks us to alter our supreme court’s precedent accordingly.
For support, he cites Coolidge v. New Hampshire, 403 U.S. 443, 463 (1971) and Welsh
v. Wisconsin, 466 U.S. 740, 741 (1984). However, neither case addresses the application
of the Fourth Amendment to police officers searching a home based on a belief that it has
been or is being burglarized. Coolidge addresses the constitutionality of police searching
a defendant’s car without a warrant after the defendant has been arrested. 403 U.S. at 4 463. Welsh involves police officers entering a home without a warrant in order to arrest
a hit-and-run suspect who was identified at the scene. 466 U.S. at 743. Neither case
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Pursuant to Ind. Appellate Rule 65(D), this 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: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana JOSEPH Y. HO Deputy Attorney General
FILED Indianapolis, Indiana
Apr 09 2012, 9:19 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
MYCHAEL NANCE, ) ) Appellant- Defendant, ) ) vs. ) No. 49A05-1108-CR-418 ) STATE OF INDIANA, ) ) Appellee- Plaintiff, )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Peggy Hart, Master Commissioner Cause No. 49G20-1001-FC-4005
April 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Mychael Nance was convicted of dealing in marijuana, a Class C felony. He
raises one issue for our review: whether police officers violated the Fourth Amendment
by searching his home without a warrant. Concluding exigent circumstances justified the
warrantless entry and search of Nance’s home, we affirm.
Facts and Procedural History
In January 2010, the Indianapolis Metropolitan Police Department received a call
from an alarm company requesting police assistance. An alarm was activated at a
residence, Nance’s home, and the home owner(s) was not responding. Officers
Schlesinger and Schmidt arrived at the home and could hear the alarm. They discovered
the front door wide open and the storm door unlocked. The officers announced their
presence several times, but they heard no response. The officers entered the home and
began searching for anyone located inside. On the first floor, Officer Schlesinger
observed a marijuana cigarette in an ashtray in the living room. The officers continued
into the basement, where they discovered numerous marijuana plants and growing
equipment. After hearing footsteps above, the officers ran upstairs and found Nance.
They arrested Nance and conducted a pat-down search. Officer Schlesinger testified that
he felt a squishy bag in Nance’s front pants pocket and it was immediately apparent to
him that it was marijuana. Officer Schlesinger removed the bag and confirmed it
contained marijuana.
Nance then confessed to the police officers he was responsible for the marijuana
grow and everything in his residence. The officers obtained a warrant and seized over
2 three hundred marijuana plants, lighting equipment, power supplies, fertilizer, scales,
loose marijuana, and mail addressed to Nance.
After initially entering into a plea agreement, Nance withdrew his guilty plea. He
thereafter moved to suppress evidence recovered from his residence. On April 7, 2011,
and June 9, 2011, the trial court heard evidence on Nance’s motion to suppress and the
charges against him. On July 14, 2011, the trial court entered a written order with
findings of fact and conclusions of law denying Nance’s motion to suppress evidence and
found Nance guilty of both possession of marijuana and dealing in marijuana. The
possession of marijuana charge merged and he was convicted of dealing in marijuana, a
Class C felony, and sentenced to two years in prison. Nance now appeals.
Discussion and Decision
“The standard of appellate review of a trial court’s ruling on a motion to suppress
is similar to other sufficiency issues. We determine whether substantial evidence of
probative value exists to support the trial court’s ruling. We do not reweigh the evidence
and consider conflicting evidence most favorably to the trial court’s ruling.” Litchfield v.
State, 824 N.E.2d 356, 358 (Ind. 2005) (citations omitted). 1 The Fourth Amendment of
the United States Constitution provides protection for individuals against unreasonable
searches and seizures. U.S. Const. amend. IV. The reasonableness of a search turns on
whether the subject of the search had an expectation of privacy and, if so, whether the
1 Ordinarily, where there has been a trial following a denial of a motion to suppress evidence, we would review the trial court’s decision to admit the evidence at trial. Here, because the motion to suppress and trial were held and decided simultaneously, we are reviewing the decision to deny Nance’s motion to suppress evidence. Nonetheless, if we reviewed the trial court’s decision to admit evidence from the search of Nance’s home our conclusion would not change. Because exigent circumstances existed justifying the warrantless search, the trial court’s admission of evidence resulting from the search is not a manifest abuse of discretion resulting in the denial of a fair trial. See Davis v. State, 749 N.E.2d 552, 556 (Ind. Ct. App. 2001) (“a trial court’s decision to admit evidence at trial will not be reversed absent a showing of a manifest abuse of the trial court’s discretion resulting in the denial of a fair trial.”) (citing Minnick v. State, 544 N.E.2d 471, 477 (Ind. 1989)), trans. denied. 3 expectation was objectively reasonable. Litchfield, 824 N.E.2d at 358. Generally, the
Fourth Amendment requires a lawful warrant to conduct a search or seizure, subject only
to a few specifically established and well-delineated exceptions. Bryant v. State, 660
N.E.2d 290, 300 (Ind. 1995) (citations omitted), cert. denied, 519 U.S. 926 (1996). One
such exception is when exigent circumstances compel quick action before a warrant can
be obtained. Id.
In Bryant, police officers responded to an alarm at Bryant’s residence. Id. at 294.
Upon arrival, the officers found a door open with “fresh pry marks on it” and they
entered and searched the home, discovering hundreds of marijuana plants. Id. Our
supreme court concluded “police may enter private property to protect that property when
they reasonably believe the premises have recently been or are being burglarized.” Id. at
301. Thus, our supreme court concluded the search of Bryant’s home was justified due to
exigent circumstances. Id.
Nance contends our supreme court incorrectly stated Fourth Amendment
jurisprudence by requiring that police have a reasonable belief that a residence was
recently or is being burglarized. Instead, he argues that, in addition to such exigent
circumstances, police also must have probable cause to believe the residence has been or
is being burglarized, and he asks us to alter our supreme court’s precedent accordingly.
For support, he cites Coolidge v. New Hampshire, 403 U.S. 443, 463 (1971) and Welsh
v. Wisconsin, 466 U.S. 740, 741 (1984). However, neither case addresses the application
of the Fourth Amendment to police officers searching a home based on a belief that it has
been or is being burglarized. Coolidge addresses the constitutionality of police searching
a defendant’s car without a warrant after the defendant has been arrested. 403 U.S. at 4 463. Welsh involves police officers entering a home without a warrant in order to arrest
a hit-and-run suspect who was identified at the scene. 466 U.S. at 743. Neither case
involves exigent circumstances such as exist in Bryant and here. Further, “[i]t is not our
role to reconsider or declare invalid decisions of the Indiana Supreme Court.” Cont’l Ins.
Co. v. Wheelabrator Techs., Inc., 960 N.E.2d 157, 162 (Ind. Ct. App. 2011). At most, we
would recommend such a change to our supreme court by our interpretation of existing
law. We decline Nance’s invitation to do so.
Alternatively, Nance argues the totality of the circumstances do not give rise to the
same exigent circumstances as Bryant because, unlike in that case, Officers Schlesinger
and Schmidt did not find fresh pry marks on Nance’s door. We disagree. A private
alarm company called the police department and informed them a home alarm was
activated and no one was responding to calls at the home. Upon arrival, officers found
the alarm still activated, the front door was wide open, and no one responded after they
announced their presence several times. Under the totality of the circumstances, the
officers could reasonably believe Nance’s home had recently been or was being
burglarized, and, thus, the exigent circumstances exception applies.
Conclusion
Based on the totality of the circumstances, police officers could have reasonably
believed Nance’s home had recently been or was in the process of being burglarized.
Thus, the exigent circumstances exception applies and the search of Nance’s home did
not violate the Fourth Amendment. We therefore affirm the trial court’s denial of
Nance’s motion to suppress evidence.
Affirmed. 5 BAILEY, J., and MATHIAS, J., concur.