N.W. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 30, 2015
• Docket: 49A02-1504-JV-201
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Oct 30 2015, 10:04 am 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 Frederick Vaiana Gregory F. Zoeller Voyles Zahn & Paul Attorney General of Indiana Indianapolis, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.W., October 30, 2015 Appellant-Respondent, Court of Appeals Case No. 49A02-1504-JV-201 v. Appeal from the Marion Superior Court, Juvenile Division State of Indiana, The Honorable Gary Chavers, Appellee-Petitioner Magistrate Trial Court Cause No. 49D09-1501-JD-144

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 1 of 11 Case Summary and Issues [1] N.W. appeals his adjudication as a delinquent child for what would be, if

committed by an adult, Class A misdemeanor dangerous possession of a

firearm and Class B misdemeanor possession of marijuana. N.W. raises the

following restated issues for our review: 1) whether the juvenile court abused its

discretion by admitting evidence obtained during a warrantless search; and 2)

whether the State presented sufficient evidence to support the juvenile court’s

findings. Concluding the juvenile court did not abuse its discretion and the

evidence was sufficient to prove N.W. committed dangerous possession of a

firearm and possession of marijuana, we affirm.

Facts and Procedural History [2] On January 22, 2015, probation officer Tristen Hulse received notice to conduct

a probationary search at N.W.’s home in Marion County. At that time, N.W.

was on juvenile formal probation for true findings of battery resulting in bodily

injury and possession of marijuana. N.W.’s probation officer, Markita Grimes,

had received information that N.W. was in possession of a handgun. Hulse

went to N.W.’s home the same day, accompanied by probation officers Nathan

Dorsch and Steve Hoffman.

[3] When Hulse knocked on the door, N.W.’s sister answered. Hulse asked if

N.W. was home; he was not. As Hulse was explaining the purpose of the visit,

N.W.’s mother came to the door. N.W.’s mother allowed the officers to enter

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 2 of 11 the home and told her daughter to take the officers to N.W.’s bedroom. Hulse

asked N.W.’s mother if N.W. shared the bedroom with other family members;

she said he did not.

[4] Dorsch and Hoffman searched N.W.’s bedroom while Hulse spoke with

N.W.’s mother. The search revealed a handgun, ammunition, and an

ammunition magazine in the ceiling, as well as digital scales, baggies, and what

appeared to be marijuana and “spice” under N.W.’s bed. 1 Forensic testing later

confirmed the vegetation was indeed marijuana and “spice.”

[5] The State filed a delinquency petition the next day, alleging N.W. committed

dangerous possession of a firearm, a Class A misdemeanor if committed by an

adult, and possession of marijuana, a Class B misdemeanor if committed by an

adult. N.W. filed a motion to suppress the evidence seized from his bedroom,

which the juvenile court denied. Following a denial hearing, the juvenile court

found the allegations true and adjudicated N.W. a delinquent child. The

juvenile court placed N.W. on formal probation with a suspended commitment

to the Indiana Department of Correction. N.W. now appeals.

1 “Spice” refers to certain synthetic forms of marijuana. See Elvers v. State, 22 N.E.3d 824, 828 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 3 of 11 Discussion and Decision I. Admission of Evidence A. Standard of Review [6] N.W. appeals the admission of evidence seized from his bedroom. We review

the juvenile court’s ruling on admissibility for an abuse of discretion and reverse

only if the ruling is clearly against the logic and effect of the facts and

circumstances and the error affects the juvenile’s substantial rights. Carpenter v.

State, 18 N.E.3d 998, 1001 (Ind. 2014). In reviewing the juvenile court’s

decision, we do not reweigh the evidence, and we consider conflicting evidence

most favorably to the ruling. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009).

We defer to the juvenile court’s factual determinations unless clearly erroneous,

but review the constitutionality of the search de novo. Id.

B. Probationary Search of N.W.’s Bedroom [7] N.W. contends the warrantless search of his bedroom violated the Fourth

Amendment’s prohibition against unreasonable searches and seizures.2 A

probationer’s home, like anyone else’s, is protected by the Fourth Amendment,

but the United States Supreme Court has recognized the operation of a

probation system “presents ‘special needs’ beyond normal law enforcement that

2 N.W. further argues the search violated Article 1, Section 11 of the Indiana Constitution, but presents no authority or independent analysis supporting a separate standard under the state constitution. As a result, any state constitutional claim is waived. Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001).

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 4 of 11 may justify departures from the usual warrant and probable-cause

requirements.” Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). Probationers

therefore enjoy only “conditional liberty properly dependent on observance of

special [probation] restrictions,” which are meant to assure probation serves as

a period of genuine rehabilitation. Id. at 874-75 (alteration in original) (quoting

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).

[8] In State v. Schlechty, 926 N.E.2d 1, 2 (Ind. 2010), cert. denied, 562 U.S. 1150

(2011), our supreme court concluded “a warrantless search of a probationer’s

property that is conducted reasonably, supported by a probation search term

and reasonable suspicion of criminal activity, complies with the dictates of the

Fourth Amendment.” N.W. makes no argument that the search itself was

conducted unreasonably, and as a condition of probation, he agreed to be

“subject to search and seizure by a probation officer or law enforcement officer

who has knowledge of [his] probationary status and who has a reasonable basis

for such action.” Appellant’s Appendix at 21.3 On appeal, N.W. argues the

search was not supported by a reasonable suspicion of criminal activity. 4

3 During the denial hearing, the juvenile court took judicial notice of N.W.’s probation conditions. Although N.W.’s probation conditions were not admitted into evidence, the relevant provision appears in the probable cause affidavit, pre-dispositional report, and probation conditions agreed to in the present case, which modified the conditions already in place at the time of the search. 4 The State contends the search term included in N.W.’s probation conditions requiring a “reasonable basis” for a search “obviated the need for reasonable suspicion before a probationary search could be conducted.” Brief of Appellee at 8-9. We disagree. Although a probationer “may, by a valid advance consent or search term in the conditions of release, authorize a warrantless search of his or her premises without reasonable suspicion,” the search term must be “clearly expressed” and the probationer “unambiguously informed.” State v. Vanderkolk, 32 N.E.3d 775, 775, 778 (Ind. 2015) (quoting United States v. Knights, 534 U.S. 112, 119

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 5 of 11 [9] While “reasonable suspicion can arise from information that is less reliable than

that required to show probable cause,” Alabama v. White, 496 U.S. 325, 330

(1990), the Fourth Amendment still requires “at least a minimal level of

objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The

officer must have “a reasonable, articulable suspicion that criminal activity is

afoot.” Id. An “inchoate and unparticularized suspicion or ‘hunch’” is

insufficient. Id. at 124 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

[10] Here, Hulse conducted a probationary search at N.W.’s home because Grimes

had received information that N.W. was in possession of a handgun. The

“source” of the information was a concerned parent, whose son had disclosed

N.W.’s possession of the handgun. Transcript 10-11. The parent told another

probation officer, who relayed the information to Grimes. Upon receiving the

tip, Grimes spoke with the parent directly. The parent did not personally

observe N.W. with a handgun, but Grimes “had dealt with her in the past,” and

“any information that she had [provided] in the past was always found to be

true.” Id. at 12.

(2001)). It is unclear what exactly “ha[ving] a reasonable basis” for a search means, Appellant’s App. at 21, but this language more closely resembles a requirement of reasonable suspicion than the general requirement of reasonableness under the Fourth Amendment. See Schlechty, 926 N.E.2d at 6-7 (distinguishing “the ‘reasonableness’ of the search under the Fourth Amendment on the one hand, versus ‘reasonable suspicion’ to support the search on the other”). Because N.W.’s probation conditions did not clearly express or unambiguously inform N.W. that he would be subject to entirely suspicionless searches, reasonable suspicion was required.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 6 of 11 [11] N.W. argues the probation officers lacked reasonable suspicion because the

information justifying the search was “unreliable” and “based upon multiple

levels of hearsay from numerous unidentified sources.” Appellant’s Brief at 4.

We disagree. Under the imputed knowledge doctrine,

an arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation.

State v. Gray, 997 N.E.2d 1147, 1153 (Ind. Ct. App. 2013) (quoting U.S. v. Colon,

250 F.3d 130, 135-36 (2d Cir. 2001)), trans. denied. The probation officers who

conducted the search were therefore imputed with the knowledge of the

probation officer who spoke with the parent directly.

[12] Furthermore, it is well-established that a tip from a “concerned citizen” may

give rise to reasonable suspicion. Russell v. State, 993 N.E.2d 1176, 1180 (Ind.

Ct. App. 2013). If “sufficiently reliable” based on the underlying facts and

circumstances, id., even an unidentified concerned citizen tip may establish

reasonable suspicion. Bogetti v. State, 723 N.E.2d 876, 879-80 (Ind. Ct. App.

2000). And our supreme court has recognized a concerned citizen tip is

generally more reliable than a tip from a criminal informant or anonymous

tipster. State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011) (“These individuals

generally come forward with information out of a spirit of good citizenship and

a desire to help law enforcement.”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 7 of 11 [13] Likewise, hearsay may give rise to reasonable suspicion. 4 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 9.5(b) (5th ed.); see also

State v. Bishop, 203 P.3d 1203, 1212-13 (Idaho 2009) (collecting cases) (“[T]he

fact that a tip is based on hearsay information is only a factor to consider in

determining whether a [search] was justified—it is not an absolute bar to a

finding of reasonable suspicion.”).

[14] Although the parent who provided the information was not identified at the

denial hearing, she was not anonymous. Grimes knew the parent, considered

her reliable, and spoke with her personally after receiving the information about

N.W. Under these circumstances, the concerned parent’s tip demonstrated

sufficient reliability to establish reasonable suspicion to believe N.W. was

engaging in criminal activity while on probation.

[15] In sum, the probationary search “complie[d] with the dictates of the Fourth

Amendment” because it was “supported by a probation search term and

reasonable suspicion of criminal activity.” Schlechty, 926 N.E.2d at 2. We

therefore conclude the trial court did not abuse its discretion by admitting the

evidence seized from N.W.’s bedroom.

II. Sufficiency of Evidence A. Standard of Review [16] N.W. also argues the State presented insufficient evidence to support the

juvenile court’s findings.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 8 of 11 In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess the credibility of the witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the [judgment], and we will affirm the [adjudication] if there is probative evidence from which a reasonable [factfinder] could have found the defendant guilty beyond a reasonable doubt.

K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013) (alterations in original) (citations

and internal quotation marks omitted).

B. Dangerous Possession of a Firearm and Possession of Marijuana [17] The juvenile court entered true findings for dangerous possession of a firearm, a

Class A misdemeanor if committed by an adult,5 and possession of marijuana, a

Class B misdemeanor if committed by an adult.6 N.W. argues the evidence was

insufficient to support these findings because he was not home at the time of the

search and there was “no evidence” connecting him to the handgun or the

marijuana. Appellant’s Br. at 5.7 Yet, both items were discovered in N.W.’s

bedroom, which he alone occupied. As our supreme court recently explained,

5 Indiana Code section 35-47-10-5(a) provides in relevant part: “A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in [Ind. Code § 35-47-10-1] commits dangerous possession of a firearm . . . .” None of the exemptions contained in Indiana Code section 35–47–10–1 apply to the facts of this case. 6 Indiana Code section 35-48-4-11(a)(1) provides in relevant part: “A person who . . . knowingly or intentionally possesses (pure or adulterated) marijuana . . . commits possession of marijuana . . . .” 7 N.W. contends the State was required to show a “nexus” between himself and the items seized. Appellant’s Br. at 12. But N.W. relies on cases involving criminal gang activity, an offense that has been construed to require the State to prove a nexus between a defendant’s alleged gang membership and the

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 9 of 11 [O]ur jurisprudence on the issue of “possession” is rather straightforward: it can be either actual or constructive. Actual possession occurs when a person has direct physical control over the item. When the State cannot show actual possession, it may nonetheless prevail on proof of constructive possession. A person constructively possesses [an item] when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.

Sargent v. State, 27 N.E.3d 729, 732-33 (Ind. 2015) (alteration in original)

(citations and internal quotation marks omitted).

[18] In a constructive possession case such as this, “where the accused has exclusive

possession of the premises on which the contraband is found, an inference is

permitted that he or she knew of the presence of the contraband and was

capable of controlling it.” Harrison v. State, 32 N.E.3d 240, 248 (Ind. Ct. App.

2015), trans. denied. We therefore conclude the State presented sufficient

evidence to support the juvenile court’s finding that N.W. was in constructive

possession of the handgun and the marijuana found in his bedroom. See Young

v. State, 478 N.E.2d 50, 51 (Ind. 1985) (concluding there was sufficient evidence

of constructive possession of cocaine in the defendant’s bedroom where the

charged crime. See e.g., Robles v. State, 758 N.E.2d 581, 584 & n.5 (Ind. Ct. App. 2001) (citing Ind. Code § 35- 45-9-3), trans. denied. With regard to the criminal gang activity statute, the specific intent requirement is necessary to insure the statute “does not interfere with one’s right to freedom of association and is not unconstitutionally vague or overbroad.” Id. at 584 n.5. There is no such requirement for either dangerous possession of a firearm or possession of marijuana, as neither statute presents the same constitutional concerns.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 10 of 11 defendant shared a house with others but “exercised private dominion over her

own bedroom”).

Conclusion [19] The juvenile court did not abuse its discretion by admitting evidence, and the

State presented sufficient evidence to support the juvenile court’s findings.

N.W.’s adjudication as a delinquent child is therefore affirmed.

[20] Affirmed.

Vaidik, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-JV-201 | October 30, 2015 Page 11 of 11