FILED Sep 25 2023, 8:46 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Theodore E. Rokita Anderson, Indiana Attorney General Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert J. Plato, September 25, 2023 Appellant-Petitioner, Court of Appeals Case No. 23A-PC-452 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Respondent Andrew R. Hopper, Judge Trial Court Cause No. 48C03-2204-PC-4
Opinion by Judge Vaidik Judge Mathias concurs. Judge Pyle dissents with separate opinion.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 1 of 14 Vaidik, Judge.
Case Summary [1] The police obtained a search warrant for a property associated with Robert J.
Plato, Jr., that authorized them to search for and seize “paperwork relating to
title work for vehicles.” While executing the warrant, the police seized a
computer belonging to Plato. Plato then made threats against the police,
claiming his computer was improperly seized. He was charged with and
convicted of Level 6 felony intimidation for making threats against the police
for a prior lawful act—in this case, the seizure of his computer. Plato later
sought post-conviction relief, alleging his appellate counsel was ineffective for
not arguing on direct appeal that the seizure of his computer was unlawful
because it was not specified in the warrant. We find that the police had reason
to seize Plato’s computer but not to search the contents without a second, more
specific warrant. Because the police acted within the scope of the warrant when
they seized Plato’s computer, appellate counsel was not ineffective for not
challenging the seizure of Plato’s computer on direct appeal. Accordingly, we
affirm the post-conviction court.
Facts and Procedural History [2] In April 2018, the Madison County Drug Task Force was investigating Plato
for a robbery he had planned that involved forcing the owner of a car lot to sign
over titles to three cars in exchange for an unpaid drug debt. See Cause No.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 2 of 14 48C03-1805-F5-1294.1 The Drug Task Force obtained a search warrant for an
address in Anderson associated with Plato. The warrant authorized the Drug
Task Force to search for and seize “[w]eapons, ammunitions, and paperwork
relating to title work for vehicles.” Appellant’s P-C App. Vol. II p. 28; see also
Plato v. State, No. 21A-CR-1870, 2022 WL 570538 (Ind. Ct. App. Feb. 25,
2022). While executing the search warrant, Detective LeeAnn Dwiggins with
the Madison County Sheriff’s Department seized Plato’s computer. After the
seizure, Plato sent a letter to the Sheriff of Madison County, which provides in
part:
You need to resolve this issue with my computer right away. Dwiggins is nothing more than a common thief not a DTF [Drug Task Force] deputy and the very first time I see that thief, I will not treat her as a deputy of Madison County but as a thief, and will beat the breaks [sic] off that bi*ch. McDonalds, Walmart, don’t matter where I see her, she will be beat like a thief!
Plato, 2022 WL 570538, *1.
[3] The State charged Plato with Level 6 felony intimidation. The charging
information alleges that Plato “knowingly or intentionally communicate[d] a
threat to a law enforcement officer, to wit: LeeAnn Dwiggins, with the intent
that LeeAnn Dwiggins, be placed in fear of retaliation for a prior lawful act, to
wit: seizing Robert J. Plato’s computer pursuant to a lawful search warrant.”
1 Plato eventually pled guilty to Level 5 felony attempted robbery.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 3 of 14 Appellant’s P-C App. Vol. II p. 62; see also Ind. Code § 35-45-2-1(a)(2). The
State later added a habitual-offender charge.
[4] Plato represented himself at trial. The jury found Plato guilty of intimidation,
and he admitted being a habitual offender. The trial court sentenced Plato to
two years for intimidation, enhanced by six years for the habitual-offender
finding, for a total sentence of eight years.
[5] Plato, represented by counsel, appealed to this Court, making three arguments:
(1) the State made an improper comment during closing argument; (2) the trial
court abused its discretion in sentencing Plato; and (3) Plato’s sentence is
inappropriate. We found the first issue waived because Plato did not object to
the State’s comments during closing argument or argue fundamental error on
appeal. We also found that the trial court did not abuse its discretion in
sentencing Plato and that his sentence was not inappropriate.
[6] In April 2022, Plato, representing himself, filed a petition for post-conviction
relief. As relevant to this appeal, Plato alleged that his appellate counsel was
ineffective for not arguing on direct appeal that the seizure of his computer was
unlawful. Appellant’s P-C App. Vol. II p. 18. Following a hearing, the post-
conviction court denied relief.
[7] Plato, again represented by counsel, now appeals.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 4 of 14 Discussion and Decision [8] Plato appeals the denial of post-conviction relief. A defendant who petitions for
post-conviction relief must establish the grounds for relief by a preponderance
of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-
conviction court denies relief, and the petitioner appeals, the petitioner must
show the evidence leads unerringly and unmistakably to a conclusion opposite
that reached by the post-conviction court. Id. at 269.
[9] Plato contends his appellate counsel was ineffective. The standard for a claim of
ineffective assistance of appellate counsel is the same as that for trial counsel in
that the defendant must show that appellate counsel was deficient in his
performance and that the deficiency resulted in prejudice. Overstreet v. State, 877
N.E.2d 144, 165 (Ind. 2007). Our Supreme Court has recognized three types of
ineffective assistance of appellate counsel: (1) denial of access to appeal; (2)
failure to raise issues that should have been raised; and (3) failure to present
issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001). Plato’s claim
falls into the second category: failure to raise an issue. In evaluating such
claims, we must consider whether the unraised issue was (1) “significant and
obvious” from the face of the record and (2) “clearly stronger” than the raised
issues. Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006), trans. denied.
[10] Here, to convict Plato of Level 6 felony intimidation, the State was required to
prove that he knowingly or intentionally communicated a threat to Detective
Dwiggins with the intent that she be placed in fear of retaliation “for a prior
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 5 of 14 lawful act, to wit: seizing Robert J. Plato’s computer pursuant to a lawful search
warrant.” Plato argues his appellate counsel was ineffective for not arguing on
direct appeal that his computer was unlawfully seized because the warrant did
not specify that his computer could be searched or seized.
[11] The Fourth Amendment to the United States Constitution requires that a
warrant “particularly describ[e] the place to be searched, and the persons or
things to be seized.” Here, the search warrant authorized the Madison County
Drug Task Force to search for and seize “paperwork relating to title work for
vehicles.” When the search warrant was obtained, the police were investigating
Plato for a robbery he had planned that involved forcing the owner of a car lot
to sign over titles to three cars. Plato asserts that if the police wanted to seize his
computer, then they should have asked to do so when requesting the search
warrant.2 The State responds that Plato’s computer “was plainly covered by the
search warrant” because “it was reasonable for [Detective Dwiggins] to believe
that paperwork related to title work could have been recorded or stored digitally
on Plato’s computer.” Appellee’s Br. p. 17.
[12] Although neither party directs us to an on-point case, the Ninth Circuit
addressed a similar issue in United States v. Giberson, 527 F.3d 882, 887 (9th Cir.
2008). There, law enforcement obtained a warrant to search the defendant’s
house for “records” and “documents” related to his use of a false identification.
2 The search warrant incorporates by reference Detective Dwiggins’s sworn testimony. See Appellant’s P-C App. Vol. II p. 28. However, the record doesn’t contain her testimony.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 6 of 14 As here, the warrant did not explicitly authorize the search or seizure of any
computers. While executing the search warrant, law enforcement saw a
computer, which was connected to a printer. Next to the printer was what
appeared to be a sheet of fake identification cards that were not high quality and
looked as if they could have been printed on the adjacent printer. Law
enforcement seized the computer and obtained a second warrant to search it for
records relating to the production of fake identification cards. During the search
of the computer, law enforcement discovered evidence of child pornography,
and the defendant was charged in federal court with child-pornography-related
offenses. The defendant moved to suppress the evidence of child pornography,
arguing law enforcement exceeded the scope of the first warrant when it seized
his computer. The court denied the motion to suppress, and the defendant
entered a conditional guilty plea.
[13] On appeal, the defendant argued his computer was unlawfully seized because
the first search warrant did not specify that law enforcement could search or
seize a computer. The Ninth Circuit first noted that it had “not yet had
occasion to determine, in an opinion, whether computers are an exception to
the general principle that a warrant authorizing the seizure of particular
documents also authorizes the search of a container likely to contain those
documents.” Id. at 887. The defendant asserted that computers are different
than other containers (such as filing cabinets and briefcases) and therefore are
entitled to “heightened protection” and must be specified in the warrant. Id.
The Ninth Circuit rejected the defendant’s argument and concluded that
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 7 of 14 because documents related to the production of fake identification cards were
found in and around the defendant’s computer and were arguably created on
and printed from it, it was “reasonable for officers to believe that the items they
were authorized to seize would be found in the computer, and they acted within
the scope of the warrant when they secured the computer.” Id. at 888.
[14] A year after Giberson, the Ninth Circuit addressed a related issue in United States
v. Payton, 573 F.3d 859 (9th Cir. 2009). There, the police were investigating the
defendant for selling drugs and obtained a warrant to search his house for
“[s]ales ledgers showing narcotics transactions such as pay/owe sheets.” Id. at
863. Again, the warrant did not explicitly authorize the search or seizure of any
computers. While executing the search warrant, the police found no evidence of
drug sales but found a computer in the defendant’s bedroom with a screensaver
activated. An officer moved the mouse, which removed the screensaver, and
clicked open a file, disclosing an image that looked to be child pornography.
The defendant was charged in federal court with possession of child
pornography and moved to suppress the evidence, arguing the search of his
computer exceeded the scope of the warrant. The court denied the motion to
suppress, and the defendant entered a conditional guilty plea.
[15] On appeal, the Ninth Circuit distinguished the case from Giberson. The court
pointed out that in Giberson, law enforcement seized the computer and did not
search it until after obtaining a second warrant. In Payton, however, the officer
“searched first and seized afterwards.” Id. at 863. The court highlighted that
“[a] seizure of a computer to await a second warrant is nevertheless a Fourth
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 8 of 14 Amendment seizure, but it is far less intrusive than a search.” Id. The court
concluded that the police acted unreasonably in searching the defendant’s
computer without first obtaining another warrant.
[16] Here, Plato does not allege that his computer was searched, and thus we are not
tasked with addressing the reasonableness of any search. 3 Instead, Plato only
challenges the seizure of his computer. But we agree with the Ninth Circuit that
a seizure is far less intrusive than a search. Given that the Madison County
Drug Task Force’s investigation of Plato involved paperwork, it was reasonable
for the police to believe that paperwork (titles) may have been stored in Plato’s
computer. Hence, the police had reason to seize the computer but not to search
the contents without a second, more specific warrant. Because Detective
Dwiggins acted within the scope of the warrant when she seized Plato’s
computer, the seizure issue was not clearly stronger than the issues appellate
counsel raised on direct appeal. Accordingly, the post-conviction court did not
err in finding no ineffective assistance of appellate counsel.
[17] Affirmed.
Mathias, J., concurs.
Pyle, J., dissents with separate opinion.
3 Plato, who represented himself at trial, argued the following during closing argument: There was no evidence given, whatsoever, that [Detective Dwiggins] even accessed that laptop. To even see what was on it. She never once contacted me and ask[ed] me what the password was so that’s a pretty good indication that she never even accessed that laptop.” Trial Tr. Vol. II p. 20.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 9 of 14 Pyle, Judge, dissenting.
[18] I respectfully dissent from my colleagues’ opinion affirming the denial of Plato’s
petition for post-conviction relief. The majority ably concludes that Plato’s
appellate counsel was not ineffective for failing to challenge on direct appeal the
validity of the search warrant used to seize his laptop. Specifically, my
colleagues hold that the language contained in the search warrant justifying the
seizure of the laptop was sufficient to satisfy the particularity requirement of the
Fourth Amendment. However, I believe that the warrant violated the
particularity requirement. In addition, the deficiency in the search warrant was
obvious from the face of the record and it represented a stronger issue than
those raised by appellate counsel. See Reed v. State, 856 N.E.2d 1189, 1195 (Ind.
2006) (holding appellate counsel ineffective when unraised issue was significant
and obvious, stronger than those raised on direct appeal, and precedent was
available supporting the unraised issue). As a result, I believe that appellate
counsel’s performance fell below prevailing professional norms because the
State’s reliance on a lawful search warrant was an essential element of the
charged crime. Further, if appellate counsel had cited relevant authority,
appellant’s counsel would have likely been successful on direct appeal.
Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984), reh’g denied), reh’g denied, cert. denied.
[19] In this case, the State alleged that, on or about April 14, 2019, Plato committed
intimidation, a Level 6 felony. At that time, the State was required to prove
that Plato communicated a threat to Detective Dwiggins, a law enforcement
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 10 of 14 officer, with the intent that she be placed in fear of retaliation for a prior lawful
act. INDIANA CODE § 35-45-2-1(a)(2) and (b)(1)(B)(i). The prior lawful act that
the State relied upon was “seizing [Plato’s] computer pursuant to a lawful search
warrant.” (App. Vol. 2 at 29) (emphasis added). At his trial, Plato challenged
the search and seizure of his laptop computer pursuant to the search warrant,
preserving the issue for appeal. (App. Vol. 2 at 234). In addition, the trial court
instructed the jury that the State had to prove “each of these elements beyond a
reasonable doubt.” (Prior Case Tr. Vol. 2 at 203). On these facts alone, the
record clearly shows that proving Detective Dwiggins was acting pursuant to a
lawfully issued search warrant was critical to the State’s case. Instead of raising
an issue challenging the search warrant or the sufficiency of the evidence,
appellate counsel challenged the State’s closing argument and raised sentencing
issues.
[20] The Fourth Amendment of our Federal Constitution provides that “no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. CONST. amend. IV. (emphasis added). “The Founding
generation crafted the Fourth Amendment as a ‘response to the reviled general
warrant and writs of assistance of the colonial era, which allowed British
officers to rummage through homes in an unrestrained search for evidence of
criminal activity.’” Carpenter v. U.S., 138 S. Ct. 2206, 2213 (2018) (quoting Riley
v. California, 134 S. Ct. 2473, 2492 (2014)) (cleaned up). “The problem posed
by the general warrant is not that of intrusion per se, but of a general,
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 11 of 14 exploratory rummaging in a person’s belongings . . . .” Warren v. State, 760
N.E.2d 608, 610 (Ind. 2002) (cleaned up). In other words, a warrant that does
not particularly describe the items to be seized gives a law enforcement officer
too much discretion. “This requirement makes general searches . . . impossible
and prevents the seizure of one thing under a warrant describing another. As to
what is to be taken, nothing is left to the discretion of the officer executing the
warrant.” Id. (cleaned up) (emphasis added). “The uniformly applied rule is
that a search conducted pursuant to a warrant that fails to conform to the
particularity requirement of the Fourth Amendment is unconstitutional.” Groh
v. Ramirez, 124 S. Ct. 1264, 1291 (2004) (citations omitted) (holding that the
search warrant must particularly describe the items to be seized independently
of the affidavit or application supporting the warrant). However, the
particularity requirement is not draconian; it does not require an exact
description of the property to be searched for and seized. State v. Foy, 862
N.E.2d 1219, 1227 (Ind. Ct. App. 2007), trans. denied. “In practice, courts have
. . . demanded that the executing officers be able to identify the things to be
seized with reasonable certainty and that the warrant description be as
particular as circumstances permit.” Id. (cleaned up).
[21] In this case, the relevant portion of the search warrant used to seize Plato’s
laptop computer contained the following description: “paperwork relating to
title work for vehicles.” (App. Vol. 2 at 28) (emphasis added). There is no
mention of a computer. Today, it is difficult to make the argument that the
term “paperwork” is sufficiently specific so as to lead a reasonable person to
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 12 of 14 believe that it also means “computers.” It is insufficient to posit that, because
computers might contain scanned copies of paperwork relating to vehicle titles,
the term “paperwork” adequately describes computers. My esteemed
colleagues conclude that this approach is sufficient. They believe the officers
had the authority to seize the laptop but could not search it without obtaining a
second warrant. In my view, my colleagues’ Solomonic approach is
confounding. The officers either had the lawful authority to seize and search
the computer or they did not.
[22] My colleagues’ approach frustrates the very purpose of the particularity
requirement: assuring “the individual whose property is searched or seized of
the lawful authority of the executing officer, his need to search, and the limits of
his power to search.” Groh, 124 S. Ct. at 1292 (emphasis added). The question
is whether the term “paperwork” describes Plato’s computer with as much
reasonable certainty and particularity as possible under the circumstances. I
believe that the search warrant in this case gave law enforcement too much
discretion. The term “paperwork” neither described Plato’s laptop with
reasonable certainty nor with as much particularity as possible under the
circumstances. If the officers had probable cause to believe that a search for
evidence of a robbery scheme involving vehicle titles would be found on Plato’s
laptop, all they had to do was request the judicial authority to include the term
“computers” on the search warrant.
[23] Because appellate counsel did not raise an issue challenging the sufficiency of
the evidence, regarding the particularity of the search warrant, I believe
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 13 of 14 appellate counsel’s performance was deficient and that Plato was prejudiced.
This issue was significant and obvious from the face of the record and was
stronger than the issues raised on direct appeal, likely resulting in reversal on
appeal. As a result, I would reverse the post-conviction court’s denial of post-
conviction relief.
Court of Appeals of Indiana | Opinion 23A-PC-452 | September 25, 2023 Page 14 of 14