Turner v. State

878 N.E.2d 286, 2007 Ind. App. LEXIS 2764, 2007 WL 4394874
Indiana Court of Appeals·Decided December 18, 2007·No. 79A04-0704-CR-210·Published·Cited by 18 cases

Opinion

OPINION

BAKER, Chief Judge.

This case is before us again following a remand to the trial court after we determined that appellant-defendant Franklin D. Turner should have been permitted to withdraw his guilty plea. Following remand, Turner was tried and convicted of Dealing in Cocaine, 1 a class A felony, Pos *289 session of Cocaine, 2 a class A felony, Possession of Marijuana, 3 a class A misdemeanor, Possession of Paraphernalia, 4 a class A misdemeanor, Maintaining a Common Nuisance, 5 a class D felony, and Possession of a Schedule IV Controlled Substance, 6 a class C felony.

In this appeal, Turner argues that his convictions must be reversed because: (1) the trial court failed to follow this court’s instructions on remand in conducting a suppression hearing; (2) the police officers improperly searched Turner’s trash; (3) cocaine was improperly admitted into evidence at trial; (4) the evidence was insufficient to support the conviction for dealing in cocaine; 7 and (5) he was improperly sentenced. Concluding that Turner’s trash was properly seized in accordance with the standard announced by our Supreme Court in Litchfield v. State, 824 N.E.2d 356 (Ind.2005), and finding no other error, we affirm the judgment of the trial court.

FACTS

The facts, as reported in Turner’s prior appeal, are as follows:

On August 21, 2003, a police officer in Tippecanoe County filed an affidavit for a search warrant, in which he described possible drug activity at 676 Harrison Circle in Dayton. The officer stated that the Dayton Town Marshall, (“Town Marshall”), had contacted him and advised him that the Town Marshall had received some complaints that there might be drug dealing at that residence. Based on that information, the officer and a detective with the Lafayette Police Department went to the residence and noticed that trash bags had been left near the curb for pickup. The officers retrieved four white trash bags, examined their contents, and discovered several marijuana cigarettes and stems that appeared to be from marijuana plants.
One week later, the officers returned and found more trash bags at the curb. Once again, they examined the contents of the bags and found more stems from marijuana plants. Based on what they had discovered in the trash bags, the officers sought a search warrant for the residence. The trial court granted the warrant and officers from the Lafayette Police Department executed it. Once inside the residence, they discovered Turner. Turner acknowledged that he lived there and stated that “there was no more marijuana as it had all been used.” Appellant’s App. at 12. In the garage, the officers discovered cocaine.

Turner v. State, 843 N.E.2d 937, 939 (Ind.Ct.App.2006).

Turner was subsequently arrested and charged with the above offenses. On August 9, 2004, Turner pleaded guilty to class A felony dealing in cocaine in exchange for a dismissal of the remaining charges. Before Turner was sentenced, our Supreme Court issued its opinion in Litchfield on March 24, 2005, holding that police officers must have reasonable suspicion of criminal activity before they can seize and search an individual’s trash.

In response to Litchfield, Turner filed a motion to withdraw his guilty plea so that he could challenge the legality of the trash *290 search. The trial court denied Turner’s motion and subsequently sentenced Turner to twenty-five years of incarceration with five years suspended.

Turner appealed, and this court determined, among other things, that he should have been permitted to withdraw his guilty plea

[bjeeause [Turner] has demonstrated that withdrawal of his plea is necessary to correct a manifest injustice, namely, that he should have a fair opportunity to vindicate his Article I, Section 11 constitutional right against unreasonable search and seizure as enunciated in Litchfield.

Id. at 944. 8 This court instructed the trial court on remand to conduct

a full hearing on the merits of Turner’s motion to suppress. On remand, the question presented is whether the affidavit in support of the search warrant demonstrated that before the officers searched Turner’s trash, they had an “articulable individualized suspicion” that Turner was or had engaged in illegal activity.

Id. at 945. We further cautioned “that the [trial] court may consider only the evidence presented when the warrant was issued and may not rely on post hac justifications for the affidavit.” Id.

Following this court’s opinion, Turner argued to the trial court that these instructions precluded the court from hearing any evidence on the suppression motion and restricted the court to an examination of the four corners of the probable cause affidavit to determine whether reasonable suspicion for the search existed. The trial court rejected that argument, observing that the State could not have anticipated the need to include any pre-trash search information in the affidavit in light of the current state of the law.

On January 3, 2007, the trial court held a hearing on Turner’s motion to suppress. The State presented evidence from Officer Jeffrey Dunscomb, the Dayton town mar-shall, as to what he heard and observed up to the time that he passed the information on to the Drug Task Force officers. The trial court denied Turner’s motion to suppress, finding that the police officers had reasonable suspicion to conduct the trash search. The trial court also determined that this determination was not the result of a “post hoc justification” because it was based only on the information that was actually known to the officers at the time the warrant was sought. Appellant’s App. p. 131-38.

Prior to trial, the State received permission to preserve the testimony of forensic chemist Kimberly Ivanyo through a videotaped deposition because she would be unavailable at trial. Ivanyo testified in her deposition about the weight of the cocaine she had tested. Although the State had not first elicited any information from Iva-nyo about the calibration of the scale that she used to weigh the cocaine, Turner made no objection.

When the deposition was played for the jury, Turner objected to Ivanyo’s testimony regarding the weight of the substances. Turner argued that the evidence was inadmissible because it was the State’s burden to show that the scale had been properly calibrated. The trial court overruled the objection and allowed Ivanyo’s testimony regarding the weight of the cocaine that had been seized.

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Turner v. State, 878 N.E.2d 286, 2007 Ind. App. LEXIS 2764, 2007 WL 4394874 (Ind. Ct. App. 2007).

878 N.E.2d 286 (Turner v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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