Cory Smith v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 06 2019, 9:27 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kyle E. Cray Curtis T. Hill, Jr.
Bennet Boehning & Clary, LLP Attorney General of Indiana
Lafayette, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cory Smith, December 6, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-407
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1710-F2-19
Brown, Judge.
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[1] Cory Smith appeals his convictions for dealing methamphetamine, unlawful
possession of a syringe, possession of paraphernalia, and maintaining a
common nuisance and the finding that he is an habitual offender. We affirm.
Facts and Procedural History
[2] Smith signed several instruments in connection with his placement on home
detention through Tippecanoe County Community Corrections including a
document dated July 18, 2017, which provided in part:
COMMUNITY CORRECTION POLICY CONCERNING
SEARCH AND SEIZURES
Waiver of Fourth Amendment Rights
CAUTION: The following document is legally binding. Read and
understand it before signing.
In consideration of the opportunity to participate in a Community
Corrections program rather than serve my sentence through the
Department of Correction or other secure or more restrictive
environment, I acknowledge and agree that I hereby waive my rights
concerning searches and seizures under the Fourth and Fourteenth
Amendments of the United States Constitution and under Article 1, §
11 of the Indiana Constitution. Specifically, I hereby consent to allow
employees of Community Correction or law enforcement officers to
search my person or property without a warrant and without probable
cause.
I agree that such a search is permissible during day or night and
includes, without limitation, entrance into or searches of my residence,
my telephone, any computing device of mine, secure containers and
vehicles. Such searches may take place in my presence or outside of my
presence and with or without prior notice to me.
*****
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I further understand and agree that any evidence found as a result of
such a search of my person or property may be used as evidence against
me in a disciplinary hearing, court of law, or otherwise.
State’s Exhibit 1. Smith signed another instrument dated August 25, 2017,
providing in part:
Consent to Search
*****
Agreement: The undersigned owner(s)/leaseholder(s) hereby authorize
law enforcement officers of the Tippecanoe County Sheriff’s
Department, Lafayette Police Department, West Lafayette Police
Department, Purdue University Police Department, Tippecanoe
County Probation Department, and Tippecanoe County Community
Corrections to search my house, apartment, premises, business, vehicle
and/or any contents therein.
The undersigned has been advised that he or she is not required to
execute this consent and that any property found at such house,
apartment, premises, business, or vehicle may be used against me in a
criminal prosecution. Being so advised, I hereby waive any and all
objections that may be made by me to said search. I further declare that
this waiver is freely and voluntarily given of my own free will and
accord and is a standing waiver so long as Participant is an active
program participant of Tippecanoe County Community Corrections.
Id.
[3] On October 14, 2017, Adam Sowders, a community corrections surveillance
officer, was notified by home detention coordinator Josh Cole “that a WeTip
information come [sic] in,” and Cole requested that Sowders search Smith’s
residence. Transcript Volume 2 at 120. Officer Sowders was made aware that
there was possible drug use or drugs at the residence. He reviewed Smith’s file
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and confirmed that it contained Smith’s signed consent to search. Wearing his
uniform, Officer Sowders went to Smith’s residence with two other community
corrections officers, including Officer Clint Delp, who made initial contact.
Officer Sowders asked if there was anything in the residence that was going to
get Smith in trouble with the home detention rules and conditions. Smith stood
up and walked toward a bedroom, and Officer Sowders followed him. Smith
started to reach for a drawer of a nightstand, Officer Sowders stopped him for
safety considerations and asked what he was reaching for in the drawer, and
Smith stated “a spoon.” Id. at 126. Smith indicated that he had used illegal
drugs a few hours earlier, that he had used a needle, and that the needle was in
his pocket or somewhere in the residence.
[4] After Smith’s admissions, Officer Sowders placed him in restraints and found a
spoon with residue on it in the nightstand drawer. Officer Sowders checked the
bedroom and closets and found a backpack containing drug paraphernalia
which included “[a] whizzinator touch, baggies of illegal drugs and syringes.”
Id. at 144. Given the amount of paraphernalia, Sowders contacted the
Lafayette Police Department, and Lafayette Police Officer Brian Landis and
another officer responded to the scene. Police discovered plastic baggies, a
digital scale, syringes, rubber bands or tourniquets, cooking tins, cotton balls
with residue on them, and a significant amount of methamphetamine in the
residence and $666 in cash on Smith. As he walked Smith out of the building,
Officer Landis commented “it was fairly shocking, having done this for nearly
sixteen years to be on a pretty significant drug seizure with somebody who was
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currently on a house arrest program where they had their fourth amendment
waiver and then it was fairly surprising to me that he had put himself in that
situation,” and Smith stated he “had no choice” after he recently lost his job
and had to pay rent and this was “the easiest way to do it.” Id. at 88-89, 157.
[5] The State charged Smith with: Count I, dealing in methamphetamine as a level
2 felony; Count II, possession of methamphetamine as a level 3 felony; Count
III, possession of a narcotic drug as a level 5 felony; Count IV, unlawful
possession of a syringe as a level 6 felony; Count V, possession of paraphernalia
as a class C misdemeanor; Count VI, maintaining a common nuisance as a
level 6 felony; and Count VII, conspiracy to deal in methamphetamine as a
level 2 felony. It also alleged Smith was an habitual offender. Smith filed a
motion to suppress statements he made to Officer Landis. The court granted
the motion except as to Smith’s voluntary statement that he “had no choice; he
recently quit his job; he needed money; and this was the easiest way for him to
make money,” and it found this statement was not made as a result of a
custodial interrogation. Appellant’s Appendix Volume 2 at 96. Smith also filed
a motion to suppress the evidence obtained during the search. In denying the
motion, the court noted that it had watched the recording from Officer
Sowders’s body camera and stated “I remember being impressed with Mr.
Sowders[’s] demeanor. Just the way that he handled himself the entire time,”
“[t]here are times when there is just this law enforcement presence that’s so
abrasive and it almost gives you the impression, hey they’re going to come in
and do whatever they want anyhow,” and “[h]e was polite, he was respectful,
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he—you know he said hey anything going on here, that’s going to get you in
trouble and you know my take is that you had an option at that point.”
Transcript Volume 2 at 139. The court found “I think that once the state had
evidence of the spoon, the drug paraphernalia, the residue on the spoon,
looking for a needle . . . I think it goes well beyond reasonable suspicion.” Id.
at 140. Following a bench trial, the court entered convictions on Counts I, IV,
V and VI and found Smith was an habitual offender. It sentenced him to ten
years on Count I, one year on Count IV, sixty days on Count V, and one year
on Count VI, all to be served concurrently, and enhanced the sentence under
Count I by six years for being an habitual offender.
Discussion
I.
[6] Smith claims the trial court improperly admitted evidence obtained from the
search of his residence and argues the search was unlawful under the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution. We review a trial court’s decision to admit or exclude
evidence using an abuse of discretion standard. Collins v. State, 966 N.E.2d 96,
104 (Ind. Ct. App. 2012). Where the issue concerns the constitutionality of a
search or seizure, the ultimate determination is a question of law to be reviewed
de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[7] Smith was on home detention through community corrections when his
residence was searched. In State v. Vanderkolk, the Indiana Supreme Court
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observed that home detention may be imposed as either a condition of
probation or as an alternative placement that is part of an offender’s community
corrections program, and that both probation and community corrections
programs serve as alternatives to commitment to the Department of Correction
and both are made at the sole discretion of the trial court. 32 N.E.3d 775, 777
(Ind. 2015). The Court noted that, in Samson v. California, 547 U.S. 843, 126 S.
Ct. 2193 (2006), the United States Supreme Court permitted a suspicionless
search where a parolee had agreed to a parole search condition authorizing
searches “with or without a search warrant and with or without cause.”
Vanderkolk, 32 N.E.3d at 777 (citing Samson, 547 U.S. at 846, 126 S. Ct. at
2196). The Vanderkolk Court held:
Indiana probationers and community corrections participants, who
have consented or been clearly informed that the conditions of their
probation or community corrections program unambiguously
authorize warrantless and suspicionless searches, may thereafter be
subject to such searches during the period of their probationary or
community corrections status. . . .
A probationer or community corrections participant may, pursuant
to a valid search condition or advance consent, authorize a
warrantless premises search without reasonable suspicion.
Id. at 779-780. The Court did not specify what a valid search condition must
look like under the Fourth Amendment or the Indiana Constitution, but merely
stated that probationers or community corrections participants must be
“unambiguously informed of a clearly expressed search condition in the
conditions of release to probation or community corrections.” Id. at 779 (Ind.
2015). See Hodges v. State, 54 N.E.3d 1055, 1060 (Ind. Ct. App. 2016)
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(observing the Vanderkolk Court did not specify what a valid search condition
must look like under the Fourth Amendment or the Indiana Constitution). 1
[8] Here, Smith signed a Waiver of Fourth Amendment Rights consenting to a
search of his person and property by community corrections or law enforcement
without a warrant and without probable cause. Moreover, he executed a
document titled “Consent to Search” from Tippecanoe County Community
Corrections in which he specifically provided that he “authorize[d] law
enforcement officers of the . . . Lafayette Police Department . . . and
Tippecanoe County Community Corrections to search [his] house, apartment,
[and] premises . . . and/or any contents therein” and that he “waive[d] any and
all objections that may be made by me to said search.” State’s Exhibit 1
(emphasis added). In light of Smith’s consent and Vanderkolk, we conclude the
search did not violate the Fourth Amendment or Article 1, Section 11. See
Hodges, 54 N.E.3d at 1061 (search pursuant to consent providing “[y]ou waive
your right against search and seizure” and law enforcement may “search your
person, residence” was sufficient to constitute a clearly expressed search
condition). 2
1
In Hodges, this Court noted: “The Vanderkolk court did imply that the waiver stating ‘I agree and specifically
waive any and all rights as to search and seizure under the laws and constitutions of both the United States
and the State of Indiana’ would have been valid had it not been ‘fatally compromised’ by the waiver’s closing
statement conditioning any such searches upon the existence of probable cause. 32 N.E.3d at 778.” Hodges,
54 N.E.3d at 1060 n.6.
2
In Hodges, we held that, while we generally interpret and apply Article 1, Section 11 independently from the
Fourth Amendment and consider the factors in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), in light of
Vanderkolk’s expansive endorsement of warrantless and suspicionless searches, a separate Litchfield analysis is
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[9] Smith further claims that his statements to Officer Sowders should have been
suppressed because he was in custody and had not been advised of his Miranda
rights and that his statement to Officer Landis admitted into evidence was not
voluntary. The Fifth Amendment provides that no person shall be compelled in
any criminal case to be a witness against himself. Brabandt v. State, 797 N.E.2d
855, 861 (Ind. Ct. App. 2003). In order to protect the privilege against self-
incrimination, the United States Supreme Court held that incriminating
statements made while a defendant is in custody and subject to interrogation
may not be admitted unless the defendant waives his Fifth Amendment
privilege. Id. (citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)).
Law enforcement officers are not required to give a defendant Miranda
warnings unless the defendant is both in custody and subject to interrogation in
connection with the investigation of a crime. Id. We conclude that, under the
facts of this case, Smith was not in custody for purposes of Miranda when he
stated that he had used drugs earlier in the day. Further, the record supports
the trial court’s determination that Smith’s statements that he “had no choice”
because he had recently lost his job and “that was the easiest way to do it” were
made voluntarily and not as a result of a custodial interrogation. See Transcript
Volume 2 at 157. The challenged statements were not taken in violation of
not required. See Hodges, 54 N.E.3d at 1060. Also, Smith cites Jarman v. State, which found that a consent to
a search “without a warrant and without probable cause” did not unambiguously authorize a search with no
suspicion at all. 114 N.E.3d 911, 912 (Ind. Ct. App. 2018), trans. denied. Here, in addition to the Waiver of
Fourth Amendment Rights, Smith executed the Consent to Search in which he waived “any and all
objections” to a search. State’s Exhibit 1. Jarman does not require reversal.
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Miranda. Moreover, in light of the nature and quantity of drug paraphernalia
and drugs discovered in Smith’s residence, any error in admitting the
challenged statements was harmless. See Kelley v. State, 825 N.E.2d 420, 428-
429 (Ind. Ct. App. 2005) (holding that, even if the defendant’s admission to
drug dealing involvement was admitted in violation of Miranda, the error was
harmless beyond a reasonable doubt).
II.
[10] Smith next claims the evidence does not support the finding that he is an
habitual offender. He argues that the links between the booking documentation
and the records of conviction are too tenuous to support the habitual offender
finding. The State argues that the admitted exhibits included identification in
the form of court records, photographs, motor vehicle records, and social
security information which together support the habitual offender finding.
[11] Upon a challenge to the sufficiency of the evidence for an habitual offender
determination, the appellate court neither reweighs the evidence nor judges the
credibility of the witnesses; rather, we examine only the evidence most
favorable to the judgment, together with all of the reasonable and logical
inferences to be drawn therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct.
App. 2010), trans. denied. The habitual offender determination will be sustained
on appeal so long as there is substantial evidence of probative value supporting
the judgment. Id. Ind. Code § 35-50-2-8 provides in part that a person
convicted of a level 1 through level 4 felony is a habitual offender if the State
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proves beyond a reasonable doubt that: (1) the person has been convicted of two
prior unrelated felonies; and (2) at least one of the prior unrelated felonies is not
a level 6 felony or a class D felony.
[12] State’s Exhibit 40 contained documentation related to a level 6 felony
conviction. State’s Exhibit 41 contained documentation related to a class B
felony conviction. State’s Exhibits 37 through 39 included Smith’s BMV
records and jail records. The trial court found the photographs, name, date of
birth, and social security information where available was the same throughout
the documents and that the driver’s license number was reflected on documents
for both prior causes. We conclude the State presented evidence of probative
value from which the trier of fact could have found Smith was an habitual
offender.
[13] For the foregoing reasons, we affirm.
[14] Affirmed.
Altice, J., and Tavitas, J., concur.
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