Dwight Patton v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 29 2015, 9:09 am
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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwight Patton, April 29, 2015
Appellant-Defendant, Court of Appeals Cause No.
60A01-1403-CR-115
v. Appeal from the Owen Circuit Court
Lower Court Cause No.
State of Indiana, 60C01-1107-FD-417
The Honorable Lori Thatcher
Appellee-Plaintiff.
Quillen, Judge
Pyle, Judge.
Statement of the Case
[1] Appellant/Defendant, Dwight Patton (“Patton”), appeals his conviction for
Class D felony possession of marijuana in an amount greater than thirty (30)
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grams.1 His conviction was based on marijuana seized from his barn, a patch
beside his barn, and a wagon beside his house. On appeal, he does not
challenge the trial court’s admission of the marijuana found in the patch or
wagon but argues that the trial court abused its discretion in admitting the
marijuana seized from his barn because the seizure resulted from a search that
he claims violated his constitutional rights under the United States and Indiana
Constitutions. He also argues that the State did not produce sufficient evidence
that the weight of the marijuana supporting his conviction exceeded thirty (30)
grams, as was required to convict him of a Class D felony rather than a Class A
misdemeanor. We conclude that the search of Patton’s barn and seizure of the
marijuana did not violate Patton’s rights under the United States Constitution
because there were exigent circumstances and the marijuana was in plain view.
The search and seizure also did not violate the Indiana Constitution because the
State troopers’ actions were reasonable. Finally, we conclude that there was
sufficient evidence that Patton possessed more than thirty (30) grams of
marijuana.
[2] We affirm.
Issues
[3] 1. Whether the trial court abused its discretion in admitting evidence.
1
IND. CODE § 35-48-4-11(1). We note that, effective July 1, 2014, a new version of this statute was enacted
and Patton’s offense would now qualify as Class B misdemeanor. However, because Patton committed his
offense in 2011, we will apply the statute in effect at that time.
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[4] 2. Whether the State produced sufficient evidence that Patton possessed more
than thirty (30) grams of marijuana.
Facts
[5] On July 14, 2011, Indiana State Police (“ISP”) troopers Tim Cummins
(“Trooper Cummins”), Kurt Feather (“Trooper Feather”), Jason Kempf
(“Trooper Kempf”), and Larry Annick (“Trooper Annick”), who are troopers
in the ISP Marijuana Eradication Program, flew over Central Indiana in a
helicopter trying to spot outdoor marijuana cultivation. They were heading to
Hulman Field in Terre Haute to refuel their helicopter when they passed over
property that Patton was renting in Owen County (“Patton’s Property”). 2 On
the property were a single-story residence, a large vegetable garden to the west
of the residence, and a dilapidated barn to the west of the garden. The barn was
about fifty yards from the road and 100 yards from the residence.3 Trooper
Feather thought that he saw marijuana plants next to the barn and told the
2
For ease of reference, we will refer to the property as “Patton’s Property,” even though he did not own the
property.
3
Trooper Cummins testified to these lengths at trial. In contrast, Trooper Kempf testified at trial that the
barn was about 150 yards from the house. Trooper Feathers testified at the suppression hearing that the barn
was twenty-five to 100 yards from the house. We will consider the distance between the house and the barn
100 yards as all three troopers agree that it was potentially that far. In addition, to the extent Trooper
Feathers testified that the distance might only be twenty-five yards, that testimony contradicts the testimony
of the other two troopers, and we may only consider evidence produced in a suppression hearing to the
extent it does not contradict later trial testimony. Morris v. State, 871 N.E.2d 1011, 1016 (Ind. Ct. App. 2007),
trans. denied.
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other troopers that he wanted to return to the property for further investigation
after refueling.
[6] Accordingly, the troopers flew back over the property an hour or two later after
refueling. Trooper Cummins observed that there was indeed a patch containing
what appeared to be rows of marijuana plants behind Patton’s barn. He
estimated that there were thirty plants in total. The patch was also partially
bordered by eight to twelve foot tall horseweeds, which resemble marijuana.4
Trooper Kempf took aerial photographs of the property, including the barn and
the marijuana patch.
[7] It was the troopers’ normal procedure to mark the locations of marijuana they
discovered on a handheld GPS unit so that they could follow up at another time
and avoid landing the helicopter. However, they also had a policy that if they
observed a person on a property where they had discovered marijuana, they
would investigate immediately to avoid potential destruction of evidence. On
their second pass around Patton’s Property, the troopers noticed a man near the
garden. As a result, they decided to land their helicopter and investigate
immediately. While they were trying to find somewhere to land, they saw the
man, whom they later identified as Patton, in the marijuana patch pulling up
the marijuana plants.
4
Trooper Cummins testified that the horseweeds were ten to twelve feet tall, and Trooper Feathers testified
that the horseweeds were eight to ten feet tall.
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[8] Approximately three to four minutes later, the troopers landed directly across
the road on the other side of the barn. Trooper Cummins ran to the barn and
found Patton inside on his hands and knees. He made Patton stand and
noticed that Patton was “[v]ery dirty”, “very hot, . . . profusely sweating, [and] .
. . had mud starting to drip down him.” (Tr. 226). At his request, Patton left
the barn and sat on a cinder block in the yard.
[9] Meanwhile, Trooper Feathers ran to the marijuana patch and observed that the
dirt in the patch had been disturbed, and only two of the marijuana plants
remained. When he told Trooper Kempf that most of the plants were gone,
they both attempted to search for the plants in the horseweeds surrounding the
marijuana patch. When they did not find any of the plants there, Trooper
Cummins told Trooper Kempf about finding Patton in the barn, and Trooper
Kempf went to that spot in the barn. He got on his hands and knees—the
position in which Trooper Cummins had found Patton—and spotted some
marijuana plants through a hole in the barn’s floor. He could not reach the
plants from the inside of the barn, so he walked outside and was able to retrieve
them through another hole on the outside of the barn. In total, he retrieved ten
marijuana plants. He observed that they appeared to be “freshly pulled up” and
still had dirt and roots attached. (Tr. 330). All of the plants were immature.5
5
Trooper Cummins later testified that this was because marijuana is not usually harvested until the end of
September or beginning of October, and these plants were seized in July.
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[10] While the troopers were at the scene, they searched the immediate area around
the marijuana patch, and Patton’s wife gave consent for them to search the
house. Although they did not find any plants in the house, they did discover a
wagon with thirty-eight starter marijuana plants in Styrofoam cups by the
backside of the garden, near the house.6 Patton talked to Trooper Cummins
and admitted that the starter plants were his, although he denied having
anything to do with the marijuana plants in the patch and barn. Before leaving,
Trooper Feathers went back up into the helicopter to see if he could find any of
the remaining eighteen missing plants from the air, but he did not have any
success.
[11] Subsequently, Haley Newton (“Newton”), a forensic scientist with the ISP Lab,
analyzed the plants obtained from Patton’s Property and confirmed they were
indeed marijuana plants. She found that the marijuana recovered from the barn
and patch weighed 20.47 grams, and the starter marijuana plants from the
wagon weighed 14.88 grams. In total, the plant material weighed 35.35 grams.
[12] Thereafter, on July 15, 2011, the State charged Patton with two counts of Class
D felony possession of marijuana in an amount over thirty (30) grams,
including one count under INDIANA CODE § 35-48-4-11(1) for possessing it and
one count under INDIANA CODE § 35-48-11(2) for growing it.7 On June 18,
6
The starter plants were six to eight inches tall.
7
It is apparent that the State combined the weights of the marijuana seized from Patton’s patch, barn, and
wagon to exceed the thirty grams required for a Class D felony.
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2012, Patton filed a motion to suppress the evidence of the marijuana. 8 He filed
a second motion to suppress on October 3, 2013, in which he argued that the
troopers had violated his federal and state constitutional rights to be free from
unreasonable search and seizure and that, accordingly, the trial court should
suppress the evidence seized from the search of his barn. Notably, he did not
argue that the trial court should suppress the evidence of the marijuana found in
the patch or the wagon.
[13] On October 7, 2013, the trial court held a hearing on Patton’s motion to
suppress, which it ultimately denied. The trial court then held a jury trial on
October 9-11, 2013. On the first day of the trial, Patton made a motion in
limine, again requesting the trial court to suppress the barn marijuana evidence.
The trial court denied the motion but showed Patton’s continuing objection to
any admission of the marijuana into evidence. At trial, the trial court admitted
all the marijuana, and at the conclusion of the trial, the jury found Patton guilty
as charged. Subsequently, the trial court held a sentencing hearing on
November 12, 2013. It merged Patton’s convictions and sentenced him to
1,095 days, with 180 days executed on home detention and the rest suspended
to probation. Patton now appeals.9
8
Patton cites that this motion is included on page forty-six of his Appendix, but page forty-six of the
Appendix is missing.
9
Patton filed both a motion for leave to file a belated notice of appeal and an amended motion for leave to
file a belated notice of appeal. The trial court granted the amended motion.
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Decision
[14] On appeal, Patton argues that the trial court abused its discretion in admitting
the evidence of the marijuana seized from his barn because the troopers’ search
of the barn was unconstitutional under both the United States and Indiana
constitutions. Alternately, he asserts that the State did not produce sufficient
evidence that the marijuana he possessed weighed more than thirty (30) grams,
as was required to convict him of a Class D felony as opposed to a Class A
misdemeanor. We will address each of these arguments in turn.
1. Constitutional Claims
[15] First we will consider the trial court’s admission of the evidence of the
marijuana seized from Patton’s barn. Because Patton did not seek an
interlocutory appeal of his motion to suppress evidence, we consider the trial
court’s admission of the evidence at trial rather than its denial of his motion to
suppress. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We review a trial
court’s decision to admit evidence for an abuse of discretion, which we will find
if the court’s decision is clearly against the logic and effect of the facts and
circumstances before it, and the error affects a party’s substantial rights. Id. In
making this determination, we do not reweigh the evidence, and we consider
conflicting evidence in the light most favorable to the trial court. Weddle v.
State, 989 N.E.2d 371, 375 (Ind. Ct. App. 2013), aff’d on reh’g, trans. denied. We
review any questions of law, such as the ultimate determination of the
constitutionality of a search and seizure de novo. Carpenter, 18 N.E.3d at 1001.
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[16] Patton’s admissibility argument is founded on his assertion that the troopers
conducted an unconstitutional search of the inside of his barn and that the
evidence they discovered as a result of the search was, thus, inadmissible. Both
the Fourth Amendment to the United States Constitution and Article 1, Section
11 of the Indiana Constitution protect against unreasonable searches and
seizures, and both use similar language.10 In spite of their similarities, however,
we analyze claims differently under each constitution. Accordingly, we will
first address Patton’s claims under the Fourth Amendment and then turn to
Article 1, Section 11.
A. United States Constitution
[17] Patton first argues that the troopers’ search of the inside of his barn violated the
Fourth Amendment’s prohibition against unreasonable searches and seizures
because they did not have a warrant and because no exceptions to the Fourth
Amendment’s warrant requirements applied. In response, the State argues that
the troopers did not need a warrant because Patton’s barn was not protected by
the Fourth Amendment. Alternately, the State contends that exceptions to the
Fourth Amendment applied because the marijuana was in plain view, and
Patton’s attempted disposal of the marijuana created exigent circumstances.
[18] To trigger Fourth Amendment protections, a search arises out of an intrusion
by a government actor upon an area in which a person maintains “‘a reasonable
10
The Fourth Amendments protections extend to the states through the Fourteenth Amendment. Dora v.
State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.
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expectation of privacy.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). A constitutionally
protected expectation of privacy exists where there is both a subjective
expectation of privacy and societal recognition that such expectation of privacy
is reasonable. Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g
denied, trans. denied. The United States Supreme Court has held that the land
immediately surrounding and associated with the home, known as the
curtilage, merits Fourth Amendment protections. Id. In contrast, a person does
not have a legitimate expectation of privacy in open field areas that fall beyond
a home’s curtilage. Oliver v. United States, 466 U.S. 170, 181 (1984). These
“open fields” need be neither open nor fields. Blalock v. State, 483 N.E.2d 439,
443 (Ind. 1985). In addition, the Fourth Amendment also does not protect
“‘activities or items that, even if within the curtilage, are knowingly exposed to
the public.’” Dora, 957 N.E.2d at 1052 (quoting Trimble v. State, 842 N.E.2d
798, 802 (Ind. 2006)).
[19] Citing the above precedent, the State argues that Patton’s barn was outside of
the curtilage and, therefore, was not protected by the Fourth Amendment.
However, we need not address this argument, because the Troopers’ search and
seizure were reasonable even if the barn was protected by the Fourth
Amendment.
[20] A search or seizure conducted without a warrant in an area protected by the
Fourth Amendment is per se unreasonable. Rush v. State, 881 N.E.2d 46, 50
(Ind. Ct. App. 2008). However, there are a few well-delineated exceptions,
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including when exigent circumstances exist and when an officer conducts a
lawful search and discovers an item in plain view. Id; see Justice v. State, 765
N.E.2d 161 (Ind. Ct. App. 2002), decision clarified on reh’g. If a warrantless
search or seizure is conducted, the burden is on the State to prove that, at the
time of the search or seizure, an exception to the warrant requirement existed.
Id.[21] One exception to the Fourth Amendment warrant requirement allows police to
dispense with obtaining a warrant if there are exigent circumstances—
specifically where “‘the exigencies of the situation’ make the needs of law
enforcement so compelling that the warrantless search is objectively reasonable
under the Fourth Amendment.’” Holder, 847 N.E.2d at 936-37 (quoting Mincey
v. Arizona, 437 U.S. 38, 394 (1978)). Among the exigencies that may properly
excuse the warrant requirement are threats to the lives and safety of officers and
others and the imminent destruction of evidence. Id.[22] Another exception to the Fourth Amendment warrant requirement is the plain
view doctrine. Under the plain view doctrine, an officer may seize evidence if:
(1) the officer did not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed; (2) the incriminating
character of the evidence is immediately apparent; and (3) the officer has a
lawful right of access to the object itself. Middleton v. State, 714 N.E.2d 1099,
1101 (Ind. 1999).
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[23] Here, the troopers, while lawfully flying above the property, observed
marijuana growing on the property in plain view. This observation was not a
Fourth Amendment violation. See, e.g., Kyllo v. United States, 533 U.S. 27, 33
(2001) (noting that the Court has held “on two different occasions . . . that
aerial surveillance of private homes and surrounding areas does not constitute a
search” under the Fourth Amendment) (citing Florida v. Riley, 488 U.S. 445(1989) (plurality opinion); California v. Ciraolo, 476 U.S. 207 (1986)).
[24] The troopers then observed Patton near the marijuana, and, while they were
still in the air, they saw Patton start to pull up the marijuana and take the
removed plants into the dilapidated barn. These observations created exigent
circumstances—namely, the potential, imminent destruction of evidence. See,
e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (“the need to prevent the
imminent destruction of evidence has long been recognized as a sufficient
justification for a warrantless search”) (citations and quotations omitted). Thus,
the troopers were justified in landing on Patton’s property and following Patton
into the barn without a warrant.
[25] Finally, once inside the barn, the troopers observed Patton on his hands and
knees on the floor of the barn before they placed him under arrest. After they
had detained Patton, Trooper Kempf then got on his hands and knees where
Patton had been and observed, through a hole in the floor, the marijuana plants
Patton had removed. Trooper Kempf was also able to observe the uprooted
plants from outside the barn. As a matter of Fourth Amendment law, Trooper
Kempf was in a place where he had a legal right to be and he observed the
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plants in plain view from that location. See, e.g., Texas v. Brown, 460 U.S. 730,
740 (1983) (holding that the officer’s change in position, which included
“ben[ding] down at an angle, . . . is irrelevant to Fourth Amendment analysis”)
(quotation omitted). In light of these exceptions to the warrant requirement, we
conclude that the troopers’ search and seizure did not violate Patton’s
constitutional right to privacy under the Fourth Amendment. However,
because we analyze the Indiana Constitution differently from the United States
Constitution, we will turn to address Patton’s claims under the Indiana
Constitution.
B. Indiana Constitution
[26] Article 1, Section 11 of the Indiana Constitution, like the Fourth Amendment,
prohibits unreasonable searches and seizures. However, although the language
of Article 1, Section 11 is almost identical to the language of the Fourth
Amendment, interpretations and applications between them vary. Holder, 847
N.E.2d at 935. This is because Indiana courts have “explicitly rejected the
‘expectation of privacy’ as a test of the reasonableness of a search or seizure.”
Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014) (quoting Litchfield v.
State, 824 N.E.2d 356, 359 (Ind. 2005)).
[27] Under the Indiana Constitution, the legality of a governmental search turns on
an evaluation of the reasonableness of the police conduct under the totality of
the circumstances. Id. We determine the reasonableness of a search or seizure
by balancing: (a) the degree of concern, suspicion, or knowledge that a
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violation has occurred; (b) the degree of intrusion the method of the search or
seizure imposes on the citizens’ ordinary activities; and (c) the extent of law
enforcement needs. Rush, 881 N.E.2d at 52. We give Article 1, Section 11 a
liberal construction in favor of protecting individuals from unreasonable
intrusions on privacy, id., and the State must bear the burden of showing that,
under the totality of the circumstances, an intrusion was reasonable. Mitchell,
745 N.E.2d at 786.
[28] As for the first factor, the troopers here had a high degree of suspicion that a
violation had occurred because they had identified thirty marijuana plants on
Patton’s Property from their helicopter, and they had seen Patton attempting to
pull the plants up. When they arrived at the marijuana patch, only two of the
marijuana plants remained.
[29] As for the second factor, the troopers’ degree of intrusion was relatively low. It
is apparent from the record that the troopers’ discovery of Patton and
subsequent discovery of the marijuana occurred within a relatively short time
frame, and, therefore, the troopers did not unreasonably interfere with Patton’s
ordinary activities. In addition, the scope of the search was narrow because
Trooper Kempf contained his search to the area of the barn where Trooper
Cummins had discovered Patton. Accordingly, we conclude that the troopers’
level of intrusion was relatively minimal.
[30] Finally, as for the third factor, it is clear that the extent of law enforcement
needs was strong. The troopers had identified thirty marijuana plants on
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Patton’s Property from their helicopter and only found two plants remaining
when they arrived at the patch. They knew that a violation had occurred and
needed to find the marijuana before it was destroyed. Further, because the
troopers saw Patton pulling up the plants and very little time had passed before
they landed their helicopter and arrived at the patch, the troopers knew that the
plants were likely within the vicinity of the patch and barn.
[31] In regards to Patton’s argument that, because he was detained, the troopers did
not have an extensive law enforcement need to find the marijuana because he
could not continue to destroy the marijuana while detained, we note that it is
true that Patton could not continue to destroy evidence. However, that does
not affect the fact that the troopers knew Patton had committed a violation,
knew the marijuana was in the vicinity of the barn, and needed to obtain it for
law enforcement purposes. The fact that Patton was detained does impact the
extent of law enforcement need but not to the point that the troopers did not
need to find the marijuana.
Furthermore, even if we were to decide this factor in Patton’s favor, we must
balance the three factors, and the troopers had knowledge a violation had
occurred and only minimally intruded on Patton’s ordinary activities.
Therefore, we conclude that the troopers’ actions were reasonable under the
totality of the circumstances and did not violate Article I, Section 11 of the
Indiana Constitution. Accordingly, the trial court did not abuse its discretion in
admitting the evidence of the marijuana recovered from the barn.
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2. Sufficiency
[32] Next, Patton argues that the State did not present sufficient evidence that the
marijuana he possessed weighed more than thirty grams, which was the
amount required to convict him of possession of marijuana as a Class D felony.
The standard of review for a sufficiency of the evidence claim is that this Court
should only reverse a conviction when reasonable persons would not be able to
form inferences as to each material element of the offense. Perez v. State, 872
N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh
evidence or judge the credibility of witnesses. Id. at 213. In addition, we only
consider the evidence most favorable to the verdict and the reasonable
inferences stemming from that evidence. Id.[33] At the time of Patton’s offense, INDIANA CODE § 35-48-4-11 provided that a
person who “knowingly or intentionally possesse[d] (pure or adulterated)
marijuana” in an amount greater than thirty grams committed Class D felony
possession of marijuana. However, the offense was a Class A misdemeanor if
the amount involved was thirty grams or less. I.C. § 35-48-4-11. Also at that
time, INDIANA CODE § 35-48-1-19 defined “marijuana” as:
Any part of the plant genus Cannabis whether growing or not;
the seeds thereof; the resin extracted from any part of the plant,
including hashish and hash oil; any compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant; fiber
produced from the stalks; oil or cake made from the seeds of the
plant; any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks (except the resin
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extracted therefrom); or the sterilized seed of the plant which is
incapable of germination.11
For purposes of determining whether a defendant has possessed more than
thirty grams of marijuana, we may also consider the weight of any adulterated
marijuana, which includes “‘other vegetable material’ not included within the
definition of marijuana.” Adams v. State, 968 N.E.2d 281, 286 (Ind. Ct. App.
2012) (quoting Allison v. State, 527 N.E.2d 234, 238 (Ind. Ct. App. 1988), trans.
denied), trans. denied.
Patton’s first argument with respect to the weight of the marijuana is that the
State did not prove that the marijuana the ISP Lab weighed was dry. He
contends that if the marijuana were not dry, its weight could have included
external water weight. In support of this argument, he cites to Lycan v. State,
671 N.E.2d 447, 457 (Ind. Ct. App. 1996), where this Court held that the
aggregate weight of marijuana for the purposes of an offense enhancement
could not include external water weight. In Lycan, the marijuana at issue was
“very wet” when it was first weighed and weighed ten and a half pounds. Id. at
452. In contrast, the marijuana only weighed nine pounds after it dried, and
that amount was not sufficient to support Lycan’s conviction for Class C felony
possession with the intent to deliver more than ten pounds of marijuana. Id. at
459.
11
This statute was amended, effective March 6, 2014.
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[34] Unlike Lycan, however, there is no evidence here that the marijuana Newton
from the ISP Lab measured was wet and contained excess water weight.
Trooper Feather testified that he left the marijuana in a room that the State
Troopers call the “dry room” so that it could dry until it “really dr[ied] out.”
(Tr. 336). Newton also testified that the ISP Lab would not accept wet plant
material for analysis. Based on this evidence, it is clear that the marijuana was
dry, and Patton’s argument that it might have contained external water weight
is pure speculation that we will not consider.
[35] In a second challenge to the weight of the marijuana, Patton contends that the
plant material Newton weighed at the lab might have included some
horseweed. However, Trooper Feather specifically testified that the samples he
sent to the lab did not contain any horseweed or any parts of horseweed plants.
We will not reweigh the evidence. Perez, 872 N.E.2d at 213. Accordingly, we
conclude that the State presented sufficient evidence that Patton possessed more
than thirty grams of marijuana.
Affirmed.
Najam, J., and Bailey, J., concur.
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