Christopher A. Fischer v. State of Indiana ( 2013 )

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 Jun 19 2013, 7:15 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER A. FISCHER, )
)
Appellant-Defendant, )
)
vs. ) No. 82A04-1207-CR-382
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelly Fink, Magistrate
Cause No. 82C01-1112-FC-1520
June 19, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Christopher Fischer (“Fischer”) appeals his jury convictions for C felony burglary,
D felony receiving stolen property, and D felony theft in Vanderburgh Circuit Court on
the grounds that inadmissible evidence obtained pursuant to an unlawful Terry stop and
an invalid search warrant was admitted at trial. Fischer argues the admission of this
evidence at trial violated his Fourth Amendment protection against unlawful searches and
seizures under the U.S. Constitution. We disagree and affirm.
Facts and Procedural History
Shortly before December 9, 2011, Sarah Wadlington (“Wadlington”) came to the
Vanderburgh Sheriff’s Department, where she informed Detective Randy Chapman
(“Detective Chapman”) that Fischer, her former boyfriend, had obtained stolen goods.
Wadlington described Fischer’s truck and told the detective that Fischer would be
bringing stolen goods to a storage unit located on Mill Road at some point on December
9, 2011. Based on this information, police began watching for Fischer’s truck as well as
conducting surveillance in the area near the storage facility.
On December 9, 2011, detectives of the Vanderburgh County Sheriff’s
Department were independently conducting surveillance near St. Joe Avenue and Allens
Lane in Vanderburgh County due to recent copper thefts from area businesses. At around
1:30 AM, Detectives Mike Robinson and Chapman drove around the rear of the Frontier
Kemper Building and saw Fischer’s Ford F-150 pickup truck parked with an empty
trailer attached. Id. Although it was cold outside, in contrast to other nearby vehicles, the
truck’s windows were not frosted over, indicating that the truck had been in recent use.
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The detectives began surveillance of the truck and also observed a white Chrysler
300M circling the area. Shortly thereafter, the detectives saw the truck emerging from
behind the building with a Kawasaki utility vehicle loaded onto the previously empty
trailer. The 300M and the truck left the area together, heading east on Allens Lane, and
the police followed. The vehicles drove to Mill Road Mini Storage, where detectives
already stationed at that facility were able to observe Fischer exiting the truck and
opening storage unit 52.
As Fischer opened the unit, detectives converged on the suspects and detained
Fischer, along with the occupants of the white Chrysler 300M, David Brand, Tasha
Fischer, and Ashley White. The officers observed several items in plain view in the open
storage unit and in Fischer’s truck related to an open theft and a burglary investigation in
Evansville. Specifically, the detectives observed tools, chainsaws, drills, jumper cables,
and grinders related to that open investigation and a length of high voltage cable that had
previously been reported stolen by Frontier Kemper. Also, Detective Kenny Fields
recognized other items in plain view that had been reported stolen by Ritzert Plumbing.
An inventory search was also conducted on Fischer’s truck before the vehicle was towed
pursuant to Fischer’s arrest, and during that search numerous items were photographed
and placed back in the truck.
After taking statements from the occupants of the white car, the police contacted
the listed renter to obtain consent to search the open unit, number 52, and a second unit
used by Fischer.1 Detective Andrew Lasher obtained a search warrant to conduct a full
1
Fischer’s sister, Amanda, was the lessee of the units. Police requested and received her consent to
search the unit. Tr. p. 497.
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search of Fischer’s truck. Upon executing the warrant on December 9, 2011, police
seized tools, chainsaws, cell phones, gloves, wire, disc grinders, drills, cordless batteries,
extension cords, a hanging light, jumper cables, and flashlights as “fruits,
instrumentalities and evidence of the crime of Burglary and Theft.” Appellant’s App. p.
173.
On December 13, 2011, Fischer was charged with three counts: (1) Class C Felony
Burglary; (2) Class D Felony Theft; and (3) Class D Felony Receiving Stolen Property.
The State also alleged that Fischer was an habitual offender.
On April 23, 2012, Fischer filed a motion to suppress evidence discovered
pursuant to the search warrant, claiming that the initial detention of persons and property
at the mini storage facility was an unlawful Terry stop and that the subsequent warrant
lacked probable cause because police had also obtained information from a confidential
informant whom they failed to mention in the affidavit of probable cause. A suppression
hearing was held on May 7, 2012. The court denied the motion on May 10, 2012.
On May 16, 2012, the jury trial commenced, and the photographs of the stolen
tools observed in the preliminary search and in the searches pursuant to the consent of
Fischer’s sister and pursuant to the warrant were admitted at trial without an initial
objection by Fischer. Tr. pp. 93, 207, 219, 220, 221, 241, 243, 244, 245, 246, 259, 264.
However, Fischer did object to testimony connecting the items in the photographs to
Fischer’s storage unit and truck as products of illegal searches executed under an
unlawful stop and an invalid warrant, but the testimony was admitted over Fischer’s
continuing objection. Tr. pp. 300-26.
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On May 17, 2012, the jury returned verdicts of guilty on all three counts, and also
found Fischer to be an habitual offender. Fischer was sentenced to six years executed in
the Department of Correction for Class C felony burglary, and the trial court ordered him
to serve an additional eight years for the habitual offender adjudication, for a total of
fourteen years executed. Fischer was also ordered to serve concurrent terms of two years
executed for Class D felony theft, and two years executed for Class D felony receiving
stolen property. Fischer now appeals.
Standard of Review
The admission of evidence is reviewed only for an abuse of discretion, and the
trial court’s exercise of its discretion in this regard is abused only if the trial court’s
decision is clearly against logic and the effect of the facts and circumstances before the
court, or if the court has misinterpreted the law. Rogers v. State, 897 N.E.2d 955, 959
(Ind. Ct. App. 2008), trans. denied. In reviewing the trial court’s decision, we do not
reweigh evidence, and, while we consider conflicting evidence most favorable to the trial
courts ruling, uncontested evidence that is favorable to the defendant is also considered.
Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied.
Discussion and Decision
Fischer contends that the trial court abused its discretion in denying his motion to
suppress the evidence obtained from the truck and the storage units. However, this is not
an interlocutory appeal; rather, Fischer appeals following his conviction. Therefore, the
question is properly framed as whether the trial court abused its discretion in admitting
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the evidence obtained from the truck and the storage units.2 Patterson v. State, 958
N.E.2d 478, 482 (Ind. Ct. App. 2011).
The Fourth Amendment to the United States Constitution protects citizens against
unreasonable searches and seizures performed by the government.3 Malone v. State, 882
N.E. 2d 784, 786 (Ind. Ct. App. 2008). Classically, this protection is enforced by the
requirement that police officers obtain a warrant before searching premises owned by an
individual or seizing an individual’s property, and searches conducted without a warrant
are considered unreasonable per se. Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006).
However, there are a few established exceptions to the warrant requirement, and the State
may, under appropriate circumstances, defend against a charge that it executed an
unreasonable search, if it can prove that an exception to the warrant requirement existed
at the time of the search. Id.; Malone, 882 N.E.2d at 786.
First, Fischer claims that his initial detention was without reasonable suspicion and
was therefore unjustified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). Terry permits officers to stop and briefly detain an individual for investigative
purposes if the officer has a reasonable suspicion that criminal activity may be underway,
so long as the officer can support that suspicion by articulable facts. Terry, 392 U.S. at
2
The State alleges that the argument regarding admission of evidence is waived because Fischer failed to
object to the introduction of photographs at trial. However, the State introduced the photographs into
evidence through the individuals who had claimed the items photographed were stolen, before the
photographs were linked to Fischer’s theft of the items. Fischer did object to the investigating detectives’
testimony regarding where the previously admitted photographs had been taken and linking the
photographs to Fischer’s thefts. Accordingly, Fischer has preserved, if only partially, his claim that the
evidence was erroneously admitted, and we review the trial court’s decision to admit the evidence
notwithstanding any waiver of the issue, partial or otherwise.
3
Fischer raises no claim under the Indiana Constitution, and therefore waives any state constitutional
claim. Patterson, 958 N.E.2d at 488.
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21; Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009); Patterson, 958 N.E.2d at 482(Ind. Ct. App. 2011); Howard v. State, 862 N.E.2d 1208, 1210 (Ind. Ct App. 2007).
Importantly, the officer need not establish probable cause in order to conduct a Terry
stop. Id.Fischer claims that the officers in this case lacked reasonable suspicion to detain
him and conduct an investigative search of his truck and open storage unit. This Court
determines whether an officer had the requisite reasonable suspicion to conduct an
investigative stop by examining the totality of the circumstances. Fischer is correct that
reasonable suspicion is an objective determination and that it “must be based upon
specific and articulable facts, not mere hunches.” Swanson v. State, 730 N.E.2d 205, 209
(Ind. Ct. App. 2000) (citing Kenner v. State, 703 N.E.2d 1122, 1125-25 (Ind. Ct. App.
1999)). However, “[r]easonable suspicion will be found where the facts known to the
officer and the reasonable inferences would cause an ordinarily prudent person to believe
that criminal activity has or is about to occur.” Swanson, 703 N.E.2d at 209 (citing
Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)).
Cases involving Terry stops are very fact-sensitive and vary in the type and
number of articulable facts leading to reasonable suspicion to conduct a stop. In a
marijuana possession case, the smell of burnt marijuana emanating from the open door of
a vehicle, coupled with the concern that the suspect might be armed was sufficient to
support reasonable suspicion for a stop. Patterson, 958 N.E.2d at 483-84. In a public
intoxication case, the smell of alcohol and observed, slurred speech was sufficient to
justify a stop. Woodson v. State, 966 N.E.2d 135, 141 (Ind. Ct. App. 2012). And in
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Terry’s case, the officer’s reasonable suspicion was supported simply by their
observation of conduct that appeared consistent with a hypothesis that the suspects were
contemplating a daylight robbery. Terry, 392 U.S. at 4.
In this case, officers were conducting general surveillance in the early morning
hours in an area that had experienced a rash of copper thefts. Frontier Kemper was one
area business that stored copper and other materials on its premises and had experienced
copper thefts in the recent past. At the time in question, the business was closed for the
evening, and the officers noted that no other vehicles were in use in the area.
Additionally, police had received information form Sarah Wadlington that Fischer was
dealing in stolen goods and that he would be engaging in such activity at a mini storage
facility on Mill Road that evening. Thus, they were conducting surveillance both
regarding recent thefts by unknown suspects and also pursuant to Wadlington’s
information about Fischer.
At 1:30 a.m., the detectives observed a truck matching the description provided by
Wadlington parked behind the Frontier Kemper building. An unloaded trailer was
hitched to the truck, and the truck appeared to have been in recent use due to the lack of
frost on its windows. As the detectives began surveilling the truck, they also saw a white
Chrysler 300M circling the area. When the detectives saw the truck and 300M leave the
parking lot at approximately 2 a.m., or shortly thereafter, now with the Kawasaki utility
vehicle loaded on the truck’s trailer, they followed the vehicles to the mini storage
facility on Mill Road, and to the specific unit they had been tipped about by Ms.
Wadlington. When the police converged on Fischer and the occupants of the 300M, they
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were able to observe items that had been reported stolen in plain view from the open door
of unit 52.
Although “an anonymous tip alone is not likely to constitute the reasonable
suspicion necessary for a valid Terry stop,” Sellmer v. State, 842 N.E.2d 358, 361 (Ind.
2006), here, police had more. First, police had information from Sarah Wadlington,
Fischer’s ex-girlfriend, that Fischer would be engaged in illegal activity at the storage
unit. Police conducting an independent investigation also observed Fischer’s truck
engaged in suspicious activity, very early in the morning, in an area that had been
experiencing a rash of thefts. For all these reasons, officers had reasonable suspicion to
conduct the Terry stop.
Relying on the information gathered from Wadlington4 as well as information
obtained during the Terry stop, Detective Andrew Lasher then obtained a search warrant
for Fischer’s truck. Fischer also challenges the legality of the warrant, arguing only that,
“[t]he warrant is impermissibly tainted by the illegality of the . . . initial seizure of
[Fischer’s] person and property.” Appellant’s Br. at 13.
With respect to determining whether a warrant is valid, this Court asks whether the
issuing judge had a substantial basis for concluding that probable cause existed.
Stephenson v. State, 796 N.E.2d 811, 814 (Ind. Ct. App. 2003) (citing Query v. State, 745
N.E.2d 769, 771 (Ind. 2001). The issuing judge’s task is to make a practical decision
whether there is a fair probability that evidence of a crime will be found in a particular
4
At trial, Fischer argued that because police had relied on Wadlington’s information in making the Terry
stop, but failed to note the information in the probable cause affidavit, that the warrant was invalid. He
does not raise this same argument on appeal, and with the other, independent, Terry stop evidence
contained in the probable cause affidavit, this argument would likely be unpersuasive in any event.
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place, given all the circumstances set forth in the affidavit. Mehring v. State, 884 N.E.2d
371, 376-77 (Ind. Ct. App. 2008). A substantial basis for such a decision exists where
reasonable inferences drawn from the totality of the evidence support the determination
of probable cause. Stephenson, 796 N.E.2d at 814. This court may only consider the
evidence presented to the issuing judge, and may not consider any additional or post hoc
justifications for issuing the warrant. Id.In this case, police had conducted surveillance on Fischer’s truck after a
confidential informant informed them of Fischer’s alleged illegal activity. They were
also conducting general surveillance for the rash of thefts in the area. Thus, in the very
early morning hours in question, there were officers operating under both targeted and
independent investigations. After both investigations culminated in the apprehension of
Fischer as he opened the storage unit, the officers sought to obtain a warrant, and in the
affidavit for probable cause submitted to the issuing judge, detailed the events of the
morning and the information obtained through their investigations. The affidavit
contained reliable and uncontroverted evidence in the form of stolen goods observed by
police in plain view during the Terry stop to support the warrant.
Because the information gathered during the Terry stop, as well as the information
volunteered by Fischer’s ex-girlfriend, Wadlington, provided a substantial basis to
establish a reasonable probability that evidence of a crime would be found in Fischer’s
truck, the trial court did not abuse its discretion in finding that there was sufficient
probable cause to issue a warrant. For all of these reasons, we conclude the search and
seizure of Fischer’s truck and storage units did not violate his Fourth Amendment rights
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under the United States Constitution, and the trial court did not abuse its discretion in
admitting the challenged evidence.
Affirmed.
BAKER, J., and MAY, J., concur.
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