Derrick McNeal v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 24 2020, 8:19 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
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derrick McNeal, June 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1780
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff. Magistrate
The Honorable Jennifer Harrison,
Judge
Trial Court Cause No.
49G20-1807-F3-22570
Brown, Judge.
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[1] Derrick McNeal appeals his convictions for possession of a narcotic drug as a
level 5 felony and possession of marijuana as a class B misdemeanor. He raises
one issue which we restate as whether the trial court abused its discretion by
admitting certain evidence. We affirm.
Facts and Procedural History
[2] McNeal was the subject of an arrest warrant with respect to a “level 5 cocaine
case” and was also the suspect in two separate homicide investigations
conducted by Indianapolis Metropolitan Police Detectives Erica Jones and
Mark Howard. Transcript Volume II at 18. Detective Jones informed
Indianapolis Metropolitan Police Detective Erik Forestal that the handgun used
in the homicide she was investigating had not been recovered. She informed
him that McNeal’s nephew was also a suspect and had been interviewed and
released because there was not “enough evidence at that time to arrest him.”
Id. at 7. Detective Jones also told him that she would like to apply for a search
warrant for firearms and other evidence related to her homicide investigation if
McNeal was located at a residence.
[3] Detective Forestal received information that McNeal was at a residence on
Kristen Court in Marion County, began conducting surveillance of the
residence at around 8:00 p.m. on June 26, 2018, and observed McNeal exit the
front door and sit on the front porch. Detective Forestal conducted surveillance
for thirty to forty-five minutes, called detectives for assistance, waited until
approximately five other officers or detectives arrived, and had an officer
proceed to the back of the residence.
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[4] Detective Forestal drove up to the house and exited his undercover vehicle
while wearing a police vest with a badge, and McNeal ran back inside the house
once he saw him and “veer[ed] to the left.” Id. at 8. Detective Forestal yelled
at McNeal to stop, but he did not comply. Detective Forestal ran up to the
front door but did not pursue McNeal into the residence. He ordered McNeal
to exit the house, and McNeal complied in approximately thirty seconds to one
minute and was taken into custody on the walkway in front of the house and
handcuffed. Detective Forestal did not find any drugs, baggies, paraphernalia,
or weapons on McNeal. Two females then exited the house leaving the door to
the residence open.
[5] Detective Forestal called Detective Howard, who told him that he was going to
apply for a search warrant and requested Detective Forestal remain at the
residence. Detective Forestal entered the residence with several other officers to
make sure there were no threats present to the officers, and observed what he
believed to be marijuana and either cocaine or heroin in a separate bag next to
it on the couch in the front living room.
[6] That same day, Detective Howard completed a search warrant affidavit, and a
judge issued a search warrant for firearms and accessories, bullets, documents,
DNA, fingerprints, cell phones, photographs, drugs, and drug paraphernalia.
Indianapolis Metropolitan Police Detective Michael Condon collected the
narcotics that were observed in plain view, but did not find any other narcotics,
paraphernalia, ledgers, or guns.
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[7] On July 12, 2018, the State charged McNeal with Count I, dealing in a narcotic
drug as a level 3 felony, Count II, possession of a narcotic drug as a level 5
felony, and Count III, possession of marijuana as a class B misdemeanor. On
March 15, 2019, McNeal filed a motion to suppress evidence obtained in
violation of the Fourth Amendment of the United States Constitution.
[8] On April 9, 2019, the court held a hearing on McNeal’s motion. When asked
to describe holding his position at the residence while awaiting the warrant,
Detective Forestal answered: “It’s basically to secure the residence to make sure
that there’s no people inside that are threats or that can destroy any evidence
that might be seized during the search warrant.” Id. at 10. He indicated he
entered the home to make sure there were no threats to the officers. He testified
that one of the main concerns was that McNeal’s nephew, who was the possible
other suspect in the homicide investigation, could be in the residence. During
cross-examination McNeal’s counsel asked him: “And you didn’t have any
information that Mr. McNeal would be with his nephew that day – on June
26th, right?” Id. at 18. Detective Forestal answered: “The information
Detective Jones provided me that they would likely be together.” Id. He also
indicated the provided information showed that there was not enough evidence
to arrest the nephew. At the end of the hearing, the court found that the
protective sweep was reasonable. After some discussion regarding the search
warrant, McNeal’s counsel indicated that she had a copy of the search warrant
and mentioned “defense A.” Id. at 28. The court stated it needed to review the
search warrant and continued the hearing.
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[9] On April 16, 2019, the court resumed the hearing, heard argument, and found
that the protective sweep was valid and that probable cause existed for the
issuance of the search warrant and denied the motion to suppress.
[10] On June 11, 2019, the State alleged McNeal was an habitual offender. On June
12, 2019, the court held a jury trial. The jury found McNeal guilty of Count II,
possession of a narcotic drug, and Count III, possession of marijuana as a class
B misdemeanor, and not guilty of Count I, dealing in a narcotic drug as a level
3 felony. McNeal admitted the factual basis sufficient to enhance Count II to a
level 5 felony. The State moved to dismiss the habitual offender enhancement,
and the court granted the motion. The court sentenced McNeal to four years
for Count II and 180 days for Count III and ordered the sentences to be served
concurrently.
Discussion
[11] Although McNeal originally challenged the admission of the evidence through
a motion to suppress, he now challenges the admission of the evidence at trial.
Thus, the issue is appropriately framed as whether the trial court abused its
discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80
(Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067
(Ind. Ct. App. 2005).
[12] We review the trial court’s ruling on the admission or exclusion of evidence for
an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g
denied. We reverse only where the decision is clearly against the logic and effect
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of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),
reh’g denied. In reviewing the trial court’s ruling on the admissibility of evidence
from an allegedly illegal search, an appellate court does not reweigh the
evidence but defers to the trial court’s factual determinations unless clearly
erroneous, views conflicting evidence most favorably to the ruling, and
considers afresh any legal question of the constitutionality of a search or
seizure. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). Even if the trial
court’s decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.
1999), reh’g denied, trans. denied. “[T]he ultimate determination of the
constitutionality of a search or seizure is a question of law that we consider de
novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[13] In ruling on admissibility following the denial of a motion to suppress, the trial
court considers the foundational evidence presented at trial. Id. If the
foundational evidence at trial is not the same as that presented at the
suppression hearing, the trial court must make its decision based upon trial
evidence and may consider hearing evidence only if it does not conflict with
trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[14] McNeal argues that the initial search did not constitute a valid search incident
to arrest or protective sweep, the police cannot obtain a warrant “after the fact
to exploit an initial illegal warrantless entry and search,” and the admission of
the evidence was not harmless. Appellant’s Brief at 16. The State argues that
the drugs were found during a valid protective sweep and that, even if the
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protective sweep was unreasonable, the drugs were still admissible under the
inevitable discovery exception because the detectives would have applied for
the search warrant even if the protective sweep did not occur.
[15] The Fourth Amendment to the United States Constitution provides:
The right of people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated, and 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. “Though a ‘fluid concept,’ probable cause exists
when the affidavit establishes ‘a fair probability that contraband or evidence of
a crime will be found in a particular place.’” Heuring v. State, 140 N.E.3d 270,
273 (Ind. 2020) (quoting Illinois v. Gates, 462 U.S. 213, 232, 238, 103 S. Ct. 2317(1983)). “Probable cause to issue a search warrant exists where the facts and
circumstances would lead a reasonably prudent person to believe that a search
would uncover evidence of a crime.” Meister v. State, 933 N.E.2d 875, 879 (Ind.
2010). If the search is conducted without a warrant, the State bears the burden
to show that one of the well-delineated exceptions to the warrant requirement
applies. M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016).
[16] The United States Supreme Court defined a protective sweep as “a quick and
limited search of premises, incident to an arrest and conducted to protect the
safety of police officers or others. It is narrowly confined to a cursory visual
inspection of those places in which a person might be hiding.” Maryland v. Buie,
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494 U.S. 325, 327, 110 S. Ct. 1093, 1094 (1990). As an incident to arrest
officers may, “as a precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces immediately adjoining
the place of arrest from which an attack could be immediately launched.” Id. at
334, 110 S. Ct. at 1098. A search beyond those parameters is permissible only
when there are “articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to
those on the arrest scene.” Id.[17] The record reveals that McNeal was arrested on the walkway directly in front of
the house and the drugs were discovered in plain view in the front living room.
The record contains a photograph of the aerial view of the residence and front
walkway leading to the house where McNeal was apprehended, as well as
photographs of the front living room which were taken from just inside the front
door of the residence. Detective Forestal testified that the door to the residence
remained open after the females exited and before the protective sweep began.
Under these circumstances, we conclude that the State demonstrated that the
front living room was a space immediately adjoining the place of arrest from
which an attack could be immediately launched. We note that McNeal ran
back inside the house once he saw Detective Forestal, veered to the left, and
remained in the house for approximately thirty seconds to one minute.
Detective Forestal knew that McNeal was a suspect in two separate homicide
investigations, the handgun used in one of the homicides had not been
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recovered, McNeal’s nephew was also a suspect, and McNeal would likely be
with his nephew. We cannot say that the trial court erred in concluding that the
protective sweep was proper or in admitting the evidence.
[18] Further, the drugs observed in plain view during the sweep did not constitute
the sole basis upon which the probable cause affidavit in support of the search
warrant relied, 1 and they would have been inevitably and lawfully discovered in
the execution of the search warrant. Therefore, even if the protective sweep
was improper, reversal is not warranted. “[T]he inevitable discovery exception
to the exclusionary rule permits the introduction of evidence that eventually
would have been located had there been no error.” Shultz v. State, 742 N.E.2d
961, 965 (Ind. Ct. App. 2001) (quotations and citations omitted), reh’g denied,
trans. denied. “Where a search warrant is based on both legally obtained
information and information obtained in contravention to the Fourth
Amendment, we will determine the legitimacy of the warrant only in light of
the legally obtained information.” Perez v. State, 27 N.E.3d 1144, 1153 (Ind. Ct.
App. 2015) (citing Davis v. State, 907 N.E.2d 1043, 1051-1052 (Ind. Ct. App.
2009)), trans. denied. See Perez, 27 N.E.3d at 1153 (holding that, “excising from
the probable cause affidavit the information learned from” an unconstitutional
1
The probable cause affidavit signed by Detective Howard indicated that victim Robert McNeal was last
seen with McNeal and his nephew and that the victim and McNeal had a falling out and a fight; a vehicle
matching the description of the vehicle observed at the murder scene and containing three of the same
numbers on the license plate was registered to McNeal’s sister-in-law who stated that only she or McNeal
had driven the vehicle in the prior two weeks; and the owner of the residence, McNeal’s niece, had advised
that McNeal had been living with her there for the past week.
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canine sniff, the issuing magistrate still had sufficient information to make a
practical, common-sense decision that, given all the circumstances set forth in
the affidavit, there is a fair probability that evidence of a crime will be found in
a particular place, and that despite the illegal search of the defendant’s front
door in violation of the Fourth Amendment, there was enough untainted
information in the probable cause affidavit to support the issuance of the search
warrant); Shultz, 742 N.E.2d at 965 (holding that the illegal search for the VIN
was of no consequence under Fourth Amendment jurisprudence, observing that
the illegally obtained VIN was not the sole ground relied upon in the probable
cause affidavit for the search warrant, and holding that police could have
secured a warrant without the partial VIN and that the partial VIN and all the
remaining evidence would have been inevitably and lawfully discovered in the
execution of the search warrant).
[19] For the foregoing reasons, we affirm McNeal’s convictions.
[20] Affirmed.
Najam, J., and Kirsch, J. concur.
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