Andrece Tigner v. State of Indiana ( 2020 )

FILED
Mar 18 2020, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John F. Crawford Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrece Tigner, March 18, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1478
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G20-1901-F2-3574
May, Judge
[1] Andrece Tigner appeals the trial court’s order denying his motion to suppress.
He raises two issues on appeal, but we find one to be dispositive and restate it
as: whether the search of Tigner incident to his arrest was supported by
probable cause as required by the Fourth Amendment to the United States
Constitution. We reverse and remand.
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Facts and Procedural History 1
[2] In January 2019, Jill Jones, a Marion County Community Corrections law
enforcement liaison, received an e-mail indicating that Isiah Williams, an
individual on home detention, tampered with his monitoring device, tried to
alter his drug screen, and used illegal narcotics. Jones and Officer Scott Nickels
of the Indianapolis Metropolitan Police Department (“IMPD”) conducted a
home visit at Williams’ address. Jones knocked numerous times on Williams’
door and heard movement behind the door. Eventually, someone inside the
residence asked who was at the door, and Jones indicated she was with
community corrections. Williams opened the door, and Officer Nickels
smelled the odor of marijuana coming from Williams’ apartment.
[3] Jones and Officer Nickels both entered the house. Jones could see another
adult in the apartment’s bedroom. She directed everyone to come into the
living room. Williams’ brother and Tigner walked out of the bedroom. Tigner
did not live at the apartment and was visiting Williams at the time of the
search. Tigner was holding Williams’ young son as he left the apartment’s
bedroom. Jones went to the kitchen because she had heard movement in that
area of the house after knocking on the door. Jones opened a cupboard and
discovered a firearm.
1
We heard oral argument in this case on January 28, 2020, at Ivy Tech Community College in Columbus.
We commend counsel for their advocacy and thank Ivy Tech’s faculty, staff, and students for their
attendance.
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[4] Officer Tiffany Wren entered the residence after Jones and Officer Nickels. She
conducted a protective sweep and observed raw marijuana on the dining room
table. After discovery of the gun and marijuana, officers obtained a search
warrant for the apartment. In executing the warrant, officers discovered several
hundred grams of marijuana in a duffel bag in a storage closet located off the
apartment’s patio. The officers also found pills that were not prescribed to
Williams, scales, and “roaches.” 2 (Tr. Vol. II at 15.)
[5] Officer Wren was told “two of the three were going.” (Id. at 40.) 3 Officer Wren
interpreted this to mean that Tigner and Williams were to be arrested and put in
the police wagon. Accordingly, Officer Wren conducted a search incident to
arrest of Tigner. In Tigner’s pants pockets, she discovered over a thousand
dollars in United States currency, pills, and two key fobs. Officer Nickels took
one of the key fobs, went out onto the apartment building landing, and hit the
lock button on the key fob, which activated the lights and horn of a minivan in
the parking lot.
[6] Detective Gary Hadden arrived on the scene with a police dog. The animal
sniffed the van and alerted, indicating the presence of drugs. Officer Wren
applied for a search warrant to search the vehicle, and the court granted the
2
“Roach” is a slang term for “the remains of a smoked marijuana cigarette.” The Online Slang Dictionary.
http://onlineslangdictionary.com/meaning-definition-of/roach [https://perma.cc/99TZ-UFPJ].
3
Officer Wren testified she did not remember which officer told her Tigner was going in the police wagon.
Officer Nickels testified he told Officer Wren that Tigner and Williams were being arrested.
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warrant. Officers searched the vehicle and discovered marijuana, synthetic
marijuana, crack cocaine, heroin, scales, and plastic sandwich bags.
[7] The State charged Tigner with Level 2 felony dealing in cocaine, 4 Level 3
felony possession of cocaine, 5 Level 2 felony dealing in a narcotic drug, 6 Level 4
felony possession of a narcotic drug, 7 Level 6 felony dealing in a synthetic drug
or synthetic drug lookalike substance, 8 Class A misdemeanor possession of a
synthetic drug or synthetic drug lookalike substance, 9 Level 6 felony possession
of marijuana, 10 and Level 6 felony possession of a narcotic drug. 11 On May 22,
2019, Tigner filed a motion to suppress. The trial court held a hearing on
Tigner’s motion and denied the motion. Tigner moved to certify the order for
interlocutory appeal, and the trial court granted his motion. We accepted
jurisdiction on July 26, 2019.
Discussion and Decision
4
Ind. Code § 35-48-4-1.
5
Ind. Code § 35-48-4-6.
6
Ind. Code § 35-48-4-1.
7
Ind. Code § 35-48-4-6.
8
Ind. Code § 35-48-4-10.5.
9
Ind. Code § 35-48-4-11.5.
10
Ind. Code § 35-48-4-11.
11
Ind. Code § 35-48-4-6.
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[8] Our standard for reviewing the denial of a motion to suppress is like the
standard we employ in other sufficiency determinations. Johnson v. State, 21
N.E.3d 841, 843 (Ind. Ct. App. 2014), trans. denied.
We determine whether substantial evidence of probative value
exists to support the court’s denial of the motion. We do not
reweigh the evidence, and we consider conflicting evidence most
favorably to the trial court’s ruling. However, unlike other
sufficiency matters, we must also consider the uncontested
evidence that is favorable to the defendant.
Id. (internal citations omitted). Nonetheless, when the denial of a motion to
suppress concerns the constitutionality of a search or seizure, that conclusion is
a pure question of law that we review de novo. Robinson v. State, 5 N.E.3d 362,
365 (Ind. 2014).
A. Fourth Amendment to United States Constitution
[9] The Fourth Amendment to the United States Constitution states:
The right of the 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.
The Amendment protects citizens from search or seizure absent a warrant
supported by probable cause. Durstock v. State, 113 N.E.3d 1272, 1276-77 (Ind.
Ct. App. 2018), trans. denied. However, there are several exceptions to the
warrant requirement. Id. at 1277. The State bears the burden of proving that
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an exception to the warrant requirement applies for evidence obtained during a
warrantless search to be admissible at trial. Id.
[10] “One exception to the warrant requirement is the search incident to arrest,
which permits ‘a search of the arrestee’s person and the area within his or her
control.’” Id. at 1278 (quoting Clark v. State, 994 N.E.2d 252, 261 n.10 (Ind.
2013)). The area within the arrestee’s control signifies the area from which the
arrestee might gain possession of a weapon or destroy evidence. Stark v. State,
960 N.E.2d 887, 889 (Ind. Ct. App. 2012), trans. denied. An officer may
conduct a search incident to arrest if the officer has probable cause to make an
arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied.
[11] “Probable cause for an arrest exists if at the time of the arrest the officer has
knowledge of facts and circumstances that would warrant a person of
reasonable caution to believe that the suspect has committed the criminal act in
question.” K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). Probable
cause exists “when the totality of the circumstances establishes ‘a fair
probability’—not proof or a prima facie showing—of criminal activity,
contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 582 (Ind.
2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (emphasis added). We
review the determination of probable cause de novo, and an officer’s subjective
belief regarding whether probable cause existed has no legal effect. K.K., 40
N.E.3d at 687.
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[12] At the suppression hearing, Officer Nickels testified that at the time Officer
Wren conducted her search, Tigner was being arrested for visiting a common
nuisance. A person commits the crime of visiting a common nuisance by
“knowingly or intentionally” visiting a “building, structure, vehicle, or other
place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35-
45-1-5. Tigner argues the police did not have probable cause to arrest him for
visiting a common nuisance at that time because there was no evidence
Williams’ apartment was a place where “continuous or recurrent prohibited
activity [took] place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App.
2018). 12
[13] The State argues evidence of the apartment being a place of repeated drug use
can be inferred from the facts that the apartment belonged to Williams and that
community corrections arrived at Williams’ apartment based on information
that Williams was using drugs. However, the plain language of the common
nuisance statute requires that the visitor know the apartment was being used for
the consumption, manufacture, or sale of illegal drugs. A visitor may not know
the person he is visiting is subject to community corrections or that law
enforcement suspects the person has recently used drugs.
12
A prior version of the common nuisance statute required that a building be used for a prohibited activity
only once for it to be considered a common nuisance, but the General Assembly amended the statue in 2016
out of “a conscious desire on the part of our Legislature that the common nuisance statute not be applied to
isolated instances of prohibited activity.” Leatherman, 101 N.E.3d at 884 (emphasis in original).
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[14] Further, the State contends Tigner’s presence as a visitor in Williams’
apartment, combined with the evidence discovered during the search of the
apartment, shows a fair probability Tigner knew the apartment was regularly
used for the consumption or sale of illegal drugs. However, the duffel bag
containing hundreds of grams of marijuana was found inside a closet that a
visitor would not be able to readily observe. The smell of burnt marijuana and
a small amount of marijuana in plain view would denote to a visitor an isolated
instance of drug use, but it does not show the apartment was being used on a
continuous basis for the distribution or consumption of marijuana. Thus, the
officers lacked probable cause to arrest Tigner for visiting a common nuisance
at the time Officer Wren conducted her search incident to arrest. See
Leatherman, 101 N.E.3d at 884 (holding there was insufficient evidence to
support conviction for maintaining a common nuisance when the State failed to
prove the defendant’s vehicle was used on more than one occasion for the sale
of an illegal substance).
[15] The State also argues there was probable cause to arrest Tigner for possession of
marijuana. It is illegal for a person to knowingly or intentionally possess
marijuana. Ind. Code § 35-48-4-11. In order to commit the offense of
possession of marijuana, the arrestee must have either actual possession or
constructive possession of marijuana. Matter of J.L., 599 N.E.2d 208, 212 (Ind.
Ct. App. 1992), trans. denied.
[16] Constructive possession requires the individual have both the intent and the
capability to maintain dominion and control over the illegal substance. Id. A
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person’s “mere presence where drugs are located or his association with persons
who possess drugs is not alone sufficient to support a finding of constructive
possession.” Id. The intent to maintain dominion and control over an illegal
substance can be inferred from “proof of a possessory interest in the premises
on which illegal drugs are found” because “the law infers that the party in
possession of the premises is capable of exercising dominion and control over
all items on the premises.” Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).
However, the law takes a different view when applying the intent
prong of constructive possession. When a defendant’s possession
of the premises on which drugs are found is not exclusive, then
the inference of intent to maintain dominion and control over the
drugs ‘must be supported by additional circumstances pointing to
the defendant’s knowledge of the nature of the controlled
substances and their presence.’ Lampkins, 682 N.E.2d at 1275.
The ‘additional circumstances’ have been shown by various
means: (1) incriminating statements made by the defendant, (2)
attempted flight or furtive gestures, (3) location of substances like
drugs in settings that suggest manufacturing, (4) proximity of the
contraband to the defendant, (5) location of the contraband
within the defendant’s plain view, and (6) the mingling of the
contraband with other items owned by the defendant. Henderson
v. State, 715 N.E.2d 833, 836 (Ind. 1999).
Id. at 341.
[17] Here, Tigner did not have an exclusive possessory interest in the apartment. He
did not live there. See Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2009)
(holding visitor to property had no interest in the property searched and
therefore could not challenge the constitutionality of the search), trans. denied.
He was visiting Williams’ apartment at the time of the community corrections
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visit. The State argues Tigner was close enough to the marijuana found in plain
view that his capability to maintain dominion and control over the contraband
may be inferred. However, at the time of the search incident to arrest, officers
knew Tigner was in an apartment where marijuana had been consumed, but
marijuana was not found in the bedroom where Tigner was located when
officers entered the apartment. Thus, Tigner did not constructively possess the
marijuana found in plain view because he was not in proximity to it, there is no
evidence Williams’ apartment was used for the manufacture of drugs, Tigner
did not make any incriminating statements, nor were items he owned
intermingled with contraband. Therefore, officers lacked probable cause to
arrest Tigner for possession of marijuana at the time Officer Wren conducted
the search incident to arrest. See Hardister v. State, 849 N.E.2d 563, 574 (Ind.
2006) (holding visitor did not constructively possess firearms when the visitor
was arrested in house’s attic and guns were found in the house’s basement and
living room). Officer Wren’s search of Tigner incident to Tigner’s arrest
violated Tigner’s Fourth Amendment rights against unlawful search and
seizure. 13
Conclusion
13
Since the key fob was found in the search incident to an illegal arrest, the drugs found as a result of the key
fob being used should also be suppressed as fruit of the poisonous tree. See Esquerdo v. State, 640 N.E.2d
1023, 1030 (Ind. 1994) (holding evidence gathered during illegal warrantless entry into home as well as
evidence gathered pursuant to later issued search warrant was inadmissible).
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[18] The search of Tigner incident to arrest was unconstitutional because the officers
lacked probable cause to arrest Tigner for a crime as required by the Fourth
Amendment. Therefore, we reverse the trial court’s denial of Tigner’s motion
to suppress and remand for further proceedings consistent with this opinion.
[19] Reversed and remanded.
Baker, J., and Bailey, J., concur.
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