Mark Barnes v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 29 2018, 9:24 am
regarded as precedent or cited before any
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
Dana Childress-Jones Curtis T. Hill, Jr.
The Law Office of Dana Childress- Attorney General of Indiana
Jones, LLC
Justin F. Roebel
Indianapolis, Indiana Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Barnes, August 29, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1612-CR-2940
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese Flowers,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G20-1502-F2-6443
Robb, Judge.
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Case Summary and Issues
[1] Following a search of his home, Mark Barnes was charged with dealing in
cocaine, a Level 2 felony, and possession of cocaine, a Level 3 felony, among
other offenses. Barnes brings this interlocutory appeal of the trial court’s denial
of his motions to suppress, raising two issues for our review which we restate
as: 1) whether the trial court impermissibly shifted the burden onto Barnes to
prove that officers entered and searched his home without consent; and 2)
whether the arrest warrant which occasioned the officers’ entry into Barnes’
home was invalid because it was not signed by a judicial officer. Concluding
that the trial court did not inappropriately shift the burden of proof to Barnes to
prove lack of consent and that the officers entered Barnes’ home pursuant to a
valid arrest warrant, we affirm the trial court’s denial of Barnes’ motions to
suppress.
Facts and Procedural History
[2] On February 18, 2015, Officer Erik Forestal of the Indianapolis Metropolitan
Police Department’s Violent Crimes Unit attempted to serve an arrest warrant
for robbery on Jeffrey Ramsey at the address listed on the warrant, 3918
Graceland Avenue. Officer Forestal knocked on the door, and Zelma
Hutchins, the home’s owner, answered. Officer Forestal explained to Zelma
that he was seeking Ramsey on the outstanding robbery warrant and asked if he
was there. Zelma replied that Ramsey, who she confirmed was her great-
nephew, did not live there. She also told Officer Forestal that Ramsey was not
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in the home at that time. In Officer Forestal’s experience, people were often
untruthful when asked about the whereabouts of someone he was seeking to
serve with a warrant, so he asked Zelma if they “could come in to verify that
[Ramsey] was not inside the residence.” Franks Hearing Transcript of
Proceedings at 9. Zelma replied, “Yes, [they] could.” Id. Zelma then opened
the door for the officers and allowed them to pass.
[3] Officer Forestal asked Zelma if there was anyone else in the home, and Zelma
informed him that her daughter, Philamenia, and Barnes, her grandson, were
upstairs. Officer Forestal asked Zelma to have the other occupants of the home
come downstairs. Zelma called for Philamenia and Barnes, who both
eventually came downstairs. Two officers assisting Officer Forestal went
upstairs to look for Ramsey. Zelma’s niece, Niko1, joined the group of the
home’s occupants who were waiting in the living room for the officers to
complete their search. As the officers searched for Ramsey upstairs, Barnes told
Zelma that the officers did not have a warrant and that she should make them
exit the upstairs of the home. Barnes did not address his remarks to the officers,
and Zelma did not respond to Barnes’ remarks. Zelma did not tell the officers
that they had to leave.
[4] While searching for Ramsey upstairs, one of the assisting officers looked behind
a table with a television on it. The table and television were placed diagonally
1
This name is also spelled “Neiko” in the transcripts.
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against a corner, creating a void where the officer believed someone could hide.
The officer saw what he suspected was a bag of cocaine 2 on the floor behind the
table. The officer informed Officer Forestal that he had seen suspected cocaine
upstairs while searching for Ramsey. Officer Forestal advised the occupants of
the home that they would seek a search warrant for the home. Barnes became
agitated and stated, “This is bullsh*t!” Id. at 14. Barnes would not sit down
when directed by officers. He refused to comply when officers attempted to
handcuff him, and one of the officers deployed his taser device on Barnes.
[5] Officer Forestal submitted a sworn affidavit in support of his application for a
search warrant for the home in which he averred as follows:
Forestal explained [to Zelma] Jeffrey Ramsey had an outstanding
warrant and the address of 3918 Graceland is listed on the arrest
warrant and officers needed to make sure Ramsey was not inside.
[Zelma] agreed to let officers come in to ensure Ramsey was not
in the residence.
State’s Exhibit #1 at 5. The search warrant was granted, and the suspected
cocaine was recovered from the home.
[6] On February 18, 2015, the State charged Barnes with a number of offenses,
including dealing in cocaine and possession of cocaine. On March 12, 2015,
Barnes filed his first motion to suppress, arguing that Zelma had not given
2
The substance was later determined to be heroin. The trial court granted the State’s motion to amend the
charging information on October 12, 2016.
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consent for officers to enter her home to search. In its response, the State
argued that Barnes was seeking to suppress evidence seized pursuant to a search
warrant and that his suppression motion challenged the veracity of Officer
Forestal’s claim of consent as recited in his affidavit supporting the search
warrant request. The State sought summary dismissal of Barnes’ motion,
arguing that pursuant to Franks v. Delaware, 438 U.S. 154 (1978), such
challenges placed a preliminary evidentiary burden on the defendant to show
that the officer made false statements to procure the search warrant, a burden
which Barnes had not met in his written motion. In his written opposition to
the State’s response Barnes argued:
In addition, [Zelma] disputes that she agreed to let Forestal
inside to ensure Ramsey was not inside. Therefore, to the extent
that the State is asking Barnes to assert the information contained
in the Affidavit is false, Barnes, [sic] unequivocally asserts that
the information contained in the Affidavit is false. As a result,
and pursuant to the State’s request, Barnes is requesting a Franks
[sic] Hearing in addition to a suppressions [sic] hearing.
Appellant’s Appendix, Volume II at 43.
[7] At the May 19, 2015, hearing on Barnes’ motion, the State presented its
evidence first, which consisted of certified copies of the search warrant and
Officer Forestal’s supporting affidavit. State’s Ex. #1. Barnes objected to the
admission of the exhibit on the basis that it was invalid to support the
challenged search, but he did not object to the competency of the affidavit itself
as substantive evidence. The trial court admitted the exhibit over Barnes’
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objection. Barnes’ counsel argued that Officer Forestal failed to recite facts in
his affidavit establishing that Zelma had provided consent to enter and search
and that “there’s nowhere in this affidavit where it says a consent is given in
this case.” Motion to Suppress Transcript, Volume 2 at 12.
[8] Zelma testified at the suppression hearing that Officer Forestal did not request
permission to enter her home and that she did not give him permission to do so.
Philamenia and Barnes also testified that they did not give officers permission
to enter the home or to search. The trial court took Barnes’ motion under
advisement and set the matter for a Franks hearing on the issue of whether
Officer Forestal supplied false and misleading information regarding Zelma’s
consent to the judge who issued the search warrant.
[9] At the Franks hearing held on June 22, 2015, Officer Forestal established that he
had asked Zelma if he could enter her home to confirm that Ramsey was not
there and that she had assented. Two assisting officers who were present that
day also confirmed that Officer Forestal had sought and obtained Zelma’s
permission to enter her home to look for Ramsey. Barnes declined to present
additional evidence, as the trial court granted his counsel’s request to take
judicial notice of the prior hearing and incorporated all the testimony and
evidence presented by Barnes at the May 19 suppression hearing into the Franks
hearing. The trial court stated its intention to review all of the evidence from
both hearings before issuing its rulings, to which Barnes’ counsel responded,
“Okay.” Franks Hrg. Tr. of Proceed. at 55-56. At the conclusion of the Franks
hearing, the trial court took all matters under advisement.
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[10] On July 16, 2015, the trial court issued an order denying Barnes’ motion to
suppress, finding that the officers had a valid arrest warrant, Zelma allowed the
officers in her residence to search for Ramsey, and that the suspected cocaine
was observed in plain view while officers searched for Ramsey. Appellant’s
App., Vol. II at 56-57. The trial court also found the “law enforcement officers
credible and therefore the statements made in the Affidavit for Probable Cause
for the search warrant were not false.” Id. at 57.
[11] Barnes sought to have the trial court’s order denying his motion to suppress
certified for interlocutory appeal. The trial court denied this first request for
certification on August 6, 2015. On June 15, 2016, Barnes filed a second
motion to suppress and to certify his suppression issues for interlocutory appeal.
A hearing was held on June 28, 2016, after which the trial court denied both
motions. In response to a specific discovery request, the State supplied Barnes
with a copy of the Ramsey arrest warrant. The arrest warrant was not signed
by a judicial officer. On October 11, 2016, Barnes filed a combined renewed
motion to suppress and motion to dismiss in which he reasserted his previous
grounds for suppression and additionally challenged the validity of the arrest
warrant on the basis that it was invalid having not been signed by a judicial
officer. A hearing was held on Barnes’ motions on October 12, 2016, at which
the trial court admitted into evidence certified copies of the Criminal Probable
Cause Warrant Sheet and the robbery arrest warrant pertaining to Ramsey.
Second Supplemental Exhibit Volume, Volume I at 3-4. The Probable Cause
Warrant Sheet was signed by a judicial officer and indicated that probable cause
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was found to arrest Ramsey. Id. at 3. The Warrant Sheet bore the hearing date
of January 14, 2015, and was issued under Cause Number 49G02-1501-F3-
001370, the same case number shown on the arrest warrant. Id. at 3-4. The
trial court denied Barnes’ suppression and dismissal motion on October 18,
2016. On November 14, 2016, Barnes filed a third motion seeking to certify the
trial court’s October 18 order for interlocutory appeal which the trial court
granted. We accepted jurisdiction over this appeal on January 27, 2017.
Discussion and Decision
I. Consent to Enter and Search
[12] Barnes argues that the trial court erred in denying his motion to suppress
because the trial court impermissibly placed a burden on him to prove lack of
consent. Specifically, Barnes contends that, because the State failed to present
live officer testimony at the hearing on his first motion to suppress to prove that
Zelma3 consented to the officers’ entry and the search of her home, the trial
court should have ruled in his favor without taking further evidence or
considering other issues. Barnes argues that “[r]ather than grant [Barnes’]
Motion to Suppress as the result of the State’s failure to meet its burden, the
3
Although three other people in addition to Zelma were present in the home when officers entered, neither
the State nor Barnes suggest that anyone other than Zelma provided consent to enter and search.
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trial court compounded its error by conducting a Franks [sic] hearing.”
Appellant’s Brief at 14.
A. Standard of Review
[13] It is well-settled that we review a trial court’s denial of a motion to suppress
under a standard similar to other sufficiency issues, namely without reweighing
the evidence and by determining if there is substantial evidence of probative
value that supports the trial court’s decision. McIlquham v. State, 10 N.E.3d 506,
511 (Ind. 2014). We consider the evidence favorable to the trial court’s ruling
as well as substantial uncontradicted evidence to the contrary to decide whether
the evidence is sufficient to support the ruling. Id. The ultimate ruling on the
constitutionality of a search is a legal conclusion that we review de novo. Id.B. The Suppression and Franks Hearings
[14] The suppression litigation in this matter began when Barnes filed an initial
motion in which he argued that the officers’ entry and search of Zelma’s home
violated his Fourth Amendment4 rights because Zelma had not provided
consent. The Fourth Amendment protects persons from unreasonable search
and seizure. U.S. Const. amend. IV. A warrantless search or seizure inside a
4
Barnes also claims the challenged evidence should have been suppressed because the State failed to show
that the search was reasonable under Article 1, Section 11, of the Indiana Constitution. Appellant’s Br. at 16.
Barnes does not develop this argument with relevant case law or citations to the record, and, therefore, he has
waived the issue. See Crabtree v. State, 762 N.E.2d 217, 220 (Ind. Ct. App. 2002) (holding that failure to
develop a separate state constitutional argument results in waiver of the claim).
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home is presumptively unreasonable unless it is subject to one of a few
established and well-delineated exceptions. Bradley v. State, 54 N.E.3d 996, 999
(Ind. 2016). A voluntary and knowing consent to search is one such well-
recognized exception to the warrant requirement. Id. The State has the burden
of proving that this exception to the warrant requirement existed at the time of
the search. Id. Therefore, we agree with Barnes that the State had the burden
of proof to establish Zelma’s consent in order to prevail on Barnes’ suppression
claim.
[15] In response to Barnes’ initial suppression motion, the State filed a dismissal
motion based on Franks v. Delaware. In that case the Supreme Court held that
where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and [was] necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at
the defendant’s request.
438 U.S. at 155-56. The State argued that Barnes’ suppression motion
challenged Officer Forestal’s assertion that Zelma had provided consent as
averred in the affidavit supporting his request for a search warrant. We agree
with the State that, pursuant to Franks, Barnes had a preliminary burden of
proof to show that Officer Forestal’s averments were false and were knowingly,
intentionally, or recklessly included in the warrant affidavit. Barnes’ response
to the State was to confirm that he was challenging the affidavit and to request a
Franks hearing. Appellant’s App., Vol. II at 43.
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[16] Thus, by the time of the hearing on Barnes’ suppression motion, both his
suppression claim and the Franks issue were before the trial court. At the
suppression hearing, the trial court took the State’s evidence first, which
consisted of a certified copy of Officer Forestal’s search warrant affidavit which
was admitted as substantive evidence. Barnes then presented his evidence
which consisted of the testimony of Zelma, Philamenia, and Barnes. At the
close of the hearing, the trial court took Barnes’ suppression claim under
advisement. The trial court also determined that Barnes had made the requisite
preliminary Franks showing and that an additional hearing was required on the
Franks issue. The trial court later held a Franks hearing at which three officers
presented their testimony, and the trial court incorporated Barnes’ evidence
from the prior suppression hearing.
[17] The trial court conducted two hearings in which evidence was presented that
was relevant to both Barnes’ suppression claim and the Franks issue, after which
it issued its order addressing both. Barnes’ argument that the trial court was
required to rule in his favor after the initial suppression hearing because the
State did not present any live officer testimony to carry its burden of proof on
his suppression claim is unpersuasive for at least two reasons. The State
presented substantive evidence at the suppression hearing in the form of a
certified copy of the Officer Forestal search warrant affidavit. State’s Ex. #1.
Barnes does not cite to, and we are unaware of, any authority mandating that
the State present live witness testimony at a suppression hearing. In addition,
the trial court was not required to rule on Barnes’ suppression claim at the close
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of the suppression hearing. Barnes does not direct us to, and we are unaware
of, any authority for his apparent proposition that a trial court may not
entertain multiple issues at the same hearing or that it may not hold more than
one hearing on an issue. We find no evidence in the record that the trial court
directed Barnes to prove lack of consent or that the trial court misunderstood
the parties’ respective evidentiary burdens.
[18] Furthermore, at Barnes’ request, at the Franks hearing the trial court took
judicial notice of the evidence presented at the suppression hearing, which was
proper. See Horton v. State, 51 N.E.3d 1154, 1160-61 (Ind. 2016) (noting that
Indiana Evidence Rule 201(b)(5) now allows courts to take judicial notice of
“records of a court of this state,” including its own records). When the trial
court stated its intention to review all the evidence from both hearings before
issuing its rulings, Barnes’ counsel did not object. We conclude that the trial
court properly had the combined evidence of both hearings upon which to base
its order denying Barnes’ suppression motion and that it did not impermissibly
shift the State’s evidentiary burden onto Barnes.
C. Sufficiency of the Evidence
[19] In a related argument, Barnes also contends there was no evidence supporting
the denial of his motion to suppress. Although this argument is not well
developed, we briefly address the evidence supporting the trial court’s order
denying Barnes’ motion to suppress as it related to Zelma’s consent. Barnes’
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principle attack5 on the sufficiency of the evidence is that Zelma simply did not
say the things attributed to her by Officer Forestal, and so our review of the
evidence will be through that lens.
[20] Here, the trial court concluded that Zelma “answered the front door for law
enforcement officers and they were allowed in the residence to search for
Jeffrey Ramsey.” Appellant’s App., Vol. II at 56. The evidence supporting the
trial court’s conclusion was that Officer Forestal explained to Zelma when she
answered the door that he was seeking Ramsey on an outstanding robbery
warrant and asked if he was there. Zelma replied that Ramsey did not live there
and that he was not there at that time. Officer Forestal wanted to confirm that
Ramsey was not in the residence, so he asked Zelma if they could come in to
verify that Ramsey was not inside. Zelma agreed, opened the door for the
officers, and allowed them to pass.
[21] Once inside, Officer Forestal asked Zelma to have anyone else in the home
come downstairs. Zelma called for Philamenia and Barnes, who both
eventually came downstairs. Two officers assisting Officer Forestal went
upstairs to look for Ramsey. Zelma did not tell the officers they could not go
upstairs. Zelma never told the officers that they had to leave. Thus, Zelma
5
Barnes raises two additional one-sentence arguments, citing to Steagald v. United States, 451 U.S. 204 (1981)
and Bumper v. North Carolina, 391 U.S. 543 (1968). Appellant’s Br. at 16. Barnes fails to develop these
arguments with cogent reasoning or citations to the record, and, thus we do not address them. See Ind.
Appellate Rule 46(A)(8)(a); see also Smith v. State, 822 N.E.2d 193, 203-04 (Ind. Ct. App. 2005) (holding that
party waives any issue raised on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record), trans. denied.
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expressly assented to the officers’ entry into her home to search for Ramsey, she
never limited the scope of that search, and she never told officers that they must
stop searching. Zelma did call the other occupants of the home to come
downstairs which was further evidence that she acquiesced to the officers’
search of the upstairs of her home.
[22] In support of his argument that Zelma did not give consent, Barnes directs us to
evidence that does not support the trial court’s suppression order. This
argument is unpersuasive given our standard of review. McIlquham, 10 N.E.3d
at 511. The fact that it may have been uncontested that officers did not
expressly ask to search upstairs and Zelma did not provide express consent to
do so does not change the result here, as it was not necessary for Zelma to
provide express consent for us to uphold the trial court’s determination. See
Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008) (consent search upheld
absent express consent to search where Rush allowed officers to enter home,
never limited the scope of their search, and acquiesced in the search by
accompanying officers through home). We conclude that the trial court’s
denial of Barnes’ motion to suppress was supported by substantial probative
evidence.
II. The Arrest Warrant
[23] Barnes also contends that the trial court’s suppression order must be reversed
because the officers’ entry was made pursuant to an invalid arrest warrant.
Barnes’ specific allegation is that the arrest warrant was invalid because it was
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not signed by a judicial officer and, thus, should be deemed “nonexistent.”
Appellant’s Br. at 17.
[24] However, in Smith v. State, 562 N.E.2d 428, 429-30 (Ind. Ct. App. 1990), we
held that the signature of the judge issuing a search warrant is a ministerial act
the lack of which is not fatal if the judge found the required probable cause to
issue the warrant. Although Smith dealt with the validity of an unsigned search
warrant, as opposed to an unsigned arrest warrant, we see no reason why the
precedent of Smith would not apply equally to an arrest warrant, as both are
issued after a judicial officer’s finding of probable cause. Compare Ind. Code §
35-33-5-1(a) (search warrant requirements) with Ind. Code § 35-33-2-1(c) (arrest
warrant requirements).
[25] Here, it is undisputed that the Ramsey arrest warrant was not signed by the
issuing judicial officer. Second Supp. Ex. Vol., Vol. I at 4. However, the
Warrant Sheet for the arrest warrant was admitted into evidence which showed
that the judicial officer found that probable cause existed to arrest Ramsey for
robbery. Id. at 3. This probable cause determination was signed by the issuing
judicial officer, and the cause number on the Warrant Sheet matched that
provided on the arrest warrant. Id. at 3-4. Because the evidence showed that
the judicial officer who issued the arrest warrant had found probable cause for
the arrest, the fact that the judge did not sign the arrest warrant itself did not
render it invalid. Smith, 562 N.E.2d at 429.
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[26] Moreover, Timmons v. State, 723 N.E.2d 916 (Ind. Ct. App. 2000), trans. denied,
relied upon by Barnes for his claim of error, Appellant’s Br. at 17, is factually
distinguishable. The telephonic arrest warrant in that case was issued in near
total derogation of the statutory procedures and was not simply lacking a
signature by the issuing judicial officer. Timmons, 723 N.E.2d at 920. Here, the
officers’ initial entry was made pursuant to a valid arrest warrant. Thus, we
uphold the trial court’s denial of Barnes’ motions to suppress.
Conclusion
[27] Concluding that the trial court did not shift the burden of proof to Barnes to
demonstrate lack of consent and that the officers’ initial entry was made
pursuant to a valid arrest warrant, we affirm.
[28] Affirmed.
Najam, J., and Altice, J., concur.
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