Kenneth Lee Neville, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 25 2017, 6:23 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Lee Neville, Jr., July 25, 2017
Appellant-Defendant/Cross-Appellee, Court of Appeals Case No.
49A02-1606-CR-1447
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff/Cross-Appellant. James Kevin Snyder,
Judge Pro Tempore
Trial Court Cause No.
49G20-1410-F3-49424
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 1 of 28
[1] Following a jury trial, Kenneth Lee Neville, Jr. (“Neville”) was convicted of
Level 3 felony dealing in a narcotic drug,1 Level 4 felony unlawful possession of
a firearm by a serious violent felon,2 Level 5 felony possession of a narcotic
drug,3 and Class C misdemeanor operating a motor vehicle without ever
receiving a license,4 and he was adjudicated to be a habitual offender.5 The trial
court vacated Neville’s convictions for unlawful possession of a firearm by a
serious violent felon and for possession of a narcotic drug based on double
jeopardy concerns. Neville appeals and raises the following two restated issues:
I. Whether the trial court abused its discretion when it admitted
evidence obtained during a traffic stop of a vehicle Neville was
driving without a license; and
II. Whether the State presented sufficient evidence to convict
him of dealing in a narcotic drug.
The State cross-appeals and raises the following restated issue:
III. Whether the trial court erred when it vacated Neville’s
conviction for unlawful possession of a firearm by a serious
violent felon.
1
See Ind. Code § 35-48-4-1(a)(2).
2
See Ind. Code § 35-47-4-5(c).
3
See Ind. Code 35-48-4-6(a).
4
See Ind. Code § 9-24-18-1.
5
See Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 2 of 28
[2] We affirm.
Facts and Procedural History
[3] Around 7:30 p.m. on October 23, 2014, Indianapolis Metropolitan Police
Department Detective Sergeant Brady Ball (“Detective Ball”) was seated in his
marked police vehicle, surveilling a home associated with an individual named
Joey Milton (“Milton”), who was a person of interest in a homicide
investigation. Detective Ball was parked several blocks away from the home
and observed the home through binoculars. Detective Ball saw two men who
generally fit Milton’s physical description, along with a female and three
children, get into a car parked in the driveway at the residence and drive away.
Detective Ball followed the vehicle.
[4] Detective Ball attempted to check the license plate of the vehicle, a Lincoln, but
there was a tinted cover over the paper license plate, and he could not see the
expiration date or some of the letters or numbers on the license plate due to the
tinting and because it was nighttime and headlights bounced off the plate. At
some point, Detective Ball’s car was stopped behind the Lincoln at an
intersection, and he attempted to run a computer search on what he thought
were the letters and numbers on the Lincoln’s license plate but found that he
did not have the correct letters and numbers in his search. Because the license
plate was not visible, Detective Ball initiated a traffic stop of the Lincoln, which
pulled into a gas station, and Detective Ball pulled in behind it. Detective Ball
exited his vehicle and when he was about five or six feet from the Lincoln, he
could see the license plate and he radioed it to dispatch. He then walked to the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 3 of 28
Lincoln and made contact with the driver, Neville, and noted to Neville and the
occupants that he stopped the Lincoln because it had a tinted cover on the
license plate, making it not visible. In the front passenger seat was Neville’s
girlfriend, Amanda Lee (“Lee”), and in the back seat was Milton, who is
Neville’s brother. Three minor children were also in the car.
[5] Detective Ball asked Neville for his driver’s license, and Neville responded that
he did not have one and had never applied for one, but he provided Detective
Ball with an identification card. Detective Ball learned that Lee and Milton
also did not possess a driver’s license. Neville and Lee told Detective Ball that
the car belonged to Lee. Lee explained that she had purchased the car recently
and that it had come from the dealer with the tinted plate cover. Detective Ball
asked Neville to step out of the vehicle. Detective Ball showed Neville the
tinted plate cover, and at Detective Ball’s instruction, Neville sat on the back
bumper of the Lincoln as Detective Neville returned to his police vehicle.
[6] Detective Ball conducted a search on the information he had received and
confirmed that Neville never had a license and that Milton was the person that
the Violent Crimes Unit was investigating for a homicide. Detective Ball
confirmed that the license plate belonged to a vehicle owned by Lee and was
registered to her at the address Detective Ball had been surveilling. Detective Ball
asked for backup officers.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 4 of 28
[7] After backup officers arrived, Detective Ball handcuffed Neville’s hands behind
his back.6 In the process of removing items from Neville’s pockets, Detective
Ball felt the exterior of Neville’s pants in the pockets and crotch area, and he
detected lumps that Detective Ball believed to be “dope.” Tr. Vol. III at 703;
State’s Ex. 2 at 16:03. After advising Neville that he was going to retrieve the
lumps that he had felt, Detective Ball reached down the front of Neville’s pants
and pulled from under his scrotum area and in his underwear a package of what
he at that time believed to be a package of cocaine and a package of heroin.
During this time, Neville protested that Detective Ball was in his pants, and
stated that he felt violated and that Detective Ball was violating his
constitutional rights. Neville suggested that Detective Ball had no authority to
search him and asked repeatedly why it was necessary for Detective Ball to
touch him, stating, “You stopped me for driving.” Detective Ball replied, “I
did, and I’m arresting you for driving.” State’s Ex. 2 at 18:36.
[8] Detective Ball placed the narcotics on the trunk of the Lincoln, and he then
looked inside the vehicle and popped open an armrest on the driver’s side door
and found a loaded handgun. Neville told Detective Ball that it was not his car,
and he did not know the gun was there. Detective Ball told Neville, “You’re
going to jail,” read him his Miranda rights, and told Neville that he was under
6
At or near this time, other officers removed Milton from the car and handcuffed him.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 5 of 28
arrest. Id. at 23:33-24:47. Neville’s wallet contained $1,243 in cash. Police
seized the cash and towed the vehicle.
[9] In October 2014, the State charged Neville with Count I, dealing in a narcotic
drug while in possession of a firearm, a Level 3 felony; Count II, unlawful
possession of a firearm by a serious violent felon, a Level 4 felony; Count III,
possession of a narcotic drug and a firearm, a Level 5 felony; and Count IV,
operating a motor vehicle without ever receiving a license, a Class C
misdemeanor. In March 2016, the State added a habitual offender count.
[10] In March 2016, Neville filed a Motion to Suppress – Traffic Stop (“Motion to
Suppress”), alleging that the traffic stop violated his rights under the Fourth
Amendment and Article I, Section 11 of the Indiana Constitution.7 Neville
contended that the search of his person and the vehicle were not valid because
(1) the stop was not valid, and (2) he was not arrested until after the searches, so
the searches were not incident to his arrest.
[11] At a hearing on the Motion to Suppress, Detective Ball acknowledged that the
traffic stop was “pretextual” and was related to the residence, as he had been
surveilling the home and watched the two men get in the vehicle and leave. Tr.
Vol. III. at 689. He also testified that the license plate had a tinted cover, it was
dark outside, and he could not read the license plate until he was out of his
vehicle and standing five or six feet from it at the gas station. He testified that
7
Neville also filed a Motion to Suppress Statements, which he later withdrew.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 6 of 28
Neville was driving the car, that he did not have, and had never had, a driver’s
license, and that no adult in the car had a driver’s license. Detective Ball
testified that after getting Neville’s identification, he returned to his police car
and called dispatch with the information. He stated that he decided to arrest
Neville for operating a motor vehicle without a license, and he requested back
up assistance.
[12] During Detective Ball’s testimony at the hearing, the State presented an audio
recording of the traffic stop, taken by Detective Ball (the Audio Recording”).
State’s Ex. 2. When the assisting officers arrived, Detective Ball can be heard
telling them that Neville was “arrestable” and that he intended to “hook him
up,” meaning arrest him, to gain access to the car. State’s Ex. 2 at 14:39-42; Tr.
Vol. III at 743. Detective Ball can be heard instructing Neville to face the
Lincoln and place his hands on the truck, and handcuffing sounds are audible.
Detective Ball stated that he felt lumps, not part of Neville’s body, and he
advised Neville that he was going to retrieve what he felt. The tape reveals
Neville’s repeated protests of Detective Ball’s search of him and Detective Ball’s
responses. Later, Detective Ball told Lee that her car was going to be towed,
and Lee stated that she did not know about the drugs or the handgun and that
they did not belong to her.
[13] Detective Ball testified that, in searching Neville, he reached down the front of
Neville’s pants, not the back of Neville’s pants as Neville alleged, and he
retrieved the bag of what he believed to be narcotics and placed them on the
trunk of the Lincoln. He then looked in the Lincoln and found inside the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 7 of 28
driver’s side door armrest a handgun. He told Neville that he was under arrest
and read the Miranda rights to him.
[14] Defense called several witnesses at the hearing: Lee; Neville’s sister, Kentia
Neville (“Kentia”), who arrived at the scene during the search, and Neville.
Lee videotaped with her cell phone some of the search, which happened at the
back of the Lincoln, from her position in the front seat of the car. That video
was admitted into evidence over the State’s objection. Defense Ex. C. Kentia
testified that she saw Neville being searched when she arrived at the gas station.
[15] The trial court issued an order, denying the motion to suppress:
1. The Defendant was stopped and detained as a result of a valid
traffic stop on October 23, 2014.
2. Detective Sergeant Brady Ball followed a tan Lincoln vehicle
driven by Defendant and attempted to run the temporary paper
plate affixed to the rear of the vehicle; however, Detective
Sergeant Ball, who testified under oath, was unable to read the
numbers or expiration date on the paper plate due to a tinted
plate cover obstructing his view.
3. That this obstruction violated I.C. 9-18-2-26 and gave
Detective Sergeant Ball a valid reason to stop the vehicle, despite
the admitted pretextual nature of the stop.
4. Despite the absence of averments in Defendant’s Motion to
Suppress-Traffic Stop alleging an unlawful search of Defendant’s
person, the parties agreed to hear further evidence during the
May 17, 2016, hearing as to the validity of the search of
Defendant’s person following the traffic stop.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 8 of 28
5. Upon validly stopping the tan Lincoln, the Defendant was
found in the driver’s seat and had never received a driver’s
license; this gave Detective Sergeant Ball probable cause to arrest
Defendant for a crime.
6. Therefore, the subsequent search of Defendant’s person was
lawful incident to his arrest for that crime.
7. Thus, any and all items seized from the Defendant’s person are
admissible into evidence.
Appellant’s App. Vol. II at 91-92. The trial court also denied Neville’s motion to
reconsider.
[16] Neville re-asserted his motion to suppress Neville’s statements prior to the start
of trial. During the course of trial, Neville objected to the admission of
evidence arising from the alleged illegal traffic stop and unconstitutional
searches. The trial court overruled the objections and renewed its denial of the
motion to suppress evidence from the traffic stop. Tr. Vol. I at 171. When the
State attempted to introduce the gun found during the search of the Lincoln, the
trial court conducted a supplemental suppression hearing outside the presence
of the jury, and the trial court again denied Neville’s motion to suppress. Tr.
Vol. II at 276, 303.
[17] Forensic testimony was presented that the bags retrieved from Neville during
the traffic stop contained 4.16 grams of heroin and 24.29 grams of Doxylamine,
an anti-histamine that is often used to “cut” controlled substances. Tr. Vol. I at
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 9 of 28
220-21, 229; Tr. Vol. II at 350-51; State’s Exs. 16, 17, 18. Neville’s DNA was
found on the gun. Tr. Vol. II at 396.
[18] The jury found Neville guilty on Counts I through IV. Neville waived his right
to have a jury determine his status as a serious violent felon and habitual
offender. After hearing evidence, the trial court found Neville to be a serious
violent felon and a habitual offender. Based on the jury’s finding that Neville
unlawfully possessed a firearm, the trial court found Neville committed
possession of a firearm by a serious violent felon. Tr. Vol. III at 615. At the
sentencing hearing, the trial court vacated the conviction for possession of a
firearm by a serious violent felon, due to double jeopardy concerns.8 Id. at 671;
Appellant’s App. Vol. II at 22-25. It imposed an eleven-year sentence for dealing
in a narcotic drug, enhanced by ten years for the habitual offender finding, and
a concurrent sixty-day sentence for operating a vehicle without ever receiving a
license. Neville now appeals.
Discussion and Decision
I. Admissibility of Evidence
[19] Neville claims that the traffic stop and ensuing searches violated his federal and
state constitutional rights and that the trial court erred when it denied his
motion to suppress and, thereafter, admitted into evidence the items found
8
The trial court also vacated Neville’s conviction for possession of a narcotic drug, as a lesser-included
offense of the dealing conviction. Tr. Vol. III at 671. The trial court’s decision to vacate the possession
conviction is not at issue in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 10 of 28
during the searches. Because Neville’s case proceeded to trial, where he
renewed his objection to the admissibility of the seized evidence, his appeal “is
better framed as a request to review the trial court’s ruling on its admissibility.”
Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). A trial court has broad
discretion to rule on the admissibility of the evidence. Jarrell v. State, 818
N.E.2d 88, 91 (Ind. Ct. App. 2004), trans. denied. We review its rulings “for
abuse of that discretion and reverse only when admission is clearly against the
logic and effect of the facts and circumstances, and the error affects a party’s
substantial rights.” Guilmette, 14 N.E.3d at 40. When an appellant’s challenge
to such a ruling is predicated on an argument that impugns the constitutionality
of the search or seizure of the evidence, it raises a question of law, and we
consider that question de novo. Id. at 40-41 (citing Kelly v. State, 997 N.E.2d
1045, 1050 (Ind. 2013)).
[20] Neville claims that the traffic stop was illegal and that all evidence arising from
that stop was inadmissible, and “[e]ven if the traffic stop was not illegal, the
searches and seizures were.” Appellant’s Br. at 17. He raises claims under the
Fourth Amendment and Article I, Section 11 of the Indiana Constitution. The
purpose of the Fourth Amendment is to protect the privacy and property
interests of individuals from unreasonable searches and seizures. Rush v. State,
881 N.E.2d 46, 50 (Ind. Ct. App. 2008). The protections of the Fourth
Amendment have been extended to the states through the Fourteenth
Amendment. Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App. 2012),
trans. denied. Evidence obtained in violation of a defendant’s Fourth
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 11 of 28
Amendment rights may not be introduced against him at trial. Id. A traffic
stop is a seizure under the Fourth Amendment, so police must possess
reasonable suspicion that a traffic law has been violated or other criminal
activity is taking place. Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003).
Generally, a search or seizure may only be conducted pursuant to a lawful
warrant. Wilson, 966 N.E.2d at 1263. Because warrantless searches are per se
unreasonable, the State bears the burden of establishing that a warrantless
search falls within one of the well-delineated exceptions to the warrant
requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind. Ct. App. 2002), trans.
denied. A search incident to arrest is one such exception. Black v. State, 810
N.E.2d 713, 715 (Ind. 2004).
[21] Notwithstanding the textual similarity of Article I, Section 11 of the Indiana
Constitution to that of the federal Fourth Amendment, Section 11 is interpreted
separately and independently from Fourth Amendment jurisprudence. State v.
Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008). Our Supreme Court has
explained:
The purpose of [Section 11] is to protect those areas of life that
Hoosiers consider private from unreasonable police activity. The
Indiana Constitution may protect searches that the federal
Constitution does not. Section 11 should be applied to protect
people from unreasonable search and seizure. When police
conduct is challenged as violating this section, the burden is on
the State to show that the search was reasonable under the
totality of the circumstances. The determination of the
reasonableness of a search and seizure under the Indiana
Constitution turns on a balance of: 1) the degree of concern,
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 12 of 28
suspicion, or knowledge that a violation has occurred, 2) the
degree of intrusion the method of search or seizure imposes on
the citizen’s ordinary activities, and 3) the extent of law
enforcement needs.
Id. (citations and quotation omitted).
A. Traffic Stop
[22] Indiana Code section 9-18-2-26 requires license plates to be displayed in a
position so as to be “clearly visible,” “maintained free from foreign materials
and in a condition to be clearly legible,” and “not obstructed or obscured by . . .
accessories, or other opaque objects.” Ind. Code § 9-18-2-26(b)(3)-(5). Indiana
Code section 9-32-6-11(f) imposes the same requirements on temporary license
plates.
[23] Detective Ball testified that he followed the Lincoln for a mile or more to the
gas station and could not clearly see the letters and numbers and the expiration
date on the plate due to the tinted plate cover, which no one disputes was on
the Lincoln. Detective Ball stated that at one point he attempted to conduct a
license plate search, somewhat guessing at the letters or numbers, but the search
was unsuccessful, since he did not have the correct information. The record
before us indicates that the tinted cover of the Lincoln’s license plate
contravened the requirements of Indiana Code section 9-18-2-26. Therefore,
Detective Ball was entitled to stop the Lincoln. See State v. Quirk, 842 N.E.2d
334, 340 (Ind. 2006) (police officers may stop vehicle when they observe minor
traffic violations).
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 13 of 28
[24] Neville contends that the traffic stop was illegal because, although Detective
Ball stopped the vehicle for the tinted plate, his stop was pretextual, as his
intention was to stop the vehicle and speak to Milton, who was being
investigated for homicide. As Neville, acknowledges, pretextual stops are not
per se unreasonable, but are subject to greater scrutiny. See Turner v. State, 862
N.E.2d 695, 700 (Ind. Ct. App. 2007). Neville’s claim, at its core, is that
Detective Ball’s testimony, regarding his inability to view the plate’s
information, was not credible. Neville notes that Detective Ball acknowledged
that he could read the plate when he was out of his vehicle and walking to the
Lincoln and that a picture taken by the evidence technician at the scene,
admitted as Defendant’s Exhibit A, illustrates that the plate was visible.
However, both of those circumstances are from the vantage point of a person
standing five or so feet from the car, and thus not the same conditions as
Detective Ball, or anyone else, driving behind the Lincoln. Neville also
suggests that Detective Ball was not credible, given that he conceded that he
was surveilling the house and followed the car intending to stop it if he saw a
traffic violation, in order to speak to Milton. Neville’s arguments are a request
for us to reweigh the evidence, which we may not do on appeal. Lundquist v.
State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Furthermore, our courts
have recognized that there is “nothing unreasonable in permitting an officer,
who may have knowledge or suspicion of unrelated criminal activity . . . to
nevertheless respond to an observed traffic violation.” Mitchell v. State, 745
N.E.2d 775, 787 (Ind. 2001); see also Herron v. State, 991 N.E.2d 165, 170-71
(Ind. Ct. App. 2013) (officers are permitted to stop vehicle when they observe
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 14 of 28
traffic infraction, even if officers have independent motive of furthering
unrelated criminal investigation), trans. denied; Jackson v. State, 785 N.E.2d 615,
619 (Ind. Ct. App. 2003) (if there is objectively justifiable reason for traffic stop
then stop is valid “whether or not the police officer would have otherwise made
the stop but for the ulterior suspicions or motives”), trans. denied. We find that,
here, the traffic stop was constitutional under both the Fourth Amendment and
Article I, Section 11.
B. Searches
[25] Neville next contends that even if the stop was valid, the search of Neville, and
then the car, were not. He claims that the searches violated both the Fourth
Amendment and Article I, Section 11 of the Indiana Constitution. We address
each constitutional argument in turn.
[26] Incident to a lawful arrest, police “may conduct a warrantless search of the
arrestee’s person.” Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000).
An arrest is lawful if it is supported by probable cause. Fentress v. State, 863
N.E.2d 420, 423 (Ind. Ct. App. 2007)). “The amount of evidence necessary to
meet the probable cause requirement for a warrantless arrest incident to a
lawful arrest, is determined on a case-by-case basis, and is less than the level of
proof necessary to establish guilt beyond a reasonable doubt.” Ross v. State, 844
N.E.2d 537, 542 (Ind. Ct. App. 2006).
[27] Here, Neville does not deny that his act of driving without a license gave
Detective Ball probable cause to arrest him for that offense. Rather, Neville’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 15 of 28
claim is that Detective Ball did not arrest him until after Detective Ball had
retrieved the drugs from Neville’s underwear, and thus the search was not
incident to his arrest. We disagree. Detective Ball handcuffed Neville, emptied
Neville’s pockets, and felt two large lumps in his groin that Detective Ball
believed was not Neville’s body, but was, instead, “dope.” Tr. Vol. III at 703;
State’s Ex. 2 at 16:03. Detective Ball advised Neville, “I’m gonna get the dope
out of your pants.” State’s Ex. 2 at 16:07. When Neville expressed to Detective
Ball that he did not have the authority to retrieve the drugs, Detective Ball
stated, “I’m arresting you for driving.” State’s Ex. 2 at 18:36.
[28] Neville notes that it was after taking the drugs from Neville’s underwear and
after finding the gun that Detective Ball told Neville, “You’re going to jail,”
read Miranda rights to Neville, and stated “You’re under arrest.” State’s Ex. 2 at
23:22-24:46. He argues that, therefore, Detective Ball did not arrest Neville
until after he seized the items, and, consequently, the search was not incident to
arrest, or, stated differently, the search preceded the arrest. However, the
Audio Recording reveals that Detective Ball advised Neville that he was going
to retrieve the drugs from Neville’s pants, and in response to Neville’s protests
that Detective Ball did not have the authority to do so, Detective Ball told
Neville, “I’m arresting you for driving.” State’s Ex. 2 at 18:36.
[29] Moreover, as Neville acknowledges, “[O]fficers do not need to inform an
accused that he is under arrest for him to actually be under arrest[.]” Appellant’s
Br. at 28 (citing Fentress, 863 N.E.2d at 423). as “the determination of whether
a defendant is under lawful arrest depends on whether the officer has probable
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 16 of 28
cause to arrest the person.” Appellant’s Br. at 28 (citing Fentress, 863 N.E.2d at
423). Under Indiana law, “‘So long as probable cause exists to make an arrest,
the fact that a suspect was not formally placed under arrest at the time of the
search incident thereto will not invalidate the search.’” Sebastian v. State, 726
N.E.2d 827, 830 (Ind. Ct. App. 2000) (quoting Santana v. State, 679 N.E.2d
1355, 1360 (Ind. Ct. App. 1997)), trans. denied. Probable cause for an arrest
exists if at the time of the arrest the officer has knowledge of facts and
circumstances which would warrant a man of reasonable caution to believe the
suspect has committed the criminal act in question. Fentress, 863 N.E.2d at 420.
On appeal, Neville claims that he “was not under arrest at the time of the
search of his person because no reasonable man would believe he had
committed the traffic offense of which he had been accused.” Appellant’s Br. at
29. We are not persuaded, as it is undisputed that Neville was driving a vehicle
with a tinted license plate cover, which Detective Ball testified prevented him
from viewing the plate’s information, and Neville was driving the car without
ever having a license. Detective Ball had probable cause for an arrest, and
although Neville suggests that Detective Ball’s goal was to further investigate
Milton regarding a murder, Detective Ball’s subjective desire to do so does not
invalidate Neville’s arrest. We find Detective Ball’s conduct was a valid search
incident to arrest and did not violate the Fourth Amendment.9
9
Neville also claims that the search of the Lincoln was “equally unconstitutional,” explaining that because
the discovery of the drugs occurred during an illegal search, there was no probable cause for a warrantless
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 17 of 28
[30] Neville also asserts that the search was invalid under the Indiana Constitution.
As stated, the legality of a search under the Indiana Constitution “turns on an
evaluation of the police conduct under the totality of the circumstances.”
Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Neville argues that
Detective Ball used the traffic stop as a pretext to further an investigation of
Milton, handcuffed Neville, searched him, and “only later advised Neville that
he was being arrested[.]” Appellant’s Br. at 34. Neville also argues that the
search of Neville’s person and genital area was “intrusive” and substantial, and
that the minor driving offenses were not significant and did not justify Detective
Ball’s actions, arguing, “The record contains no evidence as to why such
extreme measures were needed simply to ask Milton questions.” Id. at 35.
Therefore, he claims, the circumstances of the search were unreasonable under
the Indiana Constitution. We disagree.
[31] After learning that Neville did not possess a driver’s license, nor did any of the
adult occupants, Detective Ball asked Neville to step out of the car. Detective
Ball handcuffed Neville, checked Neville’s pockets, and detected large lumps in
Neville’s front crotch area, which he recognized as not being part of Neville’s
body and which he suspected to be “dope.” He told Neville that he was going
to remove the suspected drugs, and Neville said he would remove it himself, a
proposition that Detective Ball declined. Neville asserted to Detective Ball that
search of the vehicle. Appellant’s Br. at 31. Because we find that the drugs were discovered in a valid search
incident to arrest, the officers had probable cause to search the vehicle.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 18 of 28
he did not have authority to search Neville and go into his pants, to which
Detective Ball stated, “I’m arresting you for driving.” State’s Ex. 2 at 18:36.
Under Indiana law, probable cause for a lawful arrest supports a “full search” of
the arrested person for weapons or concealed evidence. Garcia v. State, 47
N.E.3d 1196, 1200 (Ind. 2016). An intrusive search to secure and identify an
unknown physical object discovered on an arrestee is not unreasonable,
“provided that it is not extreme or patently abusive.” Edwards v. State, 759
N.E.2d 626, 629 (Ind. 2001). We reject Neville’s claims that Detective Ball did
not give any indication of arrest until after he had retrieved the drugs and that
the record does not indicate any need to search him. Appellant’s Br. at 35. We
also find that the search was not unduly intrusive, where the evidence most
favorable to the verdict is that Detective Ball while wearing a glove reached into
the front of Neville’s pants and retrieved a baggie from inside Neville’s
underwear and in his groin area, and Neville’s genitals were not exposed. We
find that under the totality of circumstances the search of Neville was not
unreasonable and did not violate the protections of the Indiana Constitution.
[32] Accordingly, for the reasons set forth above, the trial court did not abuse its
discretion when it admitted the evidence obtained during the search of Neville
and the car he was driving.
II. Sufficiency of the Evidence
[33] Neville asserts that the evidence was not sufficient to convict him of dealing in a
narcotic drug. Our standard of review with regard to sufficiency claims is well
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 19 of 28
settled. In reviewing a sufficiency of the evidence claim, this court does not
reweigh the evidence or judge the credibility of the witnesses. Wilson, 966
N.E.2d at 1265. We consider only the evidence most favorable to the verdict
and the reasonable inferences drawn therefrom and affirm if the evidence and
those inferences constitute substantial evidence of probative value to support
the verdict. Id. A conviction may be based upon circumstantial evidence alone.
Id. The evidence need not be sufficient to overcome every reasonable
hypothesis of innocence. Craig v. State, 730 N.E.2d 1262, 1266 (Ind. 2000). We
affirm a conviction if the probative evidence and reasonable inferences drawn
from that evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144,
147 n.4 (Ind. 2007).
[34] To convict Neville of Level 3 felony dealing in a narcotic drug as charged, the
State was required to prove that he knowingly possessed between one and five
grams of heroin with the intent to deliver the heroin while in possession of a
firearm. Ind. Code §§ 35-48-4-1(a)(2), 35-48-1-16.5. Neville’s argument, in
addition to the claim that the heroin and firearm were illegally seized and
wrongfully admitted at trial, is that there was insufficient evidence that he
intended to deliver the drug. Id. at 40-41. A conviction for possession of a drug
with intent to deliver it may be supported by either direct or circumstantial
evidence. Wilson, 966 N.E.2d at 1266. Intent involves a person’s state of mind,
and a factfinder may infer its existence from the surrounding circumstances. Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 20 of 28
[35] Under Indiana law, “possessing a large amount of a narcotic substance is
circumstantial evidence of intent to deliver,” which supports the inference that
the person intended to deliver it and not consume it personally. Davis v. State,
791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied. Detective Gregory
Kessie (“Detective Kessie”) a narcotics investigator with Indianapolis
Metropolitan Police Department, who has been involved in thousands of
narcotics investigations, testified to the differences between what users are often
found with as opposed to dealers. He stated that users often just carry small
amounts of money, enough to purchase a small amount of heroin, such as .10
grams for $10 or .20 grams for $20, and the narcotics found on the user are thus
packaged in small amounts, whereas the dealer generally has narcotics
packaged in bulk fashion, and they carry larger amounts of cash. Tr. Vol. II at
348-49. He testified that, in his experience, he had not encountered a person
who possessed four grams of heroin strictly for personal use. Id. at 361. He
also explained that the slang term “cut” means a powdered substance which
can be mixed with the pure narcotics in order to “stretch the product” and make
more money and that a person who was strictly a user would want a pure
product and have no reason to want to dilute it. Id. at 350-51. Detective Kessie
indicated that a cutting agent could be any powdered substance that could be
made to appear similar in consistency to the illegal substance and could include
baby formula, muscle powder, or antihistamine. He testified that users, as
opposed to dealers, often are found to carry paraphernalia used to ingest the
drugs. Tr. Vol. II at 347. Detective Kessie also stated that it was common for a
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 21 of 28
narcotics dealer to carry a firearm, to protect their product or themselves. Id. at
349.
[36] Neville urges that police found “no tools of the drug trade” such as scales,
plastic baggies, ledgers, or multiple cell phones, either on him or in the Lincoln.
Appellant’s Br. at 41. However, the substances that Detective Ball found on
Neville were over four grams of heroin and twenty-four grams of Doxylamine,
a legal antihistamine. The police also found a handgun in the armrest of the
driver’s side door, where Neville was seated, and he had over $1200 in his
wallet. The handgun was found to have his DNA on it. As the State points
out, no paraphernalia that would be used to ingest the heroin was found on
Neville or in the Lincoln, the absence of which could have been used to infer
dealing rather than using the drugs. See O’Neal v. State, 716 N.E.2d 82, 90 (Ind.
Ct. App. 1999) (evidence sufficient to infer intent to deal narcotics where
defendant, who was searched after being arrested in course of traffic stop, was
found in possession of relatively large quantity of drugs, handgun, and $1,128
in cash, but not in possession of items associated with dealing such as pager,
scales, or transaction notes), trans. denied. Based on the record before us, we
find that the evidence presented at trial was sufficient from which the jury could
have inferred that Neville intended to deliver the heroin.
III. Serious Violent Felon Conviction
[37] The State asserts as a cross-appeal the claim that the trial court erred when it
vacated Neville’s conviction for unlawful possession of a firearm by a serious
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 22 of 28
violent felon (“UPFSVF”) and that the conviction should be reinstated. Neville
maintains that the trial court properly vacated his UPFSVF conviction because,
otherwise, he would be punished multiple times for the same act, which is
prohibited under Indiana law.10
[38] “The double jeopardy clause . . . of the Indiana Constitution ‘was intended to
prevent the state from being able to proceed against a person twice for the same
criminal transgression.’” Duncan v. State, 23 N.E.3d 805, 814 (Ind. Ct. App.
2014) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)), trans. denied.
Conviction of two or more offenses violates the double jeopardy clause of the
Indiana Constitution “if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Calvert v. State, 930 N.E.2d 633, 641 (Ind. Ct. App. 2010)
(quoting Richardson, 717 N.E.2d at 49) (emphasis in original). Under the actual
evidence test, the defendant must show that the evidentiary facts establishing
the elements of one offense also establish all of the elements of the second
offense. Vandergriff v. State, 812 N.E.2d 1084, 1086 (Ind. Ct. App. 2004) (citing
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)), trans. denied. “[E]ven if ‘each
10
Neville asserts, as a preliminary matter, that the State was not permitted to pursue the cross-appeal claim
because vacating a conviction is not expressly identified in Indiana Code section 35-38-4-2 as a matter that
the State may appeal, and he asks us to not consider the cross-appeal. The State responds that, under Indiana
law, it may challenge by way of cross-appeal an erroneous sentencing decision – here, an alleged “erroneous
refusal to impose a conviction and sentence on a lawful jury verdict[.]” State’s Reply Br. at 5. We agree with
the State that it may pursue their cross-appeal of the trial court’s sentencing decision, and we address the
cross-appeal on its merits.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 23 of 28
charge utilizes the same factual event,’ no constitutional violation will be found
if the second offense ‘requires additional evidentiary facts establishing the
essential elements.’” Vandergriff, 812 N.E.2d at 1086-87.
[39] Here, the State charged Neville in Count I with Level 3 dealing in a narcotic
drug and in Count II with Level 4 unlawful possession of a firearm as a serious
violent felon. To convict Neville of dealing in a narcotic drug as charged, the
State was required to prove that Neville (1) knowingly possessed between one
and five grams of heroin, (2) with the intent to deliver, (3) while in possession of
a firearm. Ind. Code §§ 35-48-4-1(a)(2), 35-48-1-16.5. With respect to the
charge of unlawful possession of a firearm by a serious violent felon, the State
was required to prove that Neville was (1) a serious violent felon, (2) who
knowingly or intentionally, (3) possessed a firearm. See Ind. Code § 35-47-4-
5(c).
[40] The State argues, and Neville does not appear to disagree, that his convictions
on Counts I and II do not violate either the actual evidence test or the statutory
elements test, and, therefore, there was no constitutional double jeopardy
violation under Richardson. However, Neville correctly observes that “[e]ven
where no constitutional violation has occurred, multiple convictions may
nevertheless violate the ‘rules of statutory construction and common law that
are often described as double jeopardy, but are not governed by the
constitutional test set forth in Richardson.’” Appellant’s Reply Br. at 16-17;
Vandergriff, 812 N.E.2d at 1088 (quoting Pierce v. State, 761 N.E.2d 826, 830
(Ind. 2002)). That is, our courts have recognized that, in addition to
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 24 of 28
constitutional double jeopardy, other categories of double jeopardy based on
statutory construction and common law prohibit multiple convictions or
punishments for the same crime. Calvert, 930 N.E.2d at 642 (citing Guyton v.
State, 771 N.E.2d 1141, 1143 (Ind. 2002)).
[41] As explained by our colleague in Vandergriff, “these rules fall under broader
categories set forth by Justice Sullivan in his concurring opinion in Richardson”
and include the following:
(1) “Conviction and punishment for a crime which is a lesser-
included offense of another crime for which the defendant has
been convicted and punished;” (2) “Conviction and punishment
for a crime which consists of the very same act as another crime
for which the defendant has been convicted and punished;” (3)
“Conviction and punishment for a crime which consists of the
very same act as an element of another crime for which the
defendant has been convicted and punished;” (4) “Conviction
and punishment for an enhancement of a crime where the
enhancement is imposed for the very same behavior or harm as
another crime for which the defendant has been convicted and
punished;” and (5) “Conviction and punishment for the crime of
conspiracy where the overt act that constitutes an element of the
conspiracy charge is the very same act as another crime for which
the defendant has been convicted and punished.”
812 N.E.2d at 1088 (citing Richardson, 717 N.E.2d at 55-56 (Sullivan, J.,
concurring)).
[42] Here, Neville maintains that the trial court did not err when it vacated his
UPFSVF conviction because his UPFSVF conviction and his dealing while in
possession of a firearm conviction were based upon the same act or the “very
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 25 of 28
same behavior” – namely the presence of the handgun in the car he was driving.
This court faced a similar situation in Calvert v. State, where Calvert was
convicted for possessing a firearm as a serious violent felon and possessing a
sawed-off shotgun. 930 N.E.2d at 642. The Calvert court found that the two
convictions “were established by proof of one and the same act: his
constructive possession of the sawed-off shotgun in the vehicle he was driving,”
and that even if the convictions did not amount to constitutional double
jeopardy, “Calvert’s convictions fall under the common law category of double
jeopardy” that proscribes “[c]onviction and punishment for a crime which
consists of the very same act as an element of another crime for which the
defendant has been convicted and punished.” 930 N.E.2d at 642 (emphasis in
original). Because “Calvert’s conviction of possessing a sawed-off shotgun was
based on the very same act—his having the sawed-off shotgun in his vehicle—
which formed an essential element of possession of a firearm by a serious
violent felon[,]” this court reversed and remanded with instruction to vacate
that conviction and sentence.11 Id. at 642-43.
11
In reaching its decision, the Calvert court discussed Alexander v. State, 772 N.E.2d 476, 479 (Ind. Ct. App.
2002), trans. denied, where the court determined that convictions for unlawful possession of a firearm by a
serious violent felon and carrying a handgun without a license violated the actual evidence test of the Indiana
double jeopardy analysis and constituted double jeopardy. See also Jarrell v. State, 818 N.E.2d 88, 93 (Ind. Ct.
App. 2004) (convictions for possession of firearm by serious violent felon and carrying a handgun without a
license violated double jeopardy principles, where evidence of constructive possession of handgun found
under seat during traffic stop was used to prove essential element of possession of firearm by serious violent
felon and all essential elements of carrying a handgun without a license.)
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 26 of 28
[43] In support of its position that the UPFSVF should be reinstated, the State cites
to Guyton v. State, among other cases. In Guyton, the defendant was convicted
of both murder and carrying a handgun without a license. 771 N.E.2d at 1143.
Our Supreme Court found no double jeopardy violation because “‘[c]arrying
the gun along the street was one crime and using it was another.’” Id. (quoting
Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001)). We find that Guyton is
distinguishable, because, here, as in Calvert, Neville’s constructive possession of
the handgun in the Lincoln was used to convict him for multiple offenses.
[44] In this case, Neville’s charge for dealing in a narcotic drug was elevated from a
Level 4 to a Level 3 based on the allegation that Neville possessed a firearm. In
Duncan, a defendant’s resisting law enforcement conviction was elevated from
Class A misdemeanor to Class D felony based on an allegation that he “drew or
used a deadly weapon” while fleeing. 23 N.E.3d at 817. On appeal, Duncan
asserted that his convictions of attempted battery by means of a deadly weapon,
resisting law enforcement, and pointing a firearm violated double jeopardy
principles under the actual evidence test. The Duncan court recognized that
“[e]ven if we assume there is no double jeopardy violation under the actual-
evidence test, . . . ‘we have long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy, but
are not governed by the constitutional test set forth in Richardson,’” one of
which prohibits “[c]onviction and punishment for an enhancement of a crime
where the enhancement is imposed for the very same behavior or harm as
another crime for which the defendant has been convicted and punished.” 23
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 27 of 28
N.E.3d at 817 (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)).
It continued, “Thus, if we determine that Duncan was convicted and punished
for the enhancement of resisting law enforcement based on the same behavior
or harm that forms the basis of his attempted battery by means of a deadly
weapon conviction, a double jeopardy violation has occurred.” Id. The Duncan
court determined that a double jeopardy violation had occurred in that case
because the defendant was convicted and punished for the enhancement of
resisting law enforcement based on “the very same act” – i.e., he fired a gun at
the officer – that formed the basis of his attempted battery by means of deadly
weapon conviction. Id. at 818. The Duncan court vacated the defendant’s
resisting law enforcement conviction based on drawing or using a deadly
weapon and reduced that conviction to a Class A misdemeanor. Id. at 819.
[45] We conclude that Neville was convicted and punished for the enhancement of
dealing in a narcotic drug based on the same behavior or harm that forms the
basis of his UPFSVF conviction, having a handgun in the car. We find that the
trial court did not err when it vacated Neville’s UPFSVF conviction.12
[46] Affirmed.
Mathias, J., and Altice, J., concur.
12
Neville alternatively asserts that it was not error for the trial court to vacate his UPFSVF conviction
because the State failed to prove that he is the same person identified in the documents as having been
convicted of robbery and thus failed to present sufficient evidence that he was a serious violent felon.
Because we resolve the issue on other grounds, we do not reach Neville’s sufficiency argument.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1447 | July 25, 2017 Page 28 of 28