Zachary J. Taylor v. State of Indiana

FILED
Mar 22 2019, 8:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew W. Foster Curtis T. Hill, Jr.
The Law Office of Andrew W. Foster, Attorney General of Indiana
LLC
Rockport, Indiana Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zachary J. Taylor, March 22, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1757
v. Appeal from the Spencer Circuit
Court
State of Indiana, The Honorable Jon A. Dartt,
Appellee-Plaintiff Judge
Trial Court Cause No.
74C01-1801-F4-12
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 1 of 14
[1] Zachary J. Taylor appeals his convictions of Level 5 felony possession of
methamphetamine 1 and Level 6 felony possession of marijuana. 2 Taylor argues
the search of his apartment violated his rights against illegal search and seizure
under the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. We affirm.
Facts and Procedural History 3
[2] On January 5, 2018, Rockport Police Officer Shon Shourds responded to an
anonymous tip of drug activity at Taylor’s apartment. Officer Shourds drove by
the location and did not see any suspicious activity. After a second anonymous
call reporting drug activity at Taylor’s apartment, Officer Shourds contacted
Police Chief Kyle Maldonado, who directed Officer Shourds to go to Taylor’s
apartment to “do a knock and talk.” (Tr. Vol. II at 132.) Chief Maldonado met
Officer Shourds there and accompanied him to Taylor’s apartment door.
[3] Officers heard voices from inside Taylor’s apartment as they approached. The
door had a window, which was covered with blinds, with the exception of a few
inches at the bottom of the window. Before knocking, Officer Shourds “peeked
through or glanced through” the gap under the blinds, (id. at 49), and saw
1
Ind. Code § 35-48-4-6.1(b) (2014).
2
Ind. Code § 35-48-4-11(c) (2017).
3
We held oral argument in this case on February 21, 2019, at Vincennes University. We thank the
University for its hospitality and counsel for their able presentations.
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 2 of 14
Taylor and a female who was holding a small, cylindrical glass pipe used to
consume tobacco or illegal substances. Officer Shourds testified he had to
“adjust his body” to see through the gap. (Id.) Officer Shourds did not knock
on the door. Instead the officers returned to the parking lot to obtain a search
warrant.
[4] While the officers were in the parking lot pursuing the search warrant, they saw
Taylor and the woman exit Taylor’s apartment and go separate directions.
Officer Shourds recognized Taylor, exited the patrol car, and asked Taylor if he
knew the woman’s name. Taylor told Officer Shourds the woman was Angela
Stokes and gave him Stokes’ address. Officer Shourds proceeded to Stokes’
nearby apartment.
[5] Officer Shourds knocked on Stokes’ door, and she answered. He asked if he
could speak with her, and she agreed. Officer Shourds told Stokes she was
going to jail because he had observed her smoking methamphetamine at
Taylor’s apartment. During the conversation, Stokes gave Officer Shourds a
smoking device similar to the one he saw her holding in Taylor’s apartment, as
well as multiple pills she claimed Taylor had given her to sell. Officer Shourds
arrested Stokes.
[6] While the officers were still waiting for the search warrant, Taylor returned to
his apartment. Officers were concerned that Taylor would destroy evidence in
the apartment, so they would not let Taylor enter his apartment. Taylor
became angry, but eventually calmed down and left. Officers received the
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 3 of 14
search warrant shortly thereafter, and Taylor returned to his apartment while
officers were in the process of searching it. Other officers had arrived at the
scene in the intervening moments and detained Taylor.
[7] In Taylor’s apartment, officers found methamphetamine, marijuana, and a
digital scale. Officers arrested Taylor. The State charged Taylor with Level 5
felony dealing in a narcotic drug, 4 Level 6 felony possession of
methamphetamine, 5 Level 6 felony maintaining a common nuisance, 6 Level 6
felony dealing in marijuana, 7 and Class A misdemeanor possession of
marijuana. 8 The State subsequently amended the charging information and
added charges of Level 4 felony dealing in a narcotic drug, 9 Level 5 felony
possession of methamphetamine, 10 Level 6 felony dealing in marijuana, 11 and
Class B misdemeanor possession of marijuana. 12
[8] On April 2, 2018, Taylor filed a motion to suppress the evidence found in his
apartment, alleging the search of his apartment violated his Fourth Amendment
4
Ind. Code § 35-48-4-1(a) (2017).
5
Ind. Code § 35-48-4-6.1(a) (2014).
6
Ind. Code § 35-45-1-5(c) (2017).
7
Ind. Code § 35-48-4-10(c) (2016).
8
Ind. Code § 35-48-4-11(b) (2017).
9
Ind. Code § 35-48-4-1(c) (2017).
10
Ind. Code § 35-48-4-6.1(b) (2014).
11
Ind. Code § 35-48-4-10(c) (2017).
12
Ind. Code § 35-48-4-11(a) (2017).
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 4 of 14
and Article 1, Section 11 rights against illegal search and seizure. He argued
the evidence obtained as part of the search of his apartment was fruit of the
poisonous tree because Officer Shourds conducted an illegal warrantless search
when he repositioned his body to look in the gap between the blinds covering
Taylor’s door window and the edge of the window. The trial court held a
hearing on Taylor’s motion to suppress on April 13, 2018, and denied it on
May 1, 2018.
[9] The trial court held Taylor’s jury trial on May 9, 2018. During trial Taylor
continued his objection to the admission of the evidence found in his
apartment. The jury returned guilty verdicts on Level 6 felony possession of
methamphetamine, Level 6 felony maintaining a common nuisance, and Class
B misdemeanor possession of marijuana. Taylor subsequently pled guilty to
having prior convictions that enhanced two of those convictions to Level 5
felony possession of methamphetamine and Level 6 felony possession of
marijuana. The trial court vacated the maintaining a common nuisance
conviction due to double jeopardy concerns. On June 14, 2018, the trial court
sentenced Taylor to an aggregate sentence of fourteen years, with one year
suspended to probation.
Discussion and Decision
[10] The trial court denied Taylor’s pre-trial motion to suppress evidence, and
Taylor made timely objections to the admission of evidence at trial. Because
Taylor appeals following his conviction, rather than from the trial court’s order
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 5 of 14
denying his motion to suppress, the question before us is properly framed as
whether the trial court abused its discretion in admitting the evidence. Shell v.
State, 927 N.E.2d 413, 418 (Ind. Ct. App. 2010).
[11] Admission of evidence at trial is left to the discretion of the trial court. Clark v.
State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its determinations for an
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. Id. at 260. We will not reweigh evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Marcum v. State,
843 N.E.2d 546, 547 (Ind. Ct. App. 2006). We also consider uncontested
evidence favorable to the defendant. Id. The record must disclose substantial
evidence of probative value that supports the trial court’s decision. Gonser v.
State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006). The trial court’s ruling will be
upheld if it is sustainable on any legal theory supported by the record, even if
the trial court did not use that theory. Id.
Fourth Amendment
[12] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by prohibiting such searches
without a warrant supported by probable cause. To deter State actors from
violating that prohibition, evidence obtained in violation of the Fourth
Amendment generally is not admissible in a prosecution of the citizen whose
right was violated. Clark, 994 N.E.2d at 260. The State has the burden of
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 6 of 14
demonstrating the admissibility of evidence collected during a seizure or search.
Id.
[13] The threshold issue here is whether Officer Shourds’ actions while in the
curtilage of Taylor’s apartment was an illegal search in violation of the Fourth
Amendment. When approaching Taylor’s apartment to complete a knock and
talk, Officer Shourds heard voices. He noticed there was a gap under the blinds
covering Taylor’s door window. Officer Shourds leaned over and peered
through the gap to see Taylor and Stokes. Taylor argues Officer Shourds’ act of
peering through the gap in the blinds was an illegal search under the Fourth
Amendment. To support his argument, he cites Florida v. Jardines, 569 U.S. 1
(2013).
[14] In Jardines, police received a tip that Jardines was growing marijuana in his
home. Police took a drug-sniffing dog to the residence, and the dog alerted for
the presence of marijuana while on Jardines’ porch. Based thereon, police
obtained a search warrant to search Jardines’ house, where they found
marijuana plants. The State charged Jardines with marijuana trafficking, and
Jardines filed a motion to suppress the evidence against him, which the trial
court granted. The State appealed all the way to the United States Supreme
Court, which granted certiorari to answer “the question of whether the officers’
behavior was a search within the meaning of the Fourth Amendment.” Id. at 5.
[15] The Court first considered the limits of a person’s right of privacy in his home
and curtilage. At the Fourth Amendment’s “‘very core’ stands the ‘right of a
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 7 of 14
man to retreat into his own home and there be free from unreasonable
governmental intrusion.’” Id. at 6 (quoting Silverman v. United States, 365 U.S.
505, 511 (1961)). The Court noted:
This right would be of little practical value if the State’s agents
could stand in a home’s porch or side garden and trawl for
evidence with impunity; the right to retreat would be significantly
diminished if the police could enter a man’s property to observe
his repose from just outside the front window.
Id. at 6. Curtilage is the area “immediately surrounding and associated with the
home . . . [and is] part of the home itself for Fourth Amendment purposes.” Id.
(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).
[16] Whether an officer’s actions in the curtilage of a person’s home amount to a
Fourth Amendment search hinges on whether the officer’s actions comply with
an implicit or explicit license to enter from the residence’s occupant. Id. at 7.
The Court stated, regarding an implicit license to enter the curtilage of a
person’s home:
We have accordingly recognized that “the knocker on the front
door is treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers and peddlers
of all kinds.” This implicit license typically permits the visitor to
approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer)
leave. Complying with the terms of that traditional invitation
does not require fine-grained legal knowledge; it is generally
managed without incident by the Nation’s Girl Scouts and trick-
or-treaters. Thus, a police officer not armed with a warrant may
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 8 of 14
approach a home and knock, precisely because that is “no more
than any private citizen might do.”
Id. at 8 (internal citations omitted). However, the Court explained,
introducing a trained police dog to explore the area around the
home in hopes of discovering incriminating evidence is
something else. There is no customary invitation to do that. An
invitation to engage in canine forensic investigation assuredly
does not inhere in the very act of hanging a knocker. To find a
visitor knocking on the door is routine (even if sometimes
unwelcome); to spot that same visitor exploring the front path
with a metal detector, or marching his bloodhound into the
garden before saying hello and asking permission, would inspire
most of us to - well, call the police. The scope of a license—
express or implied - is limited not only to a particular area but
also to a specific purpose. Consent at a traffic stop to an officer’s
checking out an anonymous tip that there is a body in the trunk
does not permit the officer to rummage through the trunk for
narcotics. Here, the background social norms that invite a visitor
to the front door do not invite him there to conduct a search.
Id. at 9. The Jardines Court determined the use of a drug-sniffing dog in the
curtilage of a private residence constituted a search under the Fourth
Amendment. Id. at 11-12.
[17] Jardines is distinguishable. In the case before us, Officer Shourds approached
Taylor’s front door to perform a knock and talk, which Officer Shourds
described as “we were just going to go to Mr. Taylor’s residence and speak with
him. Tell him the allegations that had come in through dispatch and see if he
would let us do a search of the property.” (Tr. Vol. II at 28-9.) This activity is
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 9 of 14
akin to that described in Jardines, wherein the Court recognized an implicit
license to enter the curtilage of a person’s home, which “permits the visitor to
approach the home by the front path, knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave.” Jardines, 569 U.S.
at 8. However, Officer Shourds’ actions did not rise to the level intrusion found
to violate the Fourth Amendment in Jardines.
[18] Instead, Officer Shourds did what a girl scout or a trick of treater who
approached the door in the same manner would – briefly observe the activity
inside the apartment clearly visible from the front door window. The record
does not suggest he lingered or attempted to peer through a window not located
on the door, actions we explicitly found to violate the Fourth Amendment in
J.K. v. State, 8 N.E.3d 222, 232 (Ind. Ct. App. 2014). While the area of the
curtilage is a protected area under the Fourth Amendment, Officer Shourds did
no more than an ordinary citizen is implicitly licensed to do under Jardines. The
fact that Officer Shourds had to reposition his body to view this activity is of no
consequence – if Taylor had intended for all of the activity within the
apartment to be private, he would have ensured no one could see inside when
arriving at his front door.
[19] Finally, the activity observed by Officer Shourds that prompted the application
for a search warrant – Stokes’ possession of a device that could be used to
smoke illegal drugs – was in open view. Items are observed in “open view”
when “law enforcement officers see contraband from an area that is not
constitutionally protected, but rather is in [sic] a place where the officer is
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 10 of 14
lawfully entitled to be.” Justice v. State, 765 N.E.2d 161, 165 (Ind. Ct. App.
2002), clarified on reh’g 767 N.E.2d 995 (Ind. Ct. App. 2002). An officer’s
observations of items in open view “do not constitute a search in the
constitutional sense.” Id. Officer Shourds was in area he was permitted to be –
outside Taylor’s front door – engaged in legitimate police business – a knock
and talk 13- when he observed in open view what he believed to be criminal
activity – Stokes’ possession of drug paraphernalia. Because Taylor had not
fully covered his window as to indicate he intended the activities therein to be
private, the situation is no different from an officer observing an illegal item on
the front porch of a residence. Officer Shourds’ actions did not constitute a
search and thus did not violate Taylor’s rights under the Fourth Amendment to
the United States Constitution. See Trimble v. State, 842 N.E.2d 798, 802 (Ind.
2006) (“The route which any visitor to a residence would use is not private in
the Fourth Amendment sense, and thus if police take that route for the purpose
of making a general inquiry or for some other legitimate reason, they are free to
keep their eyes open.”) (quoting 1 Wayne R. LaFave, Search and Seizure: A
Treatise on The Fourth Amendment § 2.3(e), at 592-3 (4th ed. 2004)).
13
See Warren v. State, 73 N.E.3d 203, 207 (Ind. Ct. App. 2017) (holding a “knock and talk” was legitimate
police business and thus did not constitute a search under the Fourth Amendment).
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 11 of 14
Article 1, Section 11
[20] The language of Article 1, Section 11, the search and seizure provision of the
Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth
Amendment counterpart. Article 1, Section 11 provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
Our Indiana Supreme Court has interpreted and applied Section 11
independently from federal Fourth Amendment jurisprudence. Mitchell v. State,
745 N.E.2d 775, 786 (Ind. 2001).
[21] To determine whether a search violates Article 1, Section 11 of the Indiana
Constitution, we must evaluate the “reasonableness of the police conduct under
the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.
2005). “The totality of the circumstances requires consideration of both the
degree of intrusion into the subject’s ordinary activities and the basis upon
which the officer selected the subject of the search or seizure.” Id. at 360. In
Litchfield, our Indiana Supreme Court outlined the evaluation we must
undertake:
In sum, although we recognize there may well be other relevant
considerations under the circumstances, we have explained
reasonableness of a search or seizure as turning on a balance of:
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 12 of 14
1) the degree of concern, suspicion, or knowledge that a violation
has occurred, 2) the degree of intrusion the method of the search
or seizure imposes on the citizens’ ordinary activities, and 3) the
extent of law enforcement needs.
Id. at 361.
[22] Here, the degree of suspicion and the extent of law enforcement needs were not
low, as Officer Shourds had received two calls indicating there were people
engaging in drug-related activity in Taylor’s apartment. Additionally, Officer
Shourds’ actions were minimally intrusive, if at all, as he acted in the manner a
public citizen might when approaching Taylor’s front door for an innocuous
reason such as to sell cookies or inquire regarding a political opinion. Based
thereon, we cannot conclude Officer Shourds’ activities were unreasonable, and
therefore his observations did not constitute an impermissible search under
Article I, Section 11 of the Indiana Constitution. See Trimble v. State, 842
N.E.2d 798, 804 (Ind. 2006) (search of curtilage permissible under Article 1,
Section 11 based on concerned citizen’s report, officer’s minimal degree of
intrusion, and officer’s concern for health and safety of those involved), adhered
to on reh’g at Trimble v. State, 848 N.E.2d 278 (Ind. 2006).
Conclusion
[23] Officer Shourds’ act of peering through the inches-wide gap between the bottom
of the blinds and the edge of the window on Taylor’s front door apartment
window did not constitute an impermissible search under the Fourth
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 13 of 14
Amendment or Article 1, Section 11 of the Indiana Constitution. Thus, the
trial court did not abuse its discretion when it admitted the items found as part
of the search warrant prompted, in part, by Officer Shourds’ observations
through the gap in the window. Accordingly, we affirm.
[24] Affirmed.
Baker, J., and Bailey, J., concur.
Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019 Page 14 of 14