Justin Jones v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 30 2020, 8:30 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David R. Hennessy Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Jones, November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-512
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
Trial Court Cause No.
49G05-1802-F2-5853
Najam, Judge.
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Statement of the Case
[1] Justin Jones appeals the trial court’s denial of his motions to suppress evidence
obtained following a warrantless search of a cell phone and a subsequent search
of that same cell phone pursuant to a search warrant. Jones raises two issues
for our review, which we consolidate and restate as follows: whether the trial
court erred when it denied his motions to suppress.
[2] We affirm.
Facts and Procedural History
[3] On June 3, 2017, Sarah Thompson was at home with her two small children.
At some point that night, two white males, one masked and one unmasked,
kicked in the door to her home. The men “tied [Thompson] up” and “assaulted
her” while they passed a handgun “back and forth.” Appellant’s App. Vol. 2 at
37. The men held Thompson and her children for several hours while they
searched the house. Ultimately, the men stole jewelry, shoes, purses, gaming
consoles, and a vehicle. Officers with the Indianapolis Metropolitan Police
Department (“IMPD”) responded to Thompson’s house at 1:52 a.m. on June 4.
[4] Later that morning, IMPD officers responded to a report that shots had been
fired at a different location, and they discovered the stolen vehicle. An
individual then told officers that she had heard gun shots and had seen two
white males run from the truck and get into another vehicle. Officers found a
Samsung cell phone located “next to” the truck “in the direction the suspects
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fled.” Id. at 38. Officers also found an LG flip phone in the vehicle. Officers
collected the phones and transported them to the IMPD property room.
[5] On June 15, IMPD Detective James Hurt went to the property room to look at
the phones recovered from in and around the stolen vehicle. On the Samsung
phone, which was not password protected, Detective Hurt saw a picture of
Thompson and her injuries from the offense on the home screen. Detective
Hurt then contacted Thompson and asked her about the picture. Thompson
informed Detective Hurt that she had sent that picture to Jones. Detective Hurt
also learned that the LG flip phone belonged to either Thompson or her
boyfriend.
[6] On June 23, officers sought a warrant to search the Samsung phone. In support
of that request, Detective Hurt filed an affidavit in which he outlined the offense
that had occurred on June 4. He further indicated that officers had responded
to a call of shots fired and found the phone next to the stolen vehicle. Detective
Hurt did not include any information regarding the picture of Thompson he
had found on the phone’s home screen. He then indicated that he was looking
for data that “is indicia of ownership,” or that would constitute “fruits,
instrumentalities, and/or evidence of the crime” of robbery. Ex. at 13
(emphasis removed). The trial court found that probable cause existed and
issued a warrant that authorized officers to search the phone for “[a]ll as
described and detailed in the page(s) titled: ‘List of Property, Objects, Things,
Information, or Persons to be Seized or Produced.’” Id. at 18 (emphasis
removed).
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[7] IMPD Detective Grant Melton searched the phone and found messages and
photographs connecting the phone to Jones, including the picture that
Thompson had sent to Jones of her in the hospital. See Appellant’s App. Vol. 2
at 40. Detective Melton also analyzed the phone’s location information and
determined that Jones’ cell phone had been in the “same neighborhood” as
Thompson’s house on June 4. Id. at 41. The State then charged Jones with
burglary, as a Level 2 felony; robbery, as a Level 3 felony; criminal
confinement, as a Level 3 felony; kidnapping, as a Level 3 felony; kidnapping,
as a Level 5 felony; and auto theft, as a Level 6 felony.
[8] Jones filed a motion to suppress the results of Detective Melton’s search of his
cell phone. In that motion, Jones raised numerous issues and asserted that the
search of the cell phone violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution. The State responded and asserted that Jones had abandoned his
phone and, thus, that he lacked standing to challenge the searches. On April
18, 2019, the trial court held a hearing on Jones’ motion. At that hearing,
Detective Hurt testified that, when he looked at the phone on June 15, he did
not know that the phone was “associated with” Jones. Tr. at 48. He further
testified that the photo of Thompson “popped up” on the home screen and that
he “didn’t push a button” on the phone. Id. at 52.
[9] Jones then filed a motion to suppress the results of the initial search of the cell
phone. Jones asserted that Detective Hurt’s actions amounted to a search of the
phone, which Detective Hurt had conducted without a warrant. The State
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responded and again claimed that Jones lacked standing because he had
abandoned the phone. The trial court held a hearing on Jones’ motion to
suppress the warrantless search. At the beginning of the hearing, the court
“presume[d]” that Jones had standing. Id. at 65. During the hearing, Detective
Hurt testified that, when he picked up the phone on June 15, he simply saw “a
picture of the victim in the hospital” and “[n]othing else.” Id. at 75. But he
testified that, “no matter what” had happened on June 15, he was going to get a
search warrant for the phone because officers had found it next to a stolen
vehicle. Id. at 74. At a subsequent hearing, the court stated that the search
warrant was “adequate” and orally denied Jones’ motion to suppress evidence
that Detective Melton had found on the phone. Id. at 166.
[10] Jones then filed a motion to reconsider. Following a hearing, the court entered
an order in which it indicated that it had “re-examined the record before it by
going back to the beginning of the argument and moving through the sub-
issues.” Appellant’s App. Vol. 2 at 31. The court then stated that, “[u]pon
reflection,” the phone had been abandoned and, thus, that Jones did not have
standing to challenge the searches of the phone. Id. Accordingly, the trial court
denied Jones’ motions to suppress.
[11] Thereafter, Jones filed a motion to certify the court’s order for interlocutory
appeal in which Jones raised a number of questions, including whether the
State had established that the phone was abandoned, whether Detective Hurt’s
actions on June 15 amounted to a search, and whether the second search of the
phone was proper. See Appellant’s App. Vol. 4 at 102-04. The court granted
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Jones’ motion and ordered “that the Court’s findings and orders regarding
standing and abandonment are hereby certified for interlocutory appeal,” which
we accepted. Id. at 165. This interlocutory appeal ensued.
Discussion and Decision
Standard of Review
[12] Jones appeals the trial court’s denial of his motions to suppress. As our
Supreme Court has explained:
Trial courts enjoy broad discretion in decisions to admit or
exclude evidence. When a trial court denies a motion to suppress
evidence, we necessarily review that decision deferentially,
construing conflicting evidence in the light most favorable to the
ruling. However, we consider any substantial and uncontested
evidence favorable to the defendant. . . . If the trial court’s
decision denying a defendant’s motion to suppress concerns the
constitutionality of a search or seizure, then it presents a legal
question that we review de novo.
Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019) (cleaned up).
[13] Jones specifically contends that the court erred when it denied his motions to
suppress because the searches of his phone violated his rights under the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution. As this
Court has recently stated:
Both the Fourth Amendment to the United States Constitution
and Article 1, Section 11 of the Indiana Constitution provide that
the right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures.
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These protections against unreasonable governmental searches
and seizures are a principal mode of discouraging lawless police
conduct.
Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015) (cleaned up).
Abandonment
[14] On appeal, Jones first asserts that the court erred when it denied his motions to
suppress based on its conclusion that he had abandoned the phone and, thus,
that he lacked standing to challenge the searches. It has long been held that
abandoned property is not subject to protection under either the Fourth
Amendment or Article 1, Section 11 of the Indiana Constitution. See id. As
such, a person cannot abandon property and later claim that he had a
protectable interest in that property. See id. Whether property has been
abandoned is a question of intent, which can be ascertained from words, acts,
or other objective facts. See State v. Belcher, 725 N.E.2d 92, 95 (Ind. Ct. App.
2000).
[15] Here, Jones contends that the State failed to produce any evidence to
demonstrate an intent by Jones “to relinquish any privacy interest” in the
phone. Appellant’s Br. at 21. Instead, he asserts that the “very nature” of the
evidence in this case demonstrates “an accidental loss or theft.” Id. at 20.
However, we need not decide whether Jones had abandoned the phone. Even
if we assume for the sake of argument that Jones had not abandoned the phone,
as we explain below, Jones has not met his burden on appeal to demonstrate
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that the court committed reversible error when it denied his motions to
suppress.
Constitutionality of Searches
[16] Jones next contends that the searches of his phone violated his constitutional
rights. The State responds and asserts that this question is not properly before
us because the only order the trial court certified for interlocutory appeal was its
order concluding that Jones had abandoned the phone and, thus, that he lacked
standing to challenge the searches. We cannot agree. As the State correctly
points out, it is the trial court’s order, not the particular legal issue or question,
that is certified for appellate review. See State v. Keller, 845 N.E.2d 154, 160
(Ind. Ct. App. 2006). And, here, the order that the court certified for
interlocutory appeal was an order on Jones’ motion to reconsider. That order
necessarily incorporated and implicated its prior order denying the motion to
suppress the evidence from the warrantless search and its prior finding that the
search warrant was adequate, which orders the court entered after the parties
had thoroughly briefed and argued those issues. As such, this question is
properly before us, and we will consider Jones’ arguments regarding the
constitutionality of the searches.
[17] On appeal, the State relies entirely on its assertion that Jones had abandoned
the phone and, thus, that he lacked standing to challenge the searches.
However, while Jones vigorously argues that both searches violated his rights
under the Fourth Amendment and Article 1, Section 11 of the Indiana
Constitution, the State does not address those issues in its brief. “Where an
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appellee’s brief fails to address an issue raised by an appellant in the opening
brief, it is the same, as to that issue, as though the appellee filed no brief.”
Ferguson v. State, 40 N.E.3d 954, 957 (Ind. Ct. App. 2015). And when an
appellee fails to file a brief on appeal, we may, in our discretion, reverse the trial
court’s decision if the appellant makes a prima facie showing of reversible error.
McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004).
[18] We initially address Jones’ contentions regarding the search of his phone
pursuant to the search warrant. On this question, Jones raises a number of
issues. In particular, Jones asserts that the search of his phone pursuant to the
warrant violated his federal and state constitutional rights because the affidavit
in support of the search warrant: contained only uncorroborated hearsay,
contained stale information, and failed to establish a nexus between the phone
and a crime. He also contends that the search violated his rights because the
warrant failed to identify the specific item or items to be searched. In sum,
Jones contends that the warrant lacked probable cause.
[19] However, we need not address his specific contentions regarding the
inadequacy of the search warrant. The lack of probable cause does not
necessarily require the suppression of evidence obtained during a search
conducted pursuant to a warrant. Snow v. State, 137 N.E.3d 965, 969 (Ind. Ct.
App. 2019). “Indeed ‘the exclusionary rule does not require the suppression of
evidence in reliance on a defective search warrant if the police relied on the
warrant in objective good faith.’” Id. (quoting Jackson v. State, 908 N.E.2d 1140,
1143 (Ind. 2009)). The good faith exception has been codified at Indiana Code
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Section 35-37-4-5(a) (2020), which provides that “the court may not grant a
motion to exclude evidence on the grounds that the search or seizure by which
the evidence was obtained was unlawful if the evidence was obtained by a law
enforcement officer in good faith.” Accordingly, to establish reversible error,
Jones must demonstrate both the lack of probable cause and the inapplicability
of the good faith exception. Id. But Jones does not contend on appeal that the
good faith exception does not apply.
[20] There are two circumstances where the good faith exception does not apply. Id.
Those include situations where the magistrate is misled by information in an
affidavit that the affiant knew was false or would have known was false except
for his reckless disregard for the truth or situations where the warrant was based
on an affidavit so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable. Id. at 969-70.
[21] Jones has not addressed the good faith exception on appeal, and he has not
directed us to any evidence in the record, or made any argument, that the
magistrate was misled by information in the affidavit that Detective Hurt knew
or should have known was false. See Ind. Appellate Rule 46(A)(8)(a). Neither
does he assert that the warrant was so lacking in indicia of probable cause as to
render belief in its existence entirely unreasonable. See id. Accordingly, Jones
has failed to meet his burden on appeal to demonstrate that the trial court erred
when it denied his motion to suppress the evidence obtained following the
search conducted pursuant to the warrant.
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[22] Jones also contends that the warrantless search of his phone violated his
constitutional rights. However, the only evidence officers obtained pursuant to
that search was a photograph of the victim in the hospital. Indeed, Detective
Hurt testified that, when he looked at the phone on June 15, he saw the picture
of Thompson in the hospital and “[n]othing else.” Tr. at 75. But Detective
Melton discovered the same photograph when he searched the phone pursuant
to the search warrant. See Appellant’s App. Vol. 2 at 40. In other words, even
if we were to suppress the photograph found following the warrantless search,
that evidence is still admissible as a result of the search pursuant to the warrant.
[23] In addition, Jones contends that, when Detective Hurt saw the home screen of
the Samsung phone, he searched the phone without a warrant. Jones further
asserts it was the photograph of Thompson on the phone that caused Detective
Hurt to seek a warrant. But Detective Hurt testified that he was going to obtain
a warrant to search the phone “no matter what” because officers had found the
phone in close proximity to a stolen vehicle. Tr. at 74. In his affidavit,
Detective Hurt described the offense that had occurred at Thompson’s home,
including the fact that the suspects had stolen a vehicle, and stated that officers
had found the phone “next to” to that vehicle. See Ex. at 7-8. Thus, there is a
direct connection between the phone and the vehicle and a “substantial basis”
for a finding of probable cause. See Query v. State, 745 N.E.2d 769, 771 (Ind.
2001). And Detective Hurt did not mention the photograph in the probable
cause affidavit. As such, we cannot say that Detective Hurt’s request for the
search warrant was based on the home-screen photograph, that the court relied
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on the photograph when it issued the search warrant, or that the warrant was
tainted by an warrantless search.
[24] Because Detective Melton found the same photograph of Thompson during the
search pursuant to the warrant and because neither Detective Hurt nor the court
relied on the photograph in support of the warrant, Jones has not demonstrated
that the court committed reversible error when it denied his motion to suppress
the photograph pursuant to the warrantless search.
[25] In sum, we affirm the trial court’s order denying Jones’ motions to suppress.
[26] Affirmed.
May, J, and Mathias, J., concur.
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