Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 19 2014, 8:20 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN WILD GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1306-CR-292
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-1302-FA-12948
February 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
James Smith appeals from his convictions after a bench trial of one count of class C
felony Possession of Cocaine and a Firearm,1 one count of class C felony Possession of
Cocaine,2 one count of class A misdemeanor Possession of Marijuana,3 and one count of
class A misdemeanor Carrying a Handgun Without Being Licensed,4 contending that the trial
court abused its discretion by admitting evidence that Smith possessed cocaine, marijuana,
and a firearm without a license, when that evidence was allegedly obtained in contravention
of the Fourth Amendment to the United States Constitution.
We affirm and remand.
David Parrish was employed as a security guard by Avert Security, a private security
company that is not affiliated with law enforcement. Parrish had been trained through the
National Rifle Association, received pepper-spray training, and through his employment, had
encountered marijuana on at least ten occasions. Parrish was patrolling at Colonial Square
Apartments on the evening of February 24, 2013. Parrish testified at trial that he was
“pulling onto one of the parking lot areas, and as I pulled in, I saw a subject standing by the
fence that surrounds the dumpster. And as I was pulling in, he took approximately two steps
backwards.” Transcript at 10. The man Parrish observed was subsequently identified as
Smith.
1
Ind. Code Ann. § 35-48-4-6(b)(1)(B) (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical
Sess.).
2 I.C. § 35-48-4-6(b)(1)(A) (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.).
3 I.C. § 35-48-4-11 (West. Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.).
4 Ind. Code Ann. § 35-47-2-1 (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.).
2
Parrish pulled his vehicle alongside Smith and exited his vehicle. Parrish asked Smith
for identification in order to determine if Smith was a visitor or an apartment resident. Smith
refused to remove his hands from his coat as he spoke with Parrish. Parrish asked Smith to
remove his hands from his pockets, and as Smith did so, a loaded firearm and a green leafy
substance, later identified as marijuana, fell from Smith’s pocket onto the ground. Parrish
also noticed the odor of burnt marijuana emanating from Smith. Smith told Parrish “that’s
[sic] not my guns.” Id. at 13. Because Smith referred to “guns,” Parrish believed that Smith
possessed one or more additional weapons. Parrish placed Smith in handcuffs and called 9-
1-1. Parrish then retrieved the marijuana and firearm from the ground and placed them on
the hood of his vehicle.
Officer Evan Meyer of the Indianapolis Metropolitan Police Department responded to
Parrish’s 9-1-1 call at the Colonial Square Apartments. Officer Meyer testified at trial that
“As I pulled in, the security guard flashed his flashlight at me so I could see exact—his exact
location. As I pulled off [sic], I saw that he had Mr. Smith at the back—or at this [sic] front
of his—he had a Crown Vic, Crown Victoria. As I walked up to him, I saw that there was a
handgun, a digital scale,5 and some marijuana sitting on the hood of the car.” Id. at 23.
Parrish told Officer Meyer the circumstances leading up to the marijuana and weapon falling
out of Smith’s pocket. Officer Meyer then asked Smith for his name and Smith complied.
After running Smith’s name through the police computer system, he discovered that Smith
did not have a license for the firearm. Officer Meyer arrested Smith and then conducted a
5
The admissibility of the digital scale is not challenged here on appeal.
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search incident to that arrest. Officer Meyer discovered what was later identified as 5.09
grams of crack cocaine in Smith’s right front pocket. Smith was then transported to jail.
The State charged Smith with one count of class A felony dealing in cocaine, one
count of class C felony possession of cocaine and a firearm, one count of class C felony
possession of cocaine, one count of class D felony possession of marijuana, one count of
class A misdemeanor carrying a handgun without a license.6 On May 21, 2013, the trial court
sentenced Smith to a term of seven years executed on his conviction for possession of
cocaine as a class C felony and to a concurrent, executed term of two years for Smith’s
conviction of class A misdemeanor possession of marijuana.7 Smith now appeals.
Smith asserts that the trial court abused its discretion by admitting into evidence
marijuana, cocaine, and the firearm, claiming that the items were the product of an
unreasonable search and seizure. Generally speaking, the admission or exclusion of evidence
is entrusted to the discretion of the trial court. Collins v. State, 966 N.E.2d 96 (Ind. Ct. App.
2012). A trial court’s decision will be reversed only for an abuse of discretion, which occurs
when the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court or when it misinterprets the law. Id. On review, we consider
6
The State correctly observed that the chronological case summary, abstract of judgment, and judgment of
conviction indicate that Smith was charged with and convicted of Count VI, carrying a handgun without a
license as a class C felony. Smith has provided this court with a copy of the trial court’s nunc pro tunc order
vacating the judgment of conviction on that count. Although this judgment does not impact Smith’s aggregate
sentence, the matter is remanded to correct the trial court’s records.
7 The State correctly observes that Smith’s two-year sentence for class A misdemeanor possession of marijuana
is illegal. Pursuant to Ind. Code Ann. § 35-50-3-2 (West, Westlaw current through 1st Reg. Sess. & 1st Reg.
Technical Sess.) a person who commits a class A misdemeanor shall be imprisoned for a fixed term of not
more than one year. Further, Smith was not sentenced on his conviction for carrying a handgun without a
license as a class A misdemeanor. These matters are remanded to the trial court for resentencing on Count V
and Count VI.
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the conflicting evidence most favorable to the trial court’s ruling and any uncontested
evidence favorable to the defendant. Id. In our review of whether the introduction of
evidence affected a defendant’s substantial rights, we assess the probable impact of the
evidence on the jury. Id. The erroneous admission of evidence is harmless and not reversible
error where the evidence is merely cumulative of other evidence properly admitted. Id.
At trial, Smith’s sole objection pertained to the admissibility of the marijuana. Thus,
Smith’s failure to lodge a contemporaneous objection to the admissibility of the cocaine and
the firearm waives the issue of their admissibility for appellate review. “The failure to make
a contemporaneous objection to evidence when it is offered waives any claim of error in its
admission on appeal.” Shoultz v. State, 995 N.E.2d 647, 654 (Ind. Ct. App. 2013). By
making a contemporaneous objection at trial, a party immediately and fully alerts the trial
court of the legal issue. Id.
Additionally, Smith’s objection at trial to the admissibility of the marijuana was based
on an alleged defect in the chain of custody. On appeal, Smith advances a constitutional
claim regarding each of these items of evidence. A defendant may not raise one ground for
objection at trial and argue a different ground on appeal. Morgan v. State, 755 N.E.2d 1070
(Ind. 2001).
Although a waiver argument is raised, we address the merits of Smith’s claims. Smith
argued his motion to suppress, at the trial court’s direction, at the close of the State’s case,
and the motion was denied. Smith did challenge the legality of the search and such was
argued at that time.
5
There is no evidence in the record to suggest that Parrish was acting as an agent of law
enforcement. Parrish testified that he was employed by Avert, a private security company,
which had a contract through Gene B. Glick Properties, for security at Colonial Square
Apartments. Parrish wore a uniform with patches on it, but had to telephone law
enforcement officers in the event he detained an individual and needed assistance.
We stated the following in State v. Hart:
The constitutional protection against unreasonable searches and seizures does
not apply to actions of private persons when they are not acting as agents of
police authorities. The rationale for the rule is that the Fourth Amendment was
historically directed at governmental law enforcement conduct, and the
exclusionary rule, which is aimed at governmental law enforcement
misconduct, would serve no useful purpose when applied to private persons.
Here, if the citizen’s arrest had been unlawful, [the private person] might have
incurred liability for damages, but the evidence would not have been
suppressed.
669 N.E.2d 762, 765-66 (Ind. Ct. App. 1996) (internal citations omitted). Given that Parrish
was not acting as an instrument or agent of the government, Smith’s entitlement to relief
hinges on whether he can show that the police obtained the cocaine, marijuana, and firearm
illegally.
Regarding the marijuana and the firearm, Officer Meyer testified that he observed
those items on the hood of Parrish’s car upon his arrival at the scene. In other words, Officer
Meyer observed the items in plain view.
Police may seize evidence not identified in a warrant under the plain view
doctrine. The plain view doctrine allows a police officer to seize items when
he inadvertently discovers items of readily apparent criminality while rightfully
occupying a particular location. First, the initial intrusion must have been
authorized under the Fourth Amendment. Second, the items must be in plain
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view. Finally, the incriminating nature of the evidence must be immediately
apparent.
Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003). Here, Officer Meyer responded to a 9-1-1
call placed by Parrish and observed the marijuana and the firearm along with a digital scale
on the hood of Parrish’s car. The incriminating nature of the evidence on the hood of the car
was immediately apparent and its seizure was not unreasonable.
Furthermore, the cocaine was properly admitted as the result of search incident to
arrest.
The search incident to arrest exception to the warrant requirement provides
that a police officer may conduct a search of “‘the arrestee’s person and the
area within his immediate control.’” “Evidence resulting from a search
incident to a lawful arrest is admissible at trial.” “Probable cause adequate to
support a warrantless arrest exists when, at the time of the arrest, the officer
has knowledge of facts and circumstances that would warrant a person of
reasonable caution to believe that the suspect committed a criminal act.
Rhodes v. State, 996 N.E.2d 450, 455 (Ind. Ct. App. 2013) (internal citations omitted). After
Smith identified himself, Officer Meyer ran Smith’s name through the police computer
system and discovered that Smith did not have a license for the firearm that had fallen from
his pocket. Officer Meyer lawfully arrested Smith for the offense of carrying a handgun
without a license, and incident to that arrest, searched Smith’s person. Officer Meyer
discovered the cocaine in the right pocket of Smith’s coat. The cocaine was lawfully seized.
Additionally, we conclude that Officer Meyer did not violate article 1, section 11 of
the Indiana Constitution. “Indiana has explicitly rejected the expectation of privacy as a test
of the reasonableness of a search or seizure. The legality of a governmental search under the
Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under
7
the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). In
this case, Officer Meyer had a high degree of concern and an articulable suspicion that
criminal activity was taking place. As he approached Parrish and Smith, he observed a bag
of marijuana, a digital scale, and a firearm in plain view on the hood of Parrish’s car. Upon
discovering that Smith lacked a license to carry the firearm, Officer Meyer had probable
cause to believe that criminal activity was taking place. The search of Smith’s person
incident to his arrest was minimally intrusive and also necessary to determine if Smith
possessed other weapons. We find no violation of Indiana constitutional protections here.
Judgment affirmed and remanded.
KIRSCH, J., and BAILEY, J., concur.
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