FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 24 2012, 9:33 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
GREGORY KIRK, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1110-CR-979
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
Cause No. 49G20-1006-FB-48834
September 24, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge
Gregory Kirk (“Kirk”) appeals from his convictions following a jury trial for
conspiracy to commit dealing in cocaine1 as a Class B felony, conspiracy to commit
dealing in a controlled substance2 as a Class B felony, neglect of a dependent3 as a Class
C felony,4 and possession of marijuana5 as a Class A misdemeanor. On appeal, Kirk
raises the following consolidated and restated issues:
I. Whether the trial court abused its discretion in admitting
incriminating statements about Kirk, which were made to police by
Kirk’s stepson, D.K.;
II. Whether the trial court abused its discretion in admitting evidence
obtained during a warrantless search of Kirk’s cell phone, which
Kirk alleges was obtained in violation of the Fourth Amendment to
the United States Constitution and Article I, section 11 of the
Indiana Constitution;
III. Whether the search of Kirk’s home violated the Fourth Amendment
to the United States Constitution and Article I, section 11 of the
Indiana Constitution, because the search warrant was not supported
by probable cause;
IV. Whether the trial court abused its discretion when it admitted the
search warrant into evidence; and
V. Whether there was sufficient evidence to support Kirk’s convictions.
We affirm in part, reverse in part, and remand with instructions.
1
See Ind. Code § 35-41-5-2; Ind. Code § 35-48-4-1.
2
See Ind. Code § 35-41-5-2; Ind. Code § 35-48-4-2.
3
See Ind. Code § 35-46-1-4.
4
Kirk was charged with neglect of a dependant as a Class D felony in Count III of his
information. The behavior described in Count III, however, alleged an offense that, if properly classified,
would have been a Class C felony. Ind. Code § 35-46-1-4(b)(1). In a pre-trial order, the trial court noted
this typographical error and stated that the offense was in fact a Class C felony. Appellant’s App. at 123.
Kirk was convicted of Class C felony neglect of a dependent. Id. at 27.
5
See Ind. Code § 35-48-4-11.
2
FACTS AND PROCEDURAL HISTORY
During June 2010, Dennis Barnett (“Barnett”) lived in the 800 block of North
Tuxedo Street in Indianapolis. At that time, Barnett, a long-time drug user, was buying
$20 to $40 worth of crack cocaine every other day from Kirk’s sixteen-year-old stepson,
D.K. Barnett was unable to text from his cell phone, so when he needed drugs he would
knock on the door of D.K.’s house, which was located at 918 North Tuxedo Street.
Occasionally, when Barnett did not have the cash to pay for the cocaine, D.K. “fronted
[Barnett] until the next day.” Tr. at 84. Both Barnett and D.K. kept track of the cocaine
Barnett purchased and any money that Barnett owed. Kirk was sometimes present when
Barnett bought cocaine from D.K., and would request cocaine from D.K. or Barnett for
his own use.
On or about the evening of June 18, 2010, Barnett promised Kirk $20 if he would
drive him to collect $80 from a man who owed him money. When they arrived, the man
did not have cash so Barnett accepted payment in the form of $80 worth of crack cocaine.
Kirk asked Barnett to give him $20 worth of cocaine as payment for the drive, instead of
the previously agreed $20 in cash. Id. at 104. On the drive back, Kirk talked to Barnett
“about money he [Barnett] owed [Kirk’s] son,” for previously purchased drugs. Id. at
114. Upon returning home, Kirk told D.K. that Barnett owed D.K. money and that
Barnett was currently in possession of crack cocaine. Id. at 93. That evening, D.K. and
an unidentified man went to Barnett’s house. Barnett testified that he had smoked all of
the cocaine before the men got there. The men left Barnett’s home without incident.
On June 19, 2010, Barnett walked by Kirk’s home on his way home from work.
3
Upon seeing Barnett, Kirk said, “You are going to get beat down.” Id. at 90, 96. Later
that evening, Barnett saw Kirk and D.K. across the street near his house. D.K. had a gun
in his hand, which was pointed at the ground. Kirk was standing beside D.K., and the
two were “talking towards [Barnett] down the street.” Id. at 98. At trial, Barnett testified
that he heard Kirk yell, “We going to get him.” Id. at 97. Assuming that Kirk and D.K.
were there to collect on the debt they believed Barnett owed for a prior cocaine purchase,
Barnett called 911.
Indianapolis Metropolitan Police Department (“IMPD”) Reserve Officer Alan
Nelson (“Officer Nelson”) responded to the call, and after Barnett provided a description
of the suspects and the direction they were headed, Officer Nelson apprehended Kirk and
D.K. about fifty or sixty yards from Barnett’s house. Additional IMPD officers,
including Detective Garth Schwomeyer (“Detective Schwomeyer”), arrived shortly
thereafter.
For officer safety, and in an attempt to control the situation, Officer Nelson patted
down the suspects for weapons. The pat-down of D.K. revealed that he was carrying a
loaded, semi-automatic, Cobra 380 handgun. The gun had been reported stolen in 2009.
D.K. was arrested for possession of a handgun without a license. Police then handcuffed
him and advised him of his Miranda6 rights. Although one of the officers determined that
D.K. was only sixteen-years old, he was not informed of his rights under Indiana Code
section 31-32-5-1, which pertains to a juvenile’s waiver of his right against self-
incrimination. A search incident to arrest revealed that D.K. had a baggie of cocaine in
6
Miranda v. Arizona, 384 U.S. 436 (1966).
4
his front pocket, $120 in cash, and, in his back pocket, eighteen pills of acetaminophen
with codeine in a pill bottle bearing the name “Richard Dodd.” Id. at 126-27. After he
was arrested, D.K. made incriminating statements about Kirk to police.
After noticing that Kirk’s eyes were glassy and bloodshot, his speech was slurred,
and his breath had an odor of alcohol, Detective Schwomeyer arrested Kirk for public
intoxication and for neglect of a dependent and advised him of his Miranda rights.
During a search of Kirk incident to arrest, police found half-burnt marijuana cigarettes,
“roach clips,” a pipe, and a cell phone. Id. at 141. Detective Schwomeyer immediately
pressed the text button on the cell phone and looked at six to eight text messages. He
recalled that one text message was from “someone requesting to purchase marijuana, and
[another] one was someone requesting to purchase pain pills.” Id. at 180. Officer Nelson
also looked at the text messages. While Officer Nelson did not recall the exact language
of the text messages, he recalled that they were from “people wanting to buy drugs,” i.e.,
“pills” and one other drug that Officer Nelson could not remember. Id. at 129. When
questioned at the scene, Kirk told Detective Schwomeyer that he had been near Barnett’s
house because “the guy owed him money.” Id. at 229. When asked about the nature of
the debt, Kirk declined to answer. Id.
On June 23, 2010, Detective Schwomeyer obtained a warrant to search the home
at 918 North Tuxedo Street, the address both Kirk and D.K. gave as being their residence.
Id. at 200. That same day, officers executed the search warrant and found a duffle bag in
a wooden box on the outside back porch. Attached to the duffle bag was a cardboard tag
with D.K.’s name on it. Id. at 195-97. Under the duffle bag, Detective Schwomeyer
5
found a Mossburg .22 caliber full tactical rifle. Id. at 196. Detective Schwomeyer
testified that the duffle bag contained a sawed-off 12-gauge shotgun; 200 to 300 rounds
of different kinds of ammunition; 1000 small, plastic, zip-lock baggies; a set of digital
scales; a shoulder holster for a semi-automatic 380; a couple of BB guns; and a bottle of
injectable lidocaine. Id. Inside the home, police found $388 in cash inside a backpack,
which was in the closet of the bedroom that D.K. shared with his younger brother. Id. at
232. In that same bedroom, police found a gun cleaning kit for an M-16 rifle. Id. at 197.
Kirk was charged with conspiracy to commit dealing in cocaine, conspiracy to
commit dealing in a controlled substance, neglect of a dependent, and possession of
marijuana. Prior to trial, Kirk sought to suppress: (1) statements D.K. made to police;
(2) evidence obtained from the search of Kirk’s cell phone; and (3) evidence found
during the search of his home. After a hearing on the motion, the trial court denied the
motion to suppress. Kirk filed a motion to reconsider. It is not clear from the record
before us whether that motion was ever ruled on by the trial court.
Kirk’s two-day jury trial began on September 14, 2011. On the first day of trial,
Kirk raised a motion in limine: (1) to exclude evidence that a confrontation had occurred
between Barnett and Kirk a couple of days prior to Kirk’s arrest; (2) to exclude D.K. as a
witness because Kirk alleged that D.K. was called as a witness by the State for the sole
purpose of later impeachment; and (3) to exclude Detective Schwomeyer’s testimony
regarding the content of the text messages on Kirk’s cell phone. Id. at 49-58. The trial
court denied the motion in limine, but indicated it would “entertain an objection at the
appropriate time and rule on it then.” Id. at 64.
6
During trial, defense counsel again objected to the admission of D.K.’s statements
on the basis that they were taken in violation of Indiana Code section 31-32-5-1, and also
objected on the basis that they were hearsay. Over defense counsel’s objections, the trial
court admitted the evidence of D.K.’s statements and the evidence discovered during the
search of both Kirk’s cell phone and his home. Id. at 128-30, 171-74, 177, 180, 186-88,
194, 201, 211. Kirk was convicted of all four counts and was sentenced to eighteen
years, with ten years executed and eight years suspended to probation for each Class B
felony conspiracy conviction; four years executed for the Class C felony neglect of a
dependent conviction; and one year executed for the Class A misdemeanor possession of
marijuana conviction, all of which were ordered to run concurrently. Kirk now appeals.
DISCUSSION AND DECISION
I. Admission of D.K.’s Statements
Kirk argues that the trial court abused its discretion in admitting incriminating
statements D.K. made about Kirk to police. Specifically, Kirk contends that the
statements should not have been admitted into evidence because they were taken by
police in violation of Indiana Code section 31-32-5-1 and because the statements
constituted inadmissible hearsay. The trial court has broad discretion in ruling on the
admission or exclusion of evidence. Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct.
App. 2012). The trial court’s ruling on review of admissibility of evidence will be
disturbed only upon a showing of an abuse of discretion. Id. An abuse of discretion
occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances
presented. Oatts v. State, 899 N.E.2d 714, 719 (Ind. Ct. App. 2009). In reviewing the
7
admissibility of evidence, we consider only the evidence in favor of the trial court’s
ruling and any unrefuted evidence in the appellant’s favor. Redding v. State, 844 N.E.2d
1067, 1069 (Ind. Ct. App. 2006). As a rule, errors in the admission or exclusion of
evidence are to be disregarded as harmless unless they affect the substantial rights of a
party. Id. In determining whether an evidentiary ruling affected a party’s substantial
rights, we assess the probable impact of the evidence on the trier of fact. Id.
A. D.K.’s Statements
The statements to which Kirk objects were introduced at trial through the
testimony of Detective Schwomeyer, who stated:
I asked [D.K.] why was he out here dealing cocaine and carrying a
pistol, sixteen years old. His response [was] that times were tight,
that he had to help out the family, said there wasn’t food in the
house. I asked him, you know, that doesn’t give you any right to be
out here, you are sixteen years old, and you have got a loaded gun,
carrying a gun, selling cocaine and selling pills. And he said, “But
I’m with my dad,” which shocked me.
Tr. at 174.
B. Indiana Code Section 31-32-5-1
Under the Fifth Amendment to the United States Constitution and Article I,
Section 14 of the Indiana Constitution, “persons shall be free from being compelled to
make disclosures which might subject them to criminal prosecution or aid in their
conviction.” P.M. v. State, 861 N.E.2d 710, 713 (Ind. Ct. App. 2007). In protection of
the right against self-incrimination, the United States Supreme Court’s opinion in
Miranda v. Arizona, 384 U.S. 436, 444 (1966) established that “‘the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial
8
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.’” P.M., 861 N.E.2d at 713.
(quoting Miranda, 384 U.S. at 444). Such procedural safeguards include an advisement
to the accused that he has the right to remain silent. Id.
The United States Supreme Court has made clear that “a mere failure to give
Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the
Miranda rule.” United States v. Patane, 542 U.S. 630, 641 (2004). “This, of course,
follows from the nature of the right protected by the Self-Incrimination Clause, which the
Miranda rule, in turn, protects. It is ‘a fundamental trial right.’” Id. (quotations omitted)
(emphasis in original). Once a statement has been improperly obtained, the violation can
be remedied by prohibiting the use of the involuntary statement “against that person in a
criminal prosecution.” D.M. v. State, 949 N.E.2d 327, 333 (Ind. 2011). Both parties
agree that D.K. was read his Miranda rights.
In 1972, the Indiana Supreme Court “responded to the U.S. Supreme Court’s
admonition that ‘special caution’ be used in the context of juvenile confessions by
holding that Indiana law requires the use of procedural safeguards in addition to those
required by Miranda when a juvenile is subjected to custodial interrogation.” Id.
(emphasis in original) (internal citations omitted) (citing Lewis v. State, 259 Ind. 431,
439–40, 288 N.E.2d 138, 142 (1972)). This basic concept was codified by the Indiana
General Assembly, the current version of which can be found in Indiana Code section 31-
9
32-5-1 (“Juvenile Waiver Statute”).7 Like the Miranda warning, the Juvenile Waiver
Statute was seen as necessary to safeguard a juvenile suspect’s privilege against self
incrimination. Here, while both parties agree that police obtained D.K.’s statements
without first advising him of his rights under Indiana Code chapter 31-32-5, because D.K.
was not on trial, there could have been no violation of his right against self-incrimination.
Kirk argues that his power to suppress D.K.’s statements still exists because the
“plain language of [Indiana Code section 31-32-5-1] clearly grants to parents broad
control over a juvenile’s statements made during a custodial interrogation.” Appellant’s
Br. at 17. For example, “[w]here a child has a parent but not counsel, the parent’s waiver
of the juvenile’s rights is one of the prerequisites to admissibility of that [juvenile’s]
statement against the juvenile.” Id. Even so, Kirk admits that a parent’s control extends
to protecting a juvenile’s right against self-incrimination, i.e., being able to prevent a
juvenile’s own statement from being used “against the juvenile.” Appellant’s Br. at 17.
As such, Kirk cannot suppress D.K.’s statements by asserting D.K.’s privilege against
self-incrimination. See Randall v. State, 455 N.E.2d 916, 920 (Ind. 1983) (defendant
cannot claim violation of his own constitutional rights by showing violation of someone
else’s constitutional rights). Stated differently, Kirk does not have standing to complain
that the introduction of D.K.’s statements to police violated D.K.’s privilege against self-
incrimination. Thus, the trial court did not abuse its discretion in determining that D.K.’s
7
Indiana Code section 31-32-5-1 in pertinent part provides that a juvenile’s rights guaranteed
under the federal or Indiana constitution may be waived only: 1) by counsel retained or appointed to
represent the child if the child knowingly and voluntarily joins with the waiver; or 2) by the child’s
custodial parent if meaningful consultation has occurred between that person and the child, the child
knowingly and voluntarily joins with the waiver, and that person has no interest adverse to the child.
10
statements were admissible at Kirk’s trial, notwithstanding the fact that they were taken
by police in violation of Indiana Code section 31-32-5-1.
C. Hearsay
D.K.’s statements, while admissible as evidence against Kirk, must still be
properly admitted. At trial, Kirk also maintained that D.K.’s statements were barred from
evidence because they were inadmissible hearsay, the admission of which constituted an
abuse of discretion. Tr. at 171. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). Here, the statements of D.K. were
offered to prove the truth of the assertion and as a result were hearsay.
As a general rule, hearsay is inadmissible unless the statement falls within one of
the established hearsay exceptions. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
At trial, the State argued that D.K.’s statements were admissible either as: (1) a statement
offered against a party by that party’s co-conspirator, Indiana Evidence Rule 801(d); or a
statement against interest, Indiana Evidence Rule 804(b)(3). The State on appeal
concedes that neither exclusion applies to D.K.’s statements. Appellee’s Br. at 11.
Instead, the State argues that the evidence was properly admitted as “impeachment
evidence against D.K. as prior inconsistent statements.” Id. at 11-12. However, while
asserting that the prior inconsistent statement exception applies, the State concedes that it
failed to follow the proper procedure to admit the statements as prior inconsistent
statements. Id. at 12. The State attempts to dismiss this shortcoming by asserting that the
error was harmless. “Only where we can state beyond a reasonable doubt that the
11
improperly admitted evidence did not contribute to the defendant’s conviction is the error
harmless.” Smith v. State, 713 N.E.2d 338, 346 (Ind. Ct. App. 1999), trans. denied. As
we discuss in Section V below, the introduction of D.K.’s statements was harmless as to
three of Kirk’s convictions; however, we find the evidence of D.K.’s statement was not
harmless as to Kirk’s conviction for conspiracy to commit dealing in a controlled
substance.
II. Cell Phone Texts
Kirk next contends that the trial court abused its discretion by admitting testimony
regarding the content of Kirk’s text messages. Specifically, he contends that the evidence
should have been suppressed because it violated the unreasonable search and seizure
provisions in Article I, Section 11, of the Indiana Constitution and the Fourth
Amendment to the United States Constitution, and the State failed to prove an exception
to the warrant requirement to justify the warrantless search of his cell phone. We conduct
a de novo review of a trial court’s ruling on the constitutionality of a search or seizure.
Danner v. State, 931 N.E.2d 421, 426 (Ind. Ct. App. 2010), trans. denied.
The Fourth Amendment to the United States Constitution (“Fourth Amendment”)
guarantees the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. As such it protects an individual’s
privacy and possessory interests by prohibiting unreasonable searches and seizures.
Howard v. State, 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007). This protection has been
extended to the states through the Fourteenth Amendment. Krise v. State, 746 N.E.2d
957, 961 (Ind. 2001). A search warrant is generally a prerequisite to a constitutionally
12
proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005). When a
search is conducted without a warrant, “[t]he State bears the burden of proving that a
warrantless search falls within an exception to the warrant requirement.” Trotter v. State,
933 N.E.2d 572, 579 (Ind. Ct. App. 2010). “Whether a particular warrantless search
violates the guarantees of the Fourth Amendment depends on the facts and circumstances
of each case.” Id. We note that exceptions to the warrant requirement are strictly
construed. Jefferson v. State, 780 N.E.2d 398, 404 (Ind. Ct. App. 2002).
Both parties agree that the “search incident to arrest” exception is the only
exception to the warrant requirement at issue. Appellant’s Br. at 24; Appellee’s Br. at 14.
“Under the search incident to arrest exception, police officers may search the entire
person of an arrestee, including any containers found on the arrestee, incident to a lawful
arrest.” Chelsea Oxton, The Search Incident to Arrest Exception Plays Catch Up: Why
Police May no Longer Search Cell Phones Incident to Arrest Without Warrant, 43
Creighton L. Rev. 1157, 1158 (2010). “In several instances, law enforcement has
rummaged through a disturbing amount of personal information stored in arrestees’ cell
phones under the authority of the search incident to arrest exceptions, actions numerous
courts have upheld.” Id.8 “While modern cell phones are incredible technological
innovations whose proliferation has undoubtedly improved everyday life, they come with
8
Citing United States v. Finley, 477 F.3d 250, 254, 260 (5th Cir. 2007) (describing police
searching arrestee’s cell phone and text messages stored therein); United States v. Deans, 549 F. Supp. 2d
1085, 1090, 1094 (D. Minn. 2008) (describing police searching electronic memories of two cell phones
found in arrestee’s vehicle); United States v. McCray, No. CR408-231, 2009 WL 29607, at *2 (S.D. Ga.
Jan. 5, 2009) (describing police searching photo directory of arrestee’s mobile phone). Chelsea Oxton,
The Search Incident to Arrest Exception Plays Catch Up: Why Police May No Longer Search Cell
Phones Incident to Arrest Without A Warrant, 43 Creighton L. Rev. 1157, 1220 (2010).
13
largely unexplored legal consequences.” Id. “[A]pplying the Fourth Amendment to
modern technology such as cell phones posits some fundamental questions.” Id. “In the
current digital environment, what is embodied by “papers” and “effects” under the Fourth
Amendment?” Id. at 1158-59. “Further, what kind of Fourth Amendment protection
should devices such as cell phones receive?” Id. at 1159. The United States Supreme
Court has reminded us that “[t]he judiciary risks error by elaborating too fully on the
Fourth Amendment implications of emerging technology before its role in society has
become clear.” City of Ontario v. Quon, ––– U.S. ––––, 130 S. Ct. 2619, 2629, 177
L.Ed.2d 216 (2010). Where, like here, we can decide this issue without addressing the
Fourth Amendment issue, we will do so.
Similar to the Fourth Amendment, Article I, section 11 of the Indiana Constitution
(“Article I, section 11”) protects citizens from unreasonable searches and seizures. 9
Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006). However, in spite of the similarity in
structure of the federal and state constitutional provisions, interpretations and
applications vary between them. Id. (citing State v. Bulington, 802 N.E.2d 435, 438 (Ind.
2004)). “‘The Indiana Constitution has unique vitality, even where its words parallel
federal language.’” Id. (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002)).
“When we interpret language in our state constitution substantially identical to its federal
9
The Fourth Amendment to the United States Constitution proclaims, “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .” Article I, section 11 of the Indiana Constitution 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 . . . .”
14
counterpart, ‘we may part company with the interpretation of the Supreme Court of the
United States or any other court based on the text, history, and decisional law elaborating
the Indiana constitutional right.’” Id. (quoting Ajabu v. State, 693 N.E.2d 921, 929 (Ind.
1998)).
Unlike the Fourth Amendment, where we focus on the defendant’s reasonable
expectation of privacy, under Article I, section 11, we focus on the actions of the police,
concluding that the search is legitimate where it is reasonable given the totality of the
circumstances. Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). As we consider
reasonableness based upon the particular facts of each case, we give Article I, section 11
a liberal construction in favor of protecting individuals from unreasonable intrusions on
privacy. Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008).
Our determination of the reasonableness of a search or seizure under Article I,
section 11 often turns on a balance of: 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 citizen’s ordinary activities; and 3) the extent of law enforcement
needs.” Trimble, 842 N.E.2d at 803 (quoting Litchfield v. State, 824 N.E.2d 356, 361
(Ind. 2005)). It is the State’s burden to prove that the search was reasonable under the
totality of the circumstances. Id.; Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).
Here, officers responded to Barnett’s 911 call that two men, one of whom was
brandishing a gun, were threatening “to use that gun to beat [Barnett].” Tr. at 25. When
officers stopped D.K. and Kirk, it was reasonable to perform a pat down search for
officer safety and to search D.K. incident to arrest after finding that he was carrying a
15
loaded gun. Police then arrested Kirk for neglect of a dependent and public intoxication
and, while performing a search incident to arrest, found he was in possession of
marijuana, a pipe, and a cell phone. Immediately after finding Kirk’s cell phone,
Detective Schwomeyer opened the inbox and looked at six to eight text messages. Tr. at
31, 37.
By requiring the need for a warrant in order to search a cell phone, our court has
recognized that the seizing of the contents of such items are deserving of protection and
court oversight. See State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (officers
should have obtained search warrant for locked box just as they had done to investigate
contents of cell phone), trans. denied; Smith, 713 N.E.2d at 345 (cell phones and
evidence flowing therefrom should not have been admitted into evidence when State
failed to justify warrantless search). The State did not make clear the reason for the
search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even
holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent
and public intoxication; neither crime of which clearly implicated use of a cell phone.
Although Detective Schwomeyer was within his rights to confiscate the cell phone
during the search incident to arrest, there was no real law enforcement need to open the
cell phone, press a button to access the inbox, and read six to eight text messages. The
State attempts to justify the search of the cell phone under the Indiana constitution by
stating that the search intruded only a small amount into Kirk’s ordinary activities and
that law enforcement needs were great. On balance, we are not persuaded.
The State contends that the law enforcement needs to search the phone
16
immediately were great because the contents of the cell phone could have been remotely
cleansed. The State, however, fails to prove that this was a reasonable concern or to
demonstrate that less intrusive means such as removing the SIM card or simply turning
the cell phone off could not have been used to block any effort to remotely cleanse the
cell phone until a warrant could be obtained.
Furthermore, we find that the police actions subsequent to Kirk’s arrest call into
question the claim of the importance of the contents of the cell phone. Kirk’s phone was
seized in June 2010 and was not accessed by either party for the next three months.
During that time, the property room misplaced and later found the cell phone. When
Kirk’s cell phone reappeared, it was in need of being charged and required a code to
unlock it. The State could not obtain the code from Kirk, and yet made no effort to
obtain a search warrant to again view the text messages. The State’s failure to act
promptly to secure the contents of the text messages suggests that the warrantless search
was not motivated by concerns about the destruction of evidence. Under these facts and
circumstances, we conclude that the warrantless search of the cell phone was
unreasonable under Article I, Section 11 of the Indiana Constitution, and it was error for
the trial court to admit the testimony regarding the contents of Kirk’s cell phone.
Having found constitutional error, we must address whether that error was
prejudicial to the defendant. Stinchfield v. State, 174 Ind. App. 423, 432, 367 N.E.2d
1150, 1155 (1977). “Only where we can state beyond a reasonable doubt that the
improperly admitted evidence did not contribute to the defendant’s conviction is the error
harmless.” Smith, 713 N.E.2d at 346. As we discuss in Section V below, the
17
introduction of the text messages was harmless as to three of Kirk’s convictions;
however, we find the evidence of the text messages was not harmless as to Kirk’s
conviction for conspiracy to commit dealing in a controlled substance.
III. Probable Cause for Search Warrant
Kirk argues that the search of his home violated his rights guaranteed under the
Fourth Amendment to the United States Constitution and Article I, section 11 of the
Indiana Constitution. Specifically, Kirk maintains that the warrant was defective because
it was based on D.K.’s inadmissible statements and on the illegally seized text messages
found on Kirk’s phone and that, without these pieces of evidence, there was no probable
cause to search the home. When a defendant challenges the propriety of a search after a
completed trial, the issue before a reviewing court is whether the evidence was properly
admitted. Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010), trans. denied.
The standard of review is the same if either the defendant challenged the evidence by a
pre-trial motion to suppress or trial objection. Id. The reviewing court is not to reweigh
the evidence, and conflicting evidence is considered most favorable to the trial court’s
ruling, but uncontested evidence is considered favorable to the defendant. Id. In
deciding whether to issue a search warrant, the issuing magistrate’s task is simply to
make a practical, common-sense decision whether, given all the circumstances set forth
in the affidavit, there is a fair probability that evidence of a crime will be found in a
particular place.” Id. at 1188-89.
The duty of a reviewing court is to determine whether the issuing magistrate had a
substantial basis for concluding that probable cause existed. Id. at 1189. While we
18
review the question de novo, we give significant deference to the issuing magistrate’s
determination and focus on whether reasonable inferences drawn from the totality of the
evidence support the finding of probable cause. Id. “In determining whether an affidavit
provided probable cause for the issuance of a search warrant, doubtful cases are to be
resolved in favor of upholding the warrant.” Id.
D.K. and Kirk each told the police that the North Tuxedo address was their place
of residence. The trial court granted the State’s request for a warrant to search Kirk’s
home based on Detective Schwomeyer’s “Search Warrant Affidavit,” the pertinent parts
of which provided as follows:
[IMPD] responded to a radio call at 822 North Tuxedo Street of a
disturbance involving a gun. . . . [T]he officers spoke with the caller
Dennis Barnett about an altercation that had occurred earlier in the week.
Mr. Barnett stated that three . . . males had come to his home and
threatened him regarding a dispute over money. Mr. Barnett also stated
that one of the individuals threatened that he would return on Saturday to
pistol whip Mr. Barnett if he failed to pay. During this confrontation one of
the . . . male suspects brandished a handgun to back up the threat. Mr.
Barnett stated that he had called the police when he saw two of the three
subjects involved in the initial confrontation standing down the street from
his residence. . . . Mr. Barnett believed the subjects were on foot in the area
and were waiting for the police to leave before they returned to Mr.
Barnett’s residence. Mr. Barnett described the individuals . . . .
. . . Det. Schwomeyer and Det. Mannina drove one street over and observed
Ptl. Nelson and Ptl. Thomas getting out of their car to speak with two
individuals that matched the description exactly of the suspects involved in
the incident. . . . Det. Schwomeyer observed that the older of the two
individuals had a strong odor of alcohol on his breath and his speech was
slurred. Det. Schwomeyer learned that this subject[’]s name was Gregory
O. Kirk . . . and he was the father of the second subject who was later
identified as [D.K.] . . . . Because of the nature of the incident involving a
firearm and the fact that this is a high crime area where officers routinely
respond to incidents involving narcotics and violent crimes[,] Ptl. Nelson
completed a pat down of both individuals for weapons. Ptl. Nelson patted
19
the front of [D.K.’s] pants and immediately identified what he believed to
be[,] based on his training and experience[,] a semi-automatic handgun.
Ptl. Nelson withdrew the gun from the sixteen year olds pants and handed it
to Det. Schwomeyer. Det. Schwomeyer cleared the weapon . . . finding it
to have a round in the chamber and a full magazine . . . the gun was
reported as stolen . . . . [A search incident to arrest] resulted in officers
finding a baggy of white powder like substance suspected of being cocaine
from [D.K.’s] right front pants pocket and a prescription pill bottle
containing eighteen pills . . . with codeine phosphate, a schedule three
controlled substance. . . . Det. Schwomeyer initiated a conversation with
[Kirk] regarding the initial incident at Mr. Barnett’s residence and he stated
that he and his son had been arguing with Mr. Barnett over money that he
owed them. . . . D.K. stated that he [had] been arrested and sent to juvenile
before. Det. Schwomeyer asked [D.K.] why he was out on the street with
his father selling cocaine and prescription pain medication and he stated
that it was because “money was tight at home.” [D.K.] went on to state
that there was not much food at home and that he was trying to help out the
family. While Det. Schwomeyer was speaking with [D.K.] he continuously
looked at his father as if he was waiting for his father to speak up on his
behalf. During this conversation [Kirk] repeatedly put his head down as if
he was ashamed of what he had been caught doing with his son. Det.
Schwomeyer conducted a search of [Kirk] and found . . . a cellular phone.
Det. Schwomeyer looked through the telephone’s text messages and found a
text message from an individual wanting to purchase marijuana and
another text from an individual wanting to purchase pain pills.
Det. Schwomeyer believes based off his training and experience as a
narcotics detective that the text messages and the statements by [D.K.]
show a direct conspiracy between [Kirk] and [D.K.] to deal in illegal
narcotics. Det. Schwomeyer has worked over one thousand narcotics
investigation [sic] that has resulted in the seizure of small and large
amounts of cocaine and other controlled substances. Det. Schwomeyer has
worked as a case agent, undercover, team leader, and supervisor in
hundreds of cases involving two or more individuals working together for
the common goal of manufacturing, packaging, and distributing illegal
narcotics. Det. Schwomeyer believes that [Kirk] utilized his sixteen year
old son to sell cocaine and prescription medication so that he will not get
caught dealing drugs. [Kirk] supervises his son’s dealings and assists his
son in the collection of money when necessary. [Kirk] realizes that his son
is a juvenile and will receive a lighter sentence if he is caught with illegal
narcotics and/or weapons so when the two are out on the street [Kirk] has
his son carry the illegal items while he coordinates via cellular phone with
potential narcotics customers. Det. Schwomeyer believes that [Kirk] likely
20
learned the impact that a cocaine conviction could have on him during his
2001 conviction for possession of cocaine . . . .
Appellant’s App. at 214-16.
Kirk contends that the search warrant should fail because it is based on the
Affidavit of Probable Cause, which contains D.K.’s inadmissible hearsay and the
contents of the illegally seized text messages. Appellant’s Br. at 12. Assuming without
deciding that it was error to base the warrant on D.K.’s statements and on the contents of
the text messages, we find sufficient evidence of probable cause in the rest of the
affidavit. Barnett called 911 to report that two of the three men, who had previously
threatened him with a gun regarding an unpaid debt, were on Barnett’s street, brandishing
a gun. The police stopped Kirk and D.K.—males matching Barnett’s description of the
men. Because of the nature of the incident involving a firearm and the fact that the stop
was made in a high crime area where officers routinely respond to incidents involving
narcotics and violent crimes, the officers performed a pat-down search of both suspects.
Sixteen-year-old D.K. was carrying a stolen, loaded handgun, cocaine, and eighteen pills
containing codeine. Kirk told Detective Schwomeyer that “he and his son[, D.K.,] had
been arguing with Mr. Barnett over money that he owed them.” Id. at 216.
While Det. Schwomeyer was speaking with D.K. he continuously looked at his
father as if he was waiting for his father to speak up on his behalf. During this
conversation Kirk repeatedly put his head down as if he was ashamed of what he had
been caught doing with his son. Detective Schwomeyer averred that he has worked as a
case agent, undercover, team leader, and supervisor in hundreds of cases involving two or
21
more individuals working together for the common goal of manufacturing, packaging,
and distributing illegal narcotics. He further stated his belief that Kirk utilized his
sixteen-year-old son to sell cocaine and prescription medication so that he will not get
caught dealing drugs. It was Detective Schwomeyer’s opinion that Kirk supervises his
son’s dealings and assists his son in the collection of money when necessary. Both Kirk
and D.K. gave their address as 918 North Tuxedo Street. Based upon the totality of the
evidence, there was a substantial basis for concluding that probable cause existed that
evidence of dealing would be found at the Tuxedo Street home. The trial court did not
err in granting the search warrant or in admitting the evidence obtained pursuant to the
search warrant.
IV. Admission of Search Warrant at Trial
Kirk maintains that the trial court abused its discretion by admitting the search
warrant into evidence as State’s Exhibit 8. Specifically, he contends that, given the
nature and quantity of the information contained in the warrant, he was prejudiced by the
admission of the warrant because “[s]ome of the items authorized for seizure [were]
suggestive of a major drug ring, rather than the two-person conspiracy which the State
alleged.” Appellant’s Br. at 43. We review a trial court’s decision concerning the
admission of evidence for an abuse of discretion. Dixon v. State, 967 N.E.2d 1090, 1092
(Ind. Ct. App. 2012). An abuse of discretion occurs when the trial court’s decision is
against the logic and effect of the facts and circumstances before it. Id.
Documents, such as search warrants and probable cause affidavits, often contain
highly prejudicial statements. Brown v. State, 746 N.E.2d 63, 67 (Ind. 2001). As such,
22
“[s]earch warrants and probable cause affidavits, although potentially admissible, should
be presented only to the court and not to the jury.” Grund v. State, 671 N.E.2d 411, 417
(Ind. 1996). If the adequacy of the warrant is challenged, the State is obligated to
introduce the search warrant and probable cause affidavit into evidence, but these
documents should only be presented to the trial court as the issue of the warrant’s validity
is not an issue for the jury. Winbush v. State, 776 N.E.2d 1219, 1223 (Ind. Ct. App.
2002) (citing Guajardo v. State, 496 N.E.2d 1300, 1303 (Ind. 1986)), trans. denied.
Prior to trial, and again during trial, Kirk challenged the validity of the search
warrant and the admission of evidence collected under the authority of the warrant.
Appellant’s App. at 187; Tr. at 186-87. As such, the State was obligated to introduce the
search warrant to the trial court. Winbush, 776 N.E.2d at 1223 (citing Guajardo, 496
N.E.2d at 1303). However, the State was limited to presenting the issue of the warrant’s
validity to the trial court and not to the jury. Id. The record before us reveals that these
strictures were followed.
Outside the presence of the jury, the State requested, and the trial court
specifically agreed, that the search warrant would not be published to the jury:
[DEFENSE COUNSEL]: In addition, I believe that a search was not
admissible. It’s something that involves -- it’s something that can be
rescinded [sic] to the Judge and brought in preliminarily, assuming its
admissibility, it’s not something that goes to the jury.
[PROSECUTOR]: We’re only offering it for the purpose to show the
legal authority to enter the home. We don’t intend to publish it to the jury.
The only question I’m going to ask him is what would be the address, was
it authorized in the search warrant and kind of go through the procedure of
how a judge signed it and gave them authority to do so.
23
THE COURT: Are you not going to put in what was recovered?
[PROSECUTOR]: He kind of testifies to that.
THE COURT: (Undecipherable)
[DEFENSE COUNSEL]: I don’t think either of them should come in.
They are not going to the jury, I don’t know why they can even be
admitted.
[PROSECUTOR]: Because it shows legal authority to search the home.
THE COURT: Objection overruled. Show it will be admitted for that
purpose.
Tr. at 187-88. Here, the validity of the warrant was at issue, and the trial court allowed
the State to admit the warrant for a limited purpose. Under the facts before us, the trial
court committed no error in admitting the search warrant into evidence.
V. Sufficiency of the Evidence
Kirk contends that the evidence presented at trial was insufficient to support his
convictions. Specifically, he contends that the State failed to prove beyond a reasonable
doubt that he committed conspiracy to commit dealing in cocaine and conspiracy to
commit dealing in a controlled substance. Because Kirk asks this court to reverse his
convictions, discharge his two conspiracy counts, “and remand for a new trial on the
remaining counts,” we also address the issue of whether there was sufficient evidence to
convict Kirk of neglect of a dependent as a Class C felony and possession of marijuana as
a Class A misdemeanor.
Our standard of review in sufficiency matters is well settled. We consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867
24
N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh
evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could find
the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v.
State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v. State, 751
N.E.2d 331, 334 (Ind. Ct. App. 2001)).
A. Neglect of a Dependent
To convict Kirk of neglect of a dependent as a Class C felony, the State was
required to prove beyond a reasonable doubt that Kirk, having the care of a dependent,
knowingly or intentionally placed the dependent in a situation that endangered the
dependent’s life or health and that the neglect is the result of a violation of Indiana Code
section 35-48-4-1—dealing in cocaine or a narcotic drug. Ind. Code § 35-46-1-4. The
legislature defined “dependent” to mean “an unemancipated person who is under
eighteen (18) years of age.” Ind. Code § 35-46-1-1. Here, the evidence revealed that
D.K. was sixteen years old at the time he was arrested with Kirk. Tr. at 236. When
asked at trial how he was related to Kirk, D.K. responded that Kirk was his “father.” Id.
at 238. Barnett testified that he saw Kirk and D.K. outside his home and thought they
had come to collect an alleged drug debt. Id. at 93. Barnett testified that he saw D.K.
pointing a handgun toward the ground, and Kirk was standing next to him. Id. at 93, 96-
97. A search incident to arrest revealed that D.K. had a stolen, loaded, handgun tucked
into his waistband, a baggie of cocaine in his front pocket, $120 in cash, and eighteen
pills of acetaminophen with codeine in a pill container with the name “Richard Dodd” on
25
the label. Id. at 126-27. D.K. testified that he did not know a person named Richard
Dodd. This was sufficient evidence from which the jury could have concluded that Kirk,
as the father of dependent D.K., knowingly or intentionally placed D.K. in a situation that
endangered his life or health and that the neglect arose in the context of collecting a debt
related to dealing in cocaine.
B. Possession of Marijuana
To obtain a conviction against Kirk for possession of marijuana, as a Class A
misdemeanor, the State was required to prove beyond a reasonable doubt that Kirk
knowingly possessed marijuana in an aggregate amount of 30 grams or less. Ind. Code §
35-48-4-11. Here, Detective Schwomeyer testified that when the police searched Kirk
incident to his arrest, they discovered “a paper towel . . . which contained some marijuana
cigarettes.” Tr. at 23. A Laboratory Examination Report, which was introduced by
stipulation of the parties, id. at 287, confirmed that the substance in the cigarettes was
marijuana. State’s Ex. 35. This was sufficient evidence to sustain his conviction for
possession of marijuana as a Class A misdemeanor.
C. Conspiracy to Commit Dealing in Cocaine
Kirk contends that his conviction for conspiracy to commit dealing in cocaine
should be reversed because the State failed to prove an agreement between Kirk and D.K.
It has long been the law that a conspiracy conviction may rest on circumstantial evidence
alone, but “evidence of a mere relationship or association is not sufficient.” Washington
v. State, 807 N.E.2d 793, 797 (Ind. Ct. App. 2004) (citing Williams v. State, 274 Ind. 94,
95, 409 N.E.2d 571, 573 (1980)). “The circumstantial evidence or conduct of the parties
26
must be such that it supports the inference that there existed ‘an intelligent and deliberate
agreement between the parties’ to commit the charged felony offense. Id. (quoting Frias
v. State, 547 N.E.2d 809, 811 (Ind. 1989), cert. denied, 495 U.S. 921 (1990).
The trial court instructed the jury, without objection, that to convict Kirk of
conspiracy to commit dealing in cocaine, the State had to prove beyond a reasonable
doubt that Kirk: (1) agreed with D.K.; (2) to commit the felony crime of dealing in
cocaine, which is to possess with intent to deliver cocaine; (3) with intent to commit the
crime; and (4) D.K. performed an overt act in furtherance of the agreement by possessing
cocaine. Appellant’s App. at 245-46.10
Kirk’s only argument as to this count is that there is insufficient evidence that he
had an agreement with D.K. to deal in cocaine. Excluding from consideration the
evidence of D.K.’s statements to police and the testimony regarding the cell phones texts,
the following evidence was sufficient to support Kirk’s conviction for conspiracy to
commit dealing in cocaine.
Kirk was present on several occasions when D.K. sold cocaine to Barnett. Tr. at
84-85, 112. While driving Barnett to pick up money he was owed, Kirk said that Barnett
owed D.K. money for drugs that Barnett had purchased. Id. at 114-15. Barnett heard
Kirk tell D.K. that Barnett owed D.K. money for drugs and that Barnett was in possession
of cocaine. Id. at 92-93. D.K. went to Barnett’s home to collect on the debt, but came
away without payment. Id. at 93, 106. On June 19, 2010, Barnett passed by Kirk’s home
10
Kirk’s original appendix was returned to Kirk by the Clerk of Courts. On April 2, 2012, Kirk
filed “Appellant’s Amended Appendix.” For ease of reference we will refer to the Amended Appendix as
Appellant’s App.
27
while walking home from work. Upon seeing Barnett, Kirk said, “You are going to get
beat down.” Id. at 90, 96. Later that evening, Barnett saw Kirk and D.K. across the
street near his house. D.K. had a gun in his hand, which was pointed at the ground. Kirk
was standing beside D.K., and the two were “talking towards [Barnett] down the street.”
Id. at 98. At trial, Barnett testified that he heard Kirk yell, “We going to get him.” Id. at
97. Barnett testified that he assumed Kirk and D.K. were there to collect on the debt they
believed Barnett owed for a prior cocaine purchase. Id. at 100. Barnett called 911.
When police searched D.K. incident to arrest, he had cocaine and money on him. At the
scene, Kirk told Detective Schwomeyer that he had been on Tuxedo Street because “the
guy owed him money.” Id. at 229. Based upon all of the above, we conclude that the
State presented sufficient evidence to establish beyond a reasonable doubt that Kirk, with
intent to commit dealing in cocaine, agreed with D.K. to sell cocaine, in furtherance of
which both Kirk and D.K. performed the overt act of convening at Barnett’s home to
collect the drug debt that Kirk told D.K. he was owed. See Stokes v. State, 801 N.E.2d
1263, 1273-74 (Ind. Ct. App. 2004) (sufficient evidence of conspiracy to commit dealing
in cocaine where, on day in question, surveillance video showed alleged co-conspirator
dealing in crack cocaine, defendant counting money given to him by co-conspirator, and
both sitting on porch together all day), trans. denied.
Here, the evidence of D.K.’s statements to police and the cell phone texts were
unnecessary for the conviction, and their introduction at trial did not affect Kirk’s
28
substantial rights. The error of introducing this evidence, if any, was harmless.11
D. Conspiracy to Commit Dealing in a Controlled Substance
Kirk contends that his conviction for conspiracy to commit dealing in a controlled
substance should be reversed because the State failed to prove that Kirk and D.K. had an
agreement to deal controlled substances. We agree. Here, the only evidence that Kirk
knew about the sale of pills came from D.K.’s statements and Detective Schwomeyer’s
testimony regarding the cell phone texts, both of which were improperly admitted
evidence. This evidence was as follows.
Detective Schwomeyer testified about his conversation with D.K. as follows:
I asked [D.K.] why was he out here dealing cocaine and carrying a pistol,
sixteen years old. His response [was] that times were tight, that he had to
help out the family, said there wasn’t food in the house. I asked him, you
know, that doesn’t give you any right to be out here, you are sixteen years
old, and you have got a loaded gun, carrying a gun, selling cocaine and
selling pills. And he said, “But I’m with my dad,” which shocked me.
Tr. at 174. The evidence of the content of the cell phone texts came from the testimony
of Detective Schwomeyer and Officer Nelson. Detective Schwomeyer testified that he
recalled that one text message was from “someone requesting to purchase marijuana, and
[another] one was someone requesting to purchase pain pills.” Id. at 180. While Officer
Nelson did not recall the exact language of the text messages, he recalled that they were
from “people wanting to buy drugs,” i.e., “pills” and one other drug that Officer Nelson
could not remember. Id. at 129.
11
We further note that the benefit of introducing the text messages, if any, would have flowed to
Kirk. Detective Schwomeyer testified recalling that one text message was from “someone requesting to
purchase marijuana, and [another] one was someone requesting to purchase pain pills.” Tr. at 180. This
testimony would have had no probative value in proving the charge of conspiracy to commit dealing in
cocaine.
29
This evidence was the only thing that proved Kirk conspired with D.K. to sell
controlled substances. As discussed above, the trial court abused its discretion in
admitting the evidence of D.K.’s statements and the testimony regarding the cell phone
texts. Here, the error was not harmless. We therefore reverse Kirk’s conviction as to the
count of conspiracy to commit dealing in a controlled substance and remand to the trial
court so that his sentence may be changed accordingly.
Affirmed in part, reversed in part, and remanded with instructions.
BAKER, J., and BROWN, J., concur.
30
Gregory Kirk v. State of Indiana
Combined Opinion