MEMORANDUM DECISION
Feb 25 2016, 6:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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
Alan K. Wilson Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Dent, February 25, 2016
Appellant-Defendant, Court of Appeals Case No.
18A05-1509-CR-1339
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Linda Ralu Wolf,
Appellee-Plaintiff. Judge
Trial Court Cause No.
18C03-1502-F4-1
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Christopher Dent (Dent), appeals his conviction for
dealing in a schedule I controlled substance, a Level 4 felony, Ind. Code §§ 35-
48-4-2(a)(2); -2(d)(1) (2015); dealing in a schedule I controlled substance, a
Level 6 felony, I.C. § 35-48-4-2(a)(1); and maintaining a common nuisance, a
Level 6 felony, I.C. § 35-48-4-13(b)(2).
[2] We affirm.
ISSUE
[3] Dent raises one issue on appeal, which we restate as follows: Whether the trial
court abused its discretion when it admitted the evidence found pursuant to
Dent’s consent to search.
FACTS AND PROCEDURAL HISTORY
[4] On January 8, 2015, Corporal Jeff Stanley (Officer Stanley) of the Delaware
County Sheriff’s Department made a controlled buy of heroin from Dent with
the help of an informant at Dent’s residence on South Hackley Street in
Muncie, Indiana. At the time of the purchase, Dent was on home detention
pending pre-trial on an unrelated offense and was required to wear an electronic
monitoring device. The informant was given $60, which had been
photocopied, and was outfitted with a video recording device. The video
recording showed that the informant met with Dent, and Dent handed him a
small piece of folded paper containing 0.10 grams of heroin.
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[5] On January 20, 2015, Officer Stanley and his colleague, Corporal Lenny Popp
(Officer Popp), continued their investigation and went to Dent’s new residence
on North Macedonia Avenue in Muncie to potentially arrest Dent. Officer
Popp, wearing a full police uniform, knocked on the front door. Ricky
Shannon (Shannon) answered the door. The officer explained they were
looking for Dent, and Shannon “without saying come in, just kind of opened up
the door … [and] acknowledged that [the officer] could come into the residence
to talk to him.” (Transcript p. 40). Officer Popp entered the residence and
Officer Stanley followed. Dent’s sister and her young child were also present in
the residence. Neither Shannon nor Dent’s sister—who have a child together—
ever asked the officers to leave. The officers asked Shannon where Dent’s
home monitoring device was located. Shannon stated that it was in the kitchen
and walked the officers there. While following Shannon to the kitchen, Officer
Stanley noticed digital scales with a white powder on them in a bedroom
through the open door. Officer Stanley did not go in the bedroom, but asked
Officer Popp to look in as well. Officer Popp saw the digital scales and the
residue. Shannon stated that it was Dent’s bedroom.
[6] Officer Stanley learned that Dent might be at the community corrections office
and left to verify. Officer Popp remained in the residence to prevent destruction
of the evidence. He talked to Shannon and Dent’s sister without impeding their
freedom of movement. Officer Popp learned that the residence was Dent’s and
they rarely stayed there. During this time, neither Shannon nor Dent’s sister
asked Officer Popp to leave.
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[7] Meanwhile, Officer Stanley went to the community corrections office, saw
Dent sitting in the waiting room, and arrested him. Officer Stanley informed
Dent of the reason for the arrest and stated that he wanted Dent’s consent to
search Dent’s residence. Officer Stanley then drove Dent back to the residence.
Once they arrived, Officer Stanley removed Dent’s handcuffs. They were
outside of the residence when Dent stated that he wanted to speak with
Shannon. Officer Stanley allowed the two to talk and then read a consent to
search form to Dent. Dent became very belligerent, refused to sign the form,
and told Officer Stanley to get a search warrant. Officer Popp, still inside the
residence, heard a “ruckus” outside because Dent was “getting pretty fired up.”
(Tr. pp. 44, 354). Officer Stanley explained to Dent that he was going to obtain
a search warrant, that Dent would be arrested, and attempted to handcuff Dent,
but Dent pulled away. At that point, Officer Stanley placed Dent against the
outside wall of the residence and handcuffed him “us[ing] enough force to get
the job done.” (Tr. p. 29). Officer Popp walked outside and placed Dent in his
vehicle.
[8] Inside the vehicle, Officer Popp explained to Dent that they were narcotics
officers investigating him and reiterated that Officer Stanley was going to obtain
a search warrant. Officer Popp, assuming that Dent had requested a lawyer,
said that the officers could not talk to Dent because Dent had asked for a
lawyer. Dent responded, “I never said that. I never lawyered up. I will talk to
you guys and will give [my] consent.” (Tr. pp. 47, 357). Dent continued
talking and asked if he would be allowed to go free or given consideration if he
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gave the officers permission to search. Officer Popp explained that because
Dent had been selling drugs on in-home monitoring he would be going to jail
and further stated he could not make any promises or coerce Dent into signing
anything. Dent asked if he could talk to Officer Stanley.
[9] Officer Popp called Officer Stanley and informed him that Dent had changed
his mind and would consent to the search. The officers presented a consent to
search form to Dent, which stated, in pertinent part, as follows:
[H]aving been informed of my constitutional rights (Miranda
Warning), my right to not have a search made of my premises
and/or motor vehicle(s) hereinafter mentioned without a search
warrant, my right to refuse to consent to a search, and my right
to confer and speak with an attorney before I grant permission
for a search, and my right to confer and speak to an attorney
before I grant permission for a search and to have an attorney
appointed by the court for such purposes if I cannot afford one,
here by authorize, consent and allow. . . .
***
Indiana Pirtle Warning
You have the right to require that a search warrant be obtained
before any search of your residence, vehicle or other premises.
You have the right to refuse to consent to any such search. You
have the right to consult with an attorney prior to giving consent
to any such search. If you cannot afford an attorney, you have
the right to have an attorney provided to you at no cost.
(State’s Ex. 9).
[10] Dent signed the form in three different places. The officers searched the house.
In Dent’s bedroom, they discovered a loaded shotgun, a handgun underneath
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the mattress, syringes, and an orange cologne box with 4.13 grams of heroin
inside.
[11] On January 27, 2015, the State filed an Information charging Dent with: Count
I, dealing in a schedule I controlled substance, a Level 4 felony, I.C. §§ 35-48-4-
2(a)(2); -2(d)(1); Count II, dealing in a schedule I controlled substance, a Level
6 felony, I.C. § 35-48-4-2(a)(1); and Count III, maintaining a common
nuisance, a Level 6 felony, I.C. § 35-48-4-13(b)(2). On June 17, 2015, Dent
filed a motion to suppress the evidence found inside Dent’s residence, which
the trial court denied following an evidentiary hearing on June 26, 2015. At the
conclusion of a two-day jury trial, the jury found Dent guilty as charged on
June 30, 2015. On August 10, 2015, the trial court sentenced Dent to an
aggregate term of eight years executed at the Department of Correction.
[12] Dent now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[13] We initially note that Dent frames our standard of review with regard to the
trial court’s denial of his motion to suppress evidence. However, because Dent
appeals after a completed trial, the question of whether the trial court erred in
denying his motion to suppress is no longer viable. Reinhart v. State, 930 N.E.2d
42, 45 (Ind. Ct. App. 2010) (internal citations omitted). The issue is more
appropriately framed as whether the trial court abused its discretion when it
admitted the evidence at trial. Id. When we review a trial court’s ruling on the
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admissibility of evidence resulting from an allegedly illegal search, we do not
reweigh the evidence, and we consider conflicting evidence most favorable to
the trial court’s ruling. Id. We also defer to the trial court’s factual
determinations unless clearly erroneous. Id. However, we consider afresh any
legal question of the constitutionality of a search or seizure. Id.
II. Officers Entry into the Residence
[14] Dent claims that the officers’ initial entry into his residence was illegal. He
specifically asserts that Shannon lacked either actual or common authority over
the premises to consent to the officers’ entry.
[15] We have previously stated that a third party may consent to police officers
entering onto the property of another and searching the premises if actual
authority exists. Starks v. State, 846 N.E.2d 673, 679 (Ind. Ct. App. 2006). If
actual authority cannot be shown, then facts demonstrating that the consenting
party had apparent authority to consent could prove a lawful search. Primus v.
State, 813 N.E.2d 370, 374 (Ind. Ct. App. 2004). Under the apparent authority
doctrine, a search is lawful if the facts available to the officer at the time would
cause a person of reasonable caution to believe that the consenting party had
authority over the premises. Id. at 374-75. The State bears the burden of
proving that the third party possessed the authority to consent. Id. at 375.
[16] In Starks, an officer knocked on the door and a third party, someone other than
a homeowner, answered it. Starks, 846 N.E.2d at 679. The officer explained
that he was there to check on the welfare of the homeowner, and the third party
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stated that the homeowner could not come to the door because she had an
amputated leg. Id. The third party let the officers in and then escorted one of
the officers to the homeowner. Id. The third party clearly demonstrated his
sufficient knowledge and relationship to the property and the homeowner.
Because the third party was the homeowner’s grandson and a resident of the
home, we held that he had the authority to admit the officers into the house.
Id.
[17] Here, similar to Starks, someone other than the homeowner opened the door,
and Officer Popp explained that he was looking for Dent. Shannon stated Dent
was not there. He then “without saying come in … opened up the door and
just stepped back, so [the officers] walked in to talk to him.” (Tr. p. 40). See
McIlquham v. State, 10 N.E.3d 506, 512 (Ind. 2014) (citing United States v.
Villegas, 388 F.3d 317, 325 (7th Cir. 2004) (consent to enter held valid when the
defendant opened the door and allowed the police officers to enter after the
officers had identified themselves, asked permission to speak with the
defendant, and did not threaten the defendant or brandish their weapons) and
United States v. Walls, 225 F.3d 858, 863 (7th Cir. 2000) (consent to enter held
valid when the defendant opened the door and stepped back to allow the
agents’ entrance after they had identified themselves and what they were
investigating)). In essence, Shannon non-verbally consented to the officers’
entry.
[18] When asked about Dent’s home monitoring device, Shannon stated that it was
in the box in the kitchen and then escorted the officers there. Shannon
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demonstrated his sufficient relationship to or mutual use of the property
because at the time of the entry he had knowledge of Dent’s whereabouts, had
knowledge of the location of Dent’s home monitoring device, and was familiar
with the layout of Dent’s residence. Later, the officers learned that Shannon
knew Dent for several years, had blood relations to Dent, had his weapons in
Dent’s bedroom, and had an explicit permission to stay there that day and the
previous night. As such, it was reasonable for the officers to believe Shannon
had apparent authority to admit them into the house to check the monitoring
device and talk to the individuals inside. See Starks, 846 N.E.2d at 679.
III. Consent to Search
[19] Dent further asserts that his consent to search his residence was not voluntary.
Generally, a search warrant is a prerequisite to a constitutionally proper search
and seizure. Primus, 813 N.E.2d at 374 (internal citations omitted). When a
search is conducted without a warrant, the State has the burden of proving that
an exception to the warrant requirement existed at the time of the search. Id.
Warrantless searches and seizures inside the home are presumptively
unreasonable. Id. However, one well-recognized exception to the warrant
requirement is a voluntary and knowing consent to search. Id. The theory
underlying the consent exception is that, when an individual gives the State
permission to search either his person or property, the governmental intrusion is
presumably reasonable. Id.
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[20] Whether consent to a search was given voluntarily is a question of fact to be
determined from the totality of all the circumstances. State v. Cunningham, 26
N.E.3d 21, 25 (Ind. 2015) (internal quotation marks and citations omitted). We
consider conflicting evidence most favorably to the trial court's ruling, as well as
undisputed evidence favorable to the defendant. Id. It is the State's burden to
prove that consent to a search was in fact voluntarily given, and not the result of
duress or coercion, express or implied. Id.
[21] Dent specifically claims that the language of the Pirtle warning in the form
signed by him was not sufficient because it failed to state that he was “entitled
to the presence and advice of counsel prior to” consenting to the search.
(Appellant’s Br. p. 13) (emphasis original).
[22] In Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), our supreme court held that “a
person who is asked to give consent to a search while in police custody is
entitled to the presence and advice of counsel prior to making the decision
whether to give such consent.” Id. at 640. Our supreme court, however, further
refined the doctrine in Jones v. State, 655 N.E.2d 49 (Ind. 1995), stating that a
“person in custody must be informed of the right to consult with counsel about
the possibility of consenting to a search before a valid consent can be given.”
Id. at 54 (citations omitted). Here, following a Miranda warning, the officers
informed Dent of his Pirtle rights. The officers advised Dent that he had the
right to require a warrant before consenting to the search; that he had the right
to refuse to consent; that he had the right to consult with an attorney prior to
consenting; and that he had the right to have an attorney appointed at no cost if
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he could not afford one. Dent later testified at the suppression hearing that he
did, in fact, voluntarily signed the form. Now, Dent invites us to give the
original language of the Pirtle warning special powers. We are reluctant to do
that because it would require us to elevate form over substance. See, e.g., French
v. State, 754 N.E.2d 9, 15 (Ind. Ct. App. 2001) (where the purpose of a rule is
satisfied, this court will not elevate form over substance). We find that, in line
with the Jones decision, the language of the Pirtle warning contained in the
police form voluntarily signed by Dent was sufficient to inform Dent that he
had the right to consult with counsel before consenting to the search of his
residence.
[23] Dent finally contends that he was coerced into signing the consent form because
the officers told him that they would get a search warrant if he refused to
consent to the search. In Daniel v. State, 582 N.E.2d 364 (Ind. 1991), cert.
denied, our supreme court ruled that it was not improper for an officer to inform
a defendant that a warrant will be sought if consent is not given. Id. at 369.
In State v. Barker, 734 N.E.2d 671 (Ind. Ct. App. 2000), we also recognized that
there is a difference between an officer telling a defendant that a warrant will be
“obtained as opposed to merely sought.” Id. at 674.
[24] In Barker, the officers were investigating an anonymous tip that sixty-one year-
old Barker was growing marijuana in her home. Id. at 672. The officers went
to Barker’s residence, asked Barker if they could enter the house, and told her
they could get a search warrant if she refused them entrance. Id. Barker
cooperated and told the officers she had nothing to hide and that they could
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come in and look around. Id. The officers went inside and found ten
marijuana plants, potting soil, and lights in the basement. Id. After the search
and seizure, the officers presented Barker a “Permit to Search” form that Barker
signed. Id. Because of Barker’s age and relative inexperience with law
enforcement, we held that she was coerced into signing the form under the
circumstances. Id. at 674.
[25] Here, unlike the defendant in Barker, Dent was not inexperienced in his
dealings with law enforcement. He knew his rights and clearly revoked his
consent to search at least once. The record does not show that the officers used
the threat of a search warrant to make Dent sign the consent form at any point.
After revoking his initial consent, Dent was placed in Officer Popp’s vehicle
and then raised the issue again himself. Dent was hoping to get some leniency
for his cooperation and his consent to search. Officer Popp was very careful in
his conversation with Dent; he made it clear that the officers would not make
any promises and would not coerce him into signing anything. Also, unlike
Barker, where the reason for the search was an informant tip, here, the reason
for the search was more substantial—the video recording of the controlled buy
of heroin from Dent on January 8, 2015. The officers’ statement and ability to
get a search warrant were not illusory here. As such, we find that Dent’s
consent to the search of his residence was voluntary.
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CONCLUSION
[26] Based on the foregoing, we hold that the trial court did not abuse its discretion
in admitting the evidence found in Dent’s residence because Dent voluntarily
consented to the search.
[27] Affirmed.
[28] Najam, J. and May, J. concur
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Christopher Dent v. State of Indiana (mem. dec.)
Combined Opinion