MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 25 2017, 9:05 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew B. Bakewell, January 25, 2017
Appellant-Defendant, Court of Appeals Case No.
20A05-1603-CR-705
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1406-FB-61
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Matthew B. Bakewell (Bakewell), appeals his conviction
for dealing in methamphetamine, a Class B felony, Ind. Code § 35-48-4-
1.1(a)(1)(A); and possession of marijuana, a Class A misdemeanor, I.C. § 35-
48-4-11(1).
[2] We affirm.
ISSUE
[3] Bakewell presents us with one issue on appeal, which we restate as: Whether
the trial court abused its discretion by admitting evidence obtained pursuant to
a warrantless search.
FACTS AND PROCEDURAL HISTORY
[4] On June 6, 2014, Elkhart County Sheriff’s Deputy Bob Smith (Officer Smith)
received a tip from an unidentified member of the Drug Unit that someone was
manufacturing methamphetamine in room 124 of the Day Lite Inn, located in
Elkhart County, Indiana. Officer Smith, together with his trainee Elkhart
County Sheriff’s Deputy Eric Dilley (Officer Dilley), responded to the tip.
Upon arrival at the Day Lite Inn, the officers first stopped at the front desk to
determine the identity of the current resident in room 124. The manager
informed them that the room had been rented to and paid for by Lonna Gillison
(Gillison).
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[5] When the officers arrived at room 124, Officer Smith knocked on the door
several times. Neither officer noticed any unusual odor emanating from the
room. After several repeated attempts knocking on the door, a female voice
from inside the room inquired who was there. Officer Smith announced,
“Sheriff’s Department.” (Transcript pp. 19-20). The window curtain moved
and a woman looked out at the officers. After she shut the curtain, the officers
could hear the woman talking to someone inside the hotel room. Shortly
thereafter, the woman, later identified as Gillison, opened the door. Officer
Smith introduced himself and asked if he “could step into the room to talk to
the people inside.” (Tr. p. 24). Gillison replied, “Yes,” and stepped aside for
the officers to enter. (Tr. p. 24). Upon entering, the officers noticed a male,
later identified as Bakewell, sitting on one of the beds in the room. Officer
Smith explained that they were following up on an “anonymous tip that drug
use was going on” in the room. (Tr. p. 26). While talking, Officer Smith
noticed “a bud of what” the officer believed to be marijuana sitting on a
nightstand in between the two beds. (Tr. p. 27). Officer Smith did not mention
that he had seen the marijuana, nor did he place Bakewell and Gillison under
arrest.
[6] Officer Smith asked Gillison and Bakewell for their consent to search the room.
They both agreed to the request. Officer Smith walked around the room and
asked if he could look under the bed Bakewell was sitting on. Again, both
consented. Bakewell “even stood up and moved from the bed[.]” (Tr. p. 29).
Officer Smith picked up the mattress and noticed numerous baggies, as well as
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a coffee filter that contained a white substance believed to be
methamphetamine. At this point, Officer Smith read the Pirtle warnings to
Bakewell and Gillison, and asked again for permission to search the room.
“Bakewell would not respond whether he would give consent to search the rest
of the room[.]” (Tr. p. 31). Officer Smith called for backup to secure the room
while he applied for a search warrant. The search warrant was granted later
that night. A subsequent search of the hotel room revealed numerous items
used in the manufacturing of methamphetamine. When confronted with the
evidence, Bakewell admitted to having manufactured methamphetamine the
night before but added that he had not been planning on manufacturing
methamphetamine that night.
[7] On June 11, 2014, the State filed an Information, charging Bakewell with
Count I, dealing in methamphetamine, a Class B felony; Count II, possession
of methamphetamine, a Class D felony; and Count III, possession of
marijuana, a Class A misdemeanor. On May 29, 2015, Bakewell filed a motion
to dismiss the evidence discovered pursuant to a warrantless search. On
October 16, 2015, following a hearing, the trial court denied the motion. On
December 2, 2015, the trial court conducted a bench trial. At the close of the
evidence, the trial court took the matter under advisement. On January 19,
2016, the trial court entered an order finding Bakewell guilty on Count I and
III, and not guilty on Count II. On March 15, 2016, the trial court sentenced
Bakewell to thirteen years of imprisonment for dealing in methamphetamine
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and one year for possession of marijuana, with both Counts to be served
concurrently and five years suspended to probation.
[8] Bakewell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Bakewell contends that the trial court abused its discretion in admitting the
evidence discovered as a result of the warrantless search of the hotel room. The
State argued, and the trial court agreed, that no Fourth Amendment violation
occurred since the officers obtained a voluntary consent to enter and search the
hotel room. The standard of review for admissibility of evidence is an abuse of
discretion. Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011),
trans. denied. The trial court abuses its discretion only when its action is clearly
erroneous and against the logic and effect of the facts and circumstances before
the court. Id. Even when the trial court erred in its ruling on the admissibility
of evidence, this court will reverse only if the error is inconsistent with
substantial justice. Id.
[10] The Fourth Amendment to the United States Constitution generally prohibits
warrantless searches. Peel v. State, 868 N.E.2d 569, 574 (Ind. Ct. App. 2007).
The purpose of the Fourth Amendment is to protect the privacy and possessory
interests of individuals by prohibiting unreasonable searches and seizures. Id.
If a warrantless search is conducted, the burden is on the State to prove that, at
the time of the search, an exception to the warrant requirement existed. Id.
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That is, searches conducted without a warrant are per se unreasonable, subject
to a few well-delineated exceptions. Id. at 575.
[11] Hotel guests enjoy the same constitutional protection against unreasonable
search and seizure as do occupants of private residences. Id. An occupant of a
motel room has standing to challenge a search even, where, as here, he 1 or she
has not paid for the room. Ceroni v. State, 559 N.E.2d 372, 373 (Ind. Ct. App.
1990), trans. denied.
[12] One exception to the warrant requirement occurs when consent is given for the
search. Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006). The theory
underlying the exception is that, when an individual gives the State permission
to search either his person or property, the governmental intrusion is
presumably reasonable. Buckley v. State, 797 N.E.2d 845, 849 (Ind. Ct. App.
2003). When seeking to rely upon consent to justify a warrantless search, the
State has the burden of proving “‘that the consent was in fact voluntarily given,
and not the result of duress or coercion, express or implied.’” Campos v. State,
885 N.E.2d 590, 600 (Ind. 2008) (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 248, 93 S.Ct. 2014, 36 L.Ed.2d 854 (1973)). The voluntariness of a
defendant’s consent is determined from the totality of the circumstances.
Schneckloth, 412 U.S. at 248-49. Under the particularities of this case, Bakewell
1
The record reflects that Gillison paid for the hotel room.
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disputes the voluntariness of the consent to enter the room and the consent to
search the hotel room. We will discuss each consent separately.
I. Consent to Enter
[13] Bakewell contends that the “knock and talk investigation” employed by the
officers to gain entry into the room implicated his Fourth Amendment Rights.
(Appellant’s Br. p. 14). Bakewell maintains that because the officers were
trying to hide from the window when they first knocked on the door, the
officers “communicated to a reasonable person they were not at liberty to
ignore the police presence and go about their business.” (Appellant’s Br. p. 15).
[14] “A knock and talk investigation involves officers knocking on the door of a
house, identifying themselves as officers, asking to talk to the occupant about a
criminal complaint, and eventually requesting permission to search the house.”
Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003) (internal quotation and
citation omitted), trans. denied. The knock and talk procedure “does not per se
violate the Fourth Amendment.” Id. at 498. Neither probable cause nor
reasonable suspicion is a constitutional prerequisite for a knock and talk
investigation, and suspicion based on an anonymous tip is a proper basis for
officers to enter the curtilage of private property and make inquiries of the
occupants. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). The knock and
talk procedure does, however, implicate the Fourth Amendment if under the
totality of the circumstances a reasonable person would not feel free to refuse
the officers entry, ignore the officers’ inquiries, and go about his business.
Redden v. State, 850 N.E.2d 451, 458-59 (Ind. Ct. App. 2006), trans. denied. We
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have previously observed that a reasonable person may not feel free to ignore
officers’ entreaties if, for example there is a threatening presence of several
officers, one or more officers displays a weapon, an officer physically touches
the person, or the tone of the officer’s voice indicates that compliance with the
officer’s request might be compelled. Overstreet v. State, 724 N.E.2d 661, 664
(Ind. Ct. App. 2000), trans. denied.
[15] While we have noted that a knock and talk investigation is “inherently coercive
to some degree,” we cannot say that an illegal seizure occurred here. Hayes,
794 N.E.2d at 496. The evidence most favorable to the trial court’s ruling
reflects that after the officers had repeatedly knocked on the door, Gillison
inquired who was there. Officer Smith announced the presence of the “Sheriff’s
Department.” (Tr. pp. 19-20). When Gillison opened the door, Officer Smith,
in full police uniform, introduced himself and asked if he “could step into the
room to talk to the people inside.” (Tr. p. 24). The record indicates that
Gillison replied affirmatively and stepped aside for the officers to enter. Officer
Smith explained that they were investigating an anonymous tip of drug use.
There is no evidence that the officers touched Bakewell or Gillison, drew their
weapons, or used a forceful tone of voice. Accordingly, mindful of the
circumstances of this exchange, the officers’ conduct did not communicate to a
reasonable person that he or she was not at liberty to ignore the officers’
presence. See Redden, 850 N.E.2d at 458-59.
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II. Consent to Search
[16] Next, Bakewell contends that he and Gillison were in custody at the moment
the officers noticed the marijuana on the nightstand and therefore the Pirtle
warnings should have been administered prior to requesting consent to search
the room.
[17] Indiana’s law on consent to search derives from Pirtle v. State, 323 N.E.2d 635,
640 (Ind. 1975), which held that “a person who is asked to give consent to
search while in police custody is entitled to the presence and advice of counsel
prior to making the decision whether to give such consent.” Thus, “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.” Jones
v. State, 655 N.E.2d 49, 54 (Ind. 1995). We determine whether a person is “in
custody” by applying an objective test, asking whether a reasonable person
under the same circumstances would believe that he was under arrest or not free
to resist the entreaties of the police. Sellmer, 842 N.E.2d at 363.
[18] In support of his argument that he was in custody as soon as the officers entered
the room and noticed the marijuana on the nightstand, Bakewell refers to Peel v.
State, 868 N.E.2d 569 (Ind. Ct. App. 2007). 2 In Peel, five police officers and a
2
Bakewell also focuses on State v. Linck, 708 N.E.2d 60 (Ind. Ct. App. 1999), trans. vacated, in support of his
argument. In Linck, police officers were dispatched to Linck’s apartment to investigate a complaint of illegal
drug use. Id. at 61. Arriving at the apartment, the officers smelled burning marijuana. Id. After allowing the
officers to enter his apartment, the officers informed Linck of their investigation and asked him what the
problem was. Id. Linck replied that he had just smoked a joint. Id. Based on Linck’s response, the officers
inquired whether there was anything left. Id. at 62. Linck replied affirmatively and retrieved a bag of
marijuana from the refrigerator and one from the bedroom. Linck was then placed under arrest. Id.
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canine unit arriving at Peel’s motel room after a complaint noticed an odor of
marijuana emanating from the room. Id. at 572. After Peel opened the door,
the officers informed him about the complaint and asked him if he had been
smoking marijuana in the room. Id. Peel admitted to it, but informed the
officers that there was nothing left. Id. The officers directed Peel and another
occupant of the room to exit the room and one of the officers testified that
neither individual was “free to wander off.” Id. at 573. The other occupant
told the officers that he and Peel had been smoking marijuana earlier and
admitted to hiding the marijuana under the beds. Id. The officers asked for and
received permission to search the room. Id. Based on these circumstances and
the officers’ incriminating questions immediately after the occupant had
admitted to smoking marijuana in the room, the court concluded that Peel was
in custody at the moment the officers requested consent to search the room. Id.
at 577-78.
[19] Upon review, we find Peel easily distinguishable from the situation at hand.
Unlike the officers in Peel, Officer Smith did not ask Bakewell or Gillison any
incriminating questions upon noticing a bud of marijuana sitting on a table in
between the two beds. In fact, Officer Smith testified that he never mentioned
the marijuana on the nightstand.
However, we find Linck inapposite as Linck relies upon the lack of Miranda warnings prior to making
incriminating statements to the police; no request to search Linck’s apartment was ever made by the police
officers. See Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (“[G]iving an arrestee Miranda warnings [] does not
sufficiently inform him of his right to consult with counsel prior to consenting to a search”).
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[20] Based on the totality of the circumstances in light most favorable to the
judgment, we find that Bakewell was not in custody nor was he arrested when
Officer Smith requested consent to search the hotel room and therefore the
Pirtle warnings did not attach. At trial, Officer Smith explained that he had
informed Bakewell and Gillison that the officers were following up on a tip of
drug use in the room. Officer Smith testified that even though he had observed
a bud of marijuana, which appeared to be less than one gram, he did not notice
any smell of marijuana in the room. He stated that he did not mention his
observations to Bakewell or Gillison and affirmed that he would have allowed
them to exit if they had decided to walk out the room. At the moment the
request for a search of the room was made, Bakewell spoke voluntarily to the
officers, was not physically restrained nor was he asked any incriminating
questions or badgered to give consent. Only two officers were present and the
entire encounter from when the officers arrived at the hotel lasted only
approximately twenty-five minutes. Because Bakewell’s consent to a search of
the hotel room was not constitutionally defective, the trial court properly
admitted the evidence discovered following the search of the room.
III. Search Warrant
[21] Lastly, Bakewell contends that Officer Smith’s affidavit for search warrant was
insufficient to constitute probable cause as it failed “to establish the anonymous
tipster[’s] reliability[.]” (Appellant’s Br. p. 17). Specifically, Bakewell
maintains that “[t]here is no information available as to whether the informant
has given correct information in the past or the information’s hearsay that the
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unidentified individuals would be manufacturing methamphetamine at the
location.” (Appellant’s App. p. 17).
[22] In determining whether to issue a search warrant, “‘[t]he task of the issuing
magistrate 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
contraband or evidence of a crime will be found in a particular place.’” Jaggers
v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213,
238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). When reviewing a
magistrate’s decision to issue a warrant, the reviewing court applies a
deferential standard. Newby v. State, 701 N.E.2d 593, 598 (Ind. 1998). We will
affirm the magistrate’s decision to issue the warrant if the magistrate had a
“substantial basis” for concluding that probable cause to search existed. Id.
“Substantial basis” requires us to focus on whether the reasonable inferences
drawn from the totality of the evidence support the probable cause
determination. Id.
[23] The United States Supreme Court has held that uncorroborated hearsay from a
source whose credibility is itself unknown, standing alone, cannot support a
finding of probable cause to issue a search warrant. Gates, 462 U.S. at 227. The
federal test for ensuring the reliability of a hearsay statement in a probable cause
determination allows the use of hearsay only if the totality of the circumstances
corroborates the hearsay. Id. at 230-31. The reliability of hearsay can be
established in a number of ways, including where: (1) the informant has given
correct information in the past, (2) independent police investigation
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corroborates the informant’s statements, (3) some basis for the informant’s
knowledge is demonstrated, or (4) the informant predicts conduct or activities
by the suspect that are not ordinarily easily predicted. Jaggers, 687 N.E.2d at
183.
[24] Indiana Code section 35-33-5-2(b) provides:
When based on hearsay, the affidavit must either:
(1) Contain reliable information establishing the credibility of the
source and of each of the declarants of the hearsay and
establishing that there is a factual basis for the information
furnished; or
(2) Contain information that establishes that the totality of the
circumstances corroborates the hearsay.
[25] Although Officer Smith’s affidavit for search warrant contained a reference to
the hearsay of an “anonymous tip that methamphetamine was being
manufactured in [] hotel room [124],” the affidavit also included the Officer’s
discovery of the marijuana on the nightstand and the methamphetamine under
the mattress located pursuant to a valid consent to search. (State’s Exh. 1).
Accordingly, the reliability of the anonymous source was corroborated by the
results of Officer Smith’s investigation. See Jaggers, 687 N.E.2d at 183.
Therefore, as the totality of the evidence corroborated the hearsay, there was
sufficient probable cause to issue a search warrant for a continued search of the
hotel room.
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CONCLUSION
[26] Based on the foregoing, we hold that the trial court properly admitted the
evidence discovered pursuant to a valid consent to search and a search warrant.
[27] Affirmed.
[28] Crone, J. and Altice, J. concur
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Matthew B. Bakewell v. State of Indiana (mem. dec.)
Combined Opinion