MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 22 2017, 5:41 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Jenkins, February 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1602-CR-399
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant Hawkins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G05-1410-MR-46576
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 1 of 12
[1] James Jenkins appeals his conviction for murder. Jenkins raises one issue
which we revise and restate as whether the court abused its discretion in
admitting certain evidence. We affirm.
Facts and Procedural History
[2] In the early morning hours of October 1, 2014, Raul Castaneda-Martinez,
Emmanuel Phillips, and others were gathered at a bonfire behind a house on
Minnesota Street in Indianapolis. After obtaining methamphetamine, they
went across the street to the home of Emmanuel’s aunt, Kim Phillips. While
there, Castaneda-Martinez decided to purchase more methamphetamine, and
another person phoned Jenkins for that purpose.
[3] Jenkins arrived at Kim’s house and sold methamphetamine to Castaneda-
Martinez. Before Jenkins left, Castaneda-Martinez told Jenkins that he also
was interested in purchasing cocaine. Jenkins later returned to the house, but
Castaneda-Martinez informed him that he no longer wanted to buy the cocaine.
Jenkins asked Castaneda-Martinez to speak outside. Emmanuel followed the
two men out onto the porch, but Jenkins told Emmanuel that he wanted to
speak to Castaneda-Martinez alone. Jenkins and Castaneda-Martinez then
walked down the street while Emmanuel stayed outside on the front porch.
[4] A few minutes later, Emmanuel heard gunshots. Kim, who was inside, heard
two gunshots that sounded like they were right in front of the house, and she
quickly locked the front door and crouched on the floor. Emmanuel ran to the
edge of the porch and looked in the direction that Castaneda-Martinez and
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 2 of 12
Jenkins had walked, and he saw two men run to a white SUV. In front of a
house a couple of doors down, he observed Jenkins standing over the top of
Castaneda-Martinez, who was on the ground. Jenkins faced Emmanuel,
looked directly at him, and fired two more shots down into Castaneda-
Martinez. He then ran to the white SUV and left with the other two men.
Castaneda-Martinez died as a result of the gunshot wounds.
[5] Emmanuel went to Castaneda-Martinez and observed that he was not
breathing. Emmanuel then returned to Kim’s house. He was terrified,
trembling, and kept saying that “Jay,” as he knew Jenkins, had shot his friend.
Transcript at 188. Emmanuel called the police tip line and told them what had
happened. Later that night, Emmanuel, Kim, and another person spoke with
police, told them that “Jay” shot Castaneda-Martinez, provided a physical
description of Jenkins, including his distinctive face and neck tattoos, and
identified Jenkins in photo arrays. Id. at 218.
[6] Later, Jenkins called Emmanuel and asked to meet him at a convenience store,
but Emmanuel did not go because he was afraid that something would happen
to him. The next time that Emmanuel saw Jenkins, Jenkins told him that he
“better keep it solid and, uh, if I don’t something will happen to me and my
family.” Id. at 136.
[7] Also, a few days prior to the murder of Castaneda-Martinez, someone crashed
a car into a gun store and stole twenty-five handguns. Jenkins became a suspect
in the burglary investigation after someone reported that he was attempting to
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 3 of 12
sell handguns stolen in the burglary. Officers conducting that investigation
obtained his cell phone number and applied for a court order to determine the
current location and historical locations of the phone. The affidavit detailed
information to establish probable cause to believe that Jenkins was in
possession of and trying to sell guns obtained in the burglary and that locating
him would likely be achieved by locating the phone that was the target of the
order. The affidavit was sworn to and submitted by Detective Ronald Gray of
the Indianapolis Metropolitan Police Department.
[8] The court ruled that probable cause existed to believe that Jenkins had
committed theft or receiving stolen property and that he could be apprehended
by locating the phone “through the use of Precision Location by way of GPS
technology to determine the location of the user of the Target Phone.”
Appellant’s Appendix at 216. The court ordered that the service provider
would give the police “GPS Precision Location for the Target Phone to
determine the movements of the Target Phone for a period of thirty (30) days.”
Id. The court ordered the service provider to supply the police with subscriber
identifying information, information to identify the phone, and cell site and
GPS location information from September 28, 2014, to the present. The order
states that, pursuant to Title 18 U.S.C. § 3124:
the Indiana State Police shall be authorized to initiate a signal to
determine the location of the subject’s mobile device on the
service provider’s network or with such other reference points as
may be reasonably available, Global Position System Tracing
and Tracking, Mobile Locator tools, R.T.T. (Real Time Tracking
Tool), Precision Locations and any and all locations, without
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 4 of 12
geographical boundaries, and such provider shall initiate a signal
to determine the location of the subject’s mobile device on the
service provider’s network or with such other reference points as
may be reasonably available and at such intervals and times as
directed by the law enforcement agent / agencies serving the
Order.
Id. at 218.
[9] Officers from the burglary investigation assisted homicide detectives in locating
Jenkins’s phone during the midmorning hours of October 1, 2014, the day
Castaneda-Martinez had been shot and killed. Utilizing an electronic
surveillance device, police narrowed the location to a home on South State
Avenue, and the police setup surveillance around the house, were provided a
photograph of Jenkins, and watched for approximately an hour or more to see
if they could locate him. At some point, police observed Jenkins and another
man exit the house and begin walking down the street, and Jenkins nervously
looked over his shoulder several times. After a detective recognized and
positively identified Jenkins, officers decided to make an arrest, and after an
officer activated his emergency lights Jenkins and the other man started
running. Following a foot chase of approximately fifteen or twenty minutes,
the police ultimately apprehended Jenkins. Police also recovered a silver and
black handgun, in which subsequent testing showed that the handgun was the
same gun used to kill Castaneda-Martinez, as well as Jenkins’s cell phone
which had been used to track him and contained a photograph of Jenkins
holding a gun similar to the handgun recovered at the scene.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 5 of 12
[10] On October 6, 2014, the State charged Jenkins with murder. On October 19,
2015, the court held a jury trial which ended in a mistrial. A second jury trial
commenced on December 14, 2015. At trial, Jenkins objected to any and all
evidence obtained by accessing the GPS for his cell phone, and the court
overruled his objections but stated that a full hearing on the suppression claims
would be held following the trial if he was convicted on the murder charge. On
December 16, 2015, the jury found Jenkins guilty.
[11] On December 30, 2015, Jenkins filed a Brief of Motion to Suppress Evidence,
and the State filed its response on January 12, 2016. On January 20, 2016, the
court held a hearing and denied Jenkins’s motion, ruling that “Whether the
information provided to our Magistrate here was enough, in my view it was,
but you’re kind of saying, maybe he didn’t understand it. And I can’t rule
based on what he understands. Just on what sense it makes to me and whether
his actions were reasonable.” Transcript at 1250.
[12] On February 5, 2016, the trial court sentenced Jenkins to sixty-three years in the
Department of Correction.
Discussion
[13] The issue is whether the court abused its discretion in admitting certain
evidence. Generally, we review the trial court’s ruling on the admission or
exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d
1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the decision is
clearly against the logic and effect of the facts and circumstances. Joyner v.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 6 of 12
State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Also, “[w]hen a trial
court’s evidentiary ruling depends on the interpretation of a statute, case law, or
a rule of evidence and not an ‘application [of those] to any particular set of
facts’, it presents a legal question we review de novo.” Patchett v. Lee, 60 N.E.3d
1025, 1028 (Ind. 2016). Even if the trial court’s decision was an abuse of
discretion, we will not reverse if the admission constituted harmless error. Fox
v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.
[14] Jenkins argues that the cell tower simulator, or “Stingray,” used by officers is
neither a pen register nor a trap and trace device, which are devices
contemplated by 18 U.S.C. § 3124. Appellant’s Brief at 24. He asserts that that
Ind. Code § 35-33-5-15(a)(1)(A), 1 read in conjunction with definitions provided
by Ind. Code § 35-33-5-0.5, “make it clear that GPS communications from a
cell phone must be considered telephonic communications that fall under Title
35, Article 33.5.” Id. at 22. Jenkins makes a number of arguments for the
proposition that the State failed to comply with Title 35, Article 33.5 of the
Indiana Code.
[15] The State argues that Jenkins waived appellate review of his statutory claims
because such claims are being raised for the first time on appeal, and that,
waiver notwithstanding, the police complied with Ind. Code § 35-33-5-12,
which governs the use of tracking devices. It maintains that Jenkins’s statute-
1
Ind. Code § 35-33-5-15 became effective on March 21, 2016, when it was added by Pub. L. No. 57-2016, §
3.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 7 of 12
based arguments are “premised on assumptions about the nature of the
technology employed in this case that is not supported by the record and, even
if it was true, would be irrelevant to this case.” Appellee’s Brief at 16. The
State asserts that, in the event police action did not comply with the court’s
order, both the good faith exception and attenuation doctrine apply, and in any
event any possible error in the court’s evidentiary ruling is harmless.
[16] We begin with the State’s assertion of waiver. At trial, the following exchange
occurred during the direct examination of Detective Gray:
Q Okay. And – now what – what specific action did you
take to assist?
A Uhm, I’d contacted some other people in our unit with the
Indiana State Police and asked them to assist us with
electronic surveillance.
[Defense Counsel]: Objection. May we approach.
THE COURT: You may.
(THE FOLLOWING BENCH CONFERENCE WAS HELD AT
SIDE BAR OUT OF THE HEARING OF THE JURY)
[Defense Counsel]: (Indiscernible.)
THE COURT: (Indiscernible) about the machinery or just
the (indiscernible.)
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 8 of 12
[Defense Counsel]: The fact that he’s referencing the joint
surveillance was through my client’s (indiscernible.) I suspect
that will be coming up next. I could ask him a few questions to
supplement the motion if – if the Court likes.
THE COURT: Response.
[Prosecutor]: I just want to say there’s nothing. There’s no
improper influence here.
THE COURT: This is something – this is what I said you
could argue about if there’s an adverse verdict.
[Defense Counsel]: Well, but I still – I still have to object at the
time that the reference is taking place (indiscernible.)
THE COURT: Are you satisfied the record’s been –
[Prosecutor]: He made his objection.
THE COURT: Anything else?
[Prosecutor]: I probably want to cite case law on
(indiscernible) and give a specific reference of that in Article 1,
Section 11 in the Indiana Constitution for (indiscernible.)
THE COURT: We’re agreeing that you’ve made the record
you need to make to preserve the issue. I think the State’s agreed
that the procedure I recommended which is if the verdict is
adverse to you, you can have that full blown hearing prior to
sentencing. . . .
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 9 of 12
Transcript at 271-273. The parties agreed to hold a motion to suppress hearing
following the trial if Jenkins was found guilty.
[17] In Jenkins’s Brief of Motion to Suppress Evidence, he moved the court for an
order of suppression “based on the 4th and 14th Amendments to the United
States Constitution and Article 1 Section 11 of the Indiana Constitution . . . .”
Appellant’s Appendix at 192. In support thereof, he asserted that “[t]he
application for the search warrant did not include any reference to the use of
cell tower simulators and the court order did not authorize such a device,”
noting that IMPD officers “used an electronic device (‘Stingray’) to search for
the cellular phone with the [Target Phone number] which led to” Jenkins’s
location. Id. He asserted that a cell tower simulator such as a Stingray
“simulates a cell site” which “causes or forces cell phones in an area to send
their signals – with all the information contained therein – to the cell-site
simulator,” and that the device “captures a vast array of information, including,
but not limited to, the cell phones’ electronic serial number (‘ESN’) or
international mobile subscriber identification (‘IMSI’).” Id. at 193. He argued
that the “law enforcement officer failed to disclose the use of ‘Stingray’ in the
application for the warrant effectively making it invalid,” and that the good
faith exception did not apply. Id. at 195. The State argued in its response that
the court’s order authorized the police activity and that “the type of device
employed is irrelevant, so long as law enforcement complied with the existing
law by obtaining prior judicial approval to activate its equipment.” Id. at 206.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 10 of 12
At no point did Jenkins mention Title 35, Article 33.5 of the Indiana Code or
make any argument related to any other violations of Indiana statute.
[18] Based upon our review of Jenkins’s objection and brief in support of his motion
to suppress, we find that he did not raise an objection at the trial court level
concerning purported violations of Indiana statute. Accordingly, we conclude
that he has waived his statutory arguments on appeal. See Moore v. State, 669
N.E.2d 733, 742 (Ind. 1996) (“Where a defendant fails to object to the
introduction of evidence, makes only a general objection, or objects only on other
grounds, the defendant waives the suppression claim.”) (emphasis added), reh’g
denied. Moreover, we agree with the State that the record is incomplete to
attempt to address Jenkins’s claims on the merits.
[19] We also observe that, even if Jenkins did not waive his arguments that the use
of the Stingray device violated the Indiana Code, the officers did not rely upon
the court’s order in good faith, and the attenuation doctrine did not apply under
these circumstances, we would find that any such error was harmless. On the
night of the shooting, Emmanuel Phillips, Kim Phillips, and another person
spoke with police, told them that “Jay” shot Castaneda-Martinez, provided a
physical description of Jenkins, including his distinctive face and neck tattoos,
and identified Jenkins in photo arrays. Transcript at 218. At trial, Emmanuel
testified that he and Castaneda-Martinez left a bonfire to go to Kim’s home,
that someone phoned Jenkins so that Castaneda-Martinez could obtain
methamphetamine, that when Jenkins arrived he sold methamphetamine to
Castaneda-Martinez, who indicated that he was also interested in purchasing
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 11 of 12
cocaine, and that when Jenkins returned with cocaine Castaneda-Martinez told
him he was no longer interested in purchasing it. Following this exchange,
Jenkins and Castaneda-Martinez left to speak outside, Emmanuel attempted to
follow, but Jenkins told Emmanuel that he wanted to speak to Castaneda-
Martinez alone. He testified that a few minutes later he heard gunshots, he
looked in the direction that Castaneda-Martinez and Jenkins had walked, saw
two men run to a white SUV and soon after observed Jenkins standing over the
top of Castaneda-Martinez, who was on the ground. Emmanuel testified that
Jenkins faced Emmanuel, looked directly at him, fired two more shots down
into Castaneda-Martinez, and ran to the white SUV and left with the other two
men. Accordingly, we conclude that any error was at most harmless. See
Tolliver v. State, 922 N.E.2d 1272, 1279 (Ind. Ct. App. 2010) (holding that
regardless of the admissibility of certain evidence, “two independent
eyewitnesses . . . whose testimony was wholly unrelated to and unaffected by”
the questioned evidence, “identified Tolliver as the shooter, and [one
eyewitness] connected Tolliver to a gun like the one used to kill [the victim],”
and that accordingly any alleged error in admitting the evidence was harmless),
trans. denied.
Conclusion
[20] For the foregoing reasons, we affirm Jenkins’s conviction for murder.
[21] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017 Page 12 of 12