MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 10 2019, 6:16 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kent Taderro Bailey, Jr., January 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2020
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1608-F4-4469
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 1 of 12
Statement of the Case
[1] Kent Bailey, Jr. appeals his convictions for unlawful possession of a firearm by
a serious violent felon, as a Level 4 felony; resisting law enforcement, as a Class
A misdemeanor; and possession of marijuana, as a Class B misdemeanor.
Bailey raises two issues for our review, which we restate as follows:
1. Whether the State demonstrated probable cause to support
a search warrant for Bailey’s residence.
2. Whether the State presented sufficient evidence to show
that Bailey constructively possessed a firearm found inside
his residence.
[2] We affirm.
Facts and Procedural History
[3] On August 1, 2016, Evansville Police Department (“EPD”) Officer Greg
Hosterman submitted a probable cause affidavit to the trial court in support of a
search warrant for a residence located at 779 Line Street in Evansville. BMV
records showed that Bailey lived at that residence. In relevant part, Officer
Hosterman stated as follows in his affidavit:
Officers have received multiple tips and complaints regarding
drug dealing activity at 779 Line St. Officer Doane with the EPD
has been flagged down by neighbors and concerned citizens
concerning the dealing activity. On today’s date, your affiant
was parked in an alley conducting surveillance of 779 Line St.
Your affiant observed a black 1997 Chevy pick[up] . . . arrive at
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 2 of 12
the residence, stay for a short time, and then leave after a female
got into the vehicle.
Officers Doane and Meeks were in the area and observed the
pickup truck after your affiant called off the description. Doane
and Meeks observed that the pickup truck had no license plate
light and failed to signal 200 feet prior to turning. Officers
conducted a traffic stop of [the] vehicle and identified David
Flaherty as the driver and [Krissy] Kirk as the passenger.
Flaherty has a suspended driver’s license. Kirk advised that she
actually lives at 779 Line St. although her license provides a
different address. Kirk further advised that she lives on Line St.
with her boyfriend Kent T. Bailey.
Officers removed both occupants and prepared for an inventory
search . . . . Without any prompting or questioning, Kirk advised
Officer Thomas that the purse inside the vehicle that she was
sitting next to was not her purse. Officer Thomas asked who it
belonged to, and Kirk replied that only the wallet inside the purse
belonged to her. Officer Thomas went to retrieve the wallet from
the purse and found a syringe in the wallet. Kirk then stated that
the wallet was not in fact hers. Kirk was handcuffed. Officer
Sarah Gibson arrived on scene and conducted a search of Kirk.
Gibson found a clear plastic baggie with a field weight of 14
grams of white crystal substance that field tested positive for
methamphetamine . . . . Once the baggie of meth was retrieved,
Kirk blurted out without any prompting that the baggie was 13.5
grams of meth.
Appellant’s App. Vol. 2 at 41-42. Based on those representations, the trial court
issued a search warrant for the residence at 779 Line Street.
[4] Officer Hosterman immediately returned to the address with other officers to
execute the warrant. Upon arriving, he observed two males standing on the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 3 of 12
front porch. As he approached them in full uniform and ordered them to stop,
“they ran inside the house.” Tr. at 21. Bailey was one of the two men.
[5] After officers secured the perimeter, they entered the residence. EPD Officer
William Shirley entered the residence and found it “dark on the inside.” Id. at
29. However, Officer Shirley observed Bailey “open[ing] the door” to a laundry
room that had “a very bright light” on the inside. Id. Bailey was inside that
room and opening the door away from his body such that Officer Shirley could
clearly see who was standing in the doorway. The third time Bailey opened the
door to the room, Bailey and the other individual exited the room. The two
men were promptly detained.
[6] The officers then searched the residence. Inside the laundry room, officers
observed a “service hole” about two feet up from the floor and to which a panel
covering had been removed. Id. at 48. Inside that hole, officers discovered a
loaded handgun. Under a mattress in a bedroom, officers discovered a loaded
handgun magazine. The magazine found in the bedroom fit the handgun found
in the laundry room. Bailey admitted that the bedroom in which the magazine
was found was his bedroom, and officers also found in that bedroom a
prescription bottle with Bailey’s name on it and the 779 Line Street address.
Officers also discovered some marijuana inside the residence.
[7] The State charged Bailey with unlawful possession of a firearm by a serious
violent felon, as a Level 4 felony; resisting law enforcement, as a Class A
misdemeanor; possession of marijuana, as a Class A misdemeanor; and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 4 of 12
possession of paraphernalia, as a Class C misdemeanor. At his ensuing jury
trial, Bailey objected to the evidence seized pursuant to the search warrant on
the theory that the State lacked probable cause to obtain the warrant. The trial
court overruled Bailey’s objection, and the jury found him guilty of unlawful
possession of a firearm, as a Level 4 felony; resisting law enforcement, as a
Class A misdemeanor; and possession of marijuana, as a Class B misdemeanor.
The court entered its judgment of conviction and sentence accordingly. This
appeal ensued.
Discussion and Decision
Issue One: Probable Cause to Support the Warrant
[8] On appeal, Bailey first asserts that the trial court erred when it admitted the
evidence seized pursuant to the warrant because, according to Bailey, the
warrant was not supported by probable cause. Bailey’s arguments that “police
violated his Fourth Amendment and Article 1, Section 11 rights” raise
“questions of law we review de novo.” Redfield v. State, 78 N.E.3d 1104, 1106
(Ind. Ct. App. 2017) (quotation marks omitted), trans. denied. As the United
States Supreme Court has explained with respect to the Fourth Amendment,
“as a general matter determinations of . . . probable cause should be reviewed de
novo on appeal,” while “findings of historical fact” underlying those legal
determinations are reviewed “only for clear error.” Ornelas v. United States, 517
U.S. 690, 699 (1996). The Indiana Supreme Court applies the same standard
under Article 1, Section 11. E.g., McIlquham v. State, 10 N.E.3d 506, 511 (Ind.
2014). In other words, we review whether probable cause exists “under a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 5 of 12
standard ‘similar to other sufficiency issues’—whether, without reweighing the
evidence, there is ‘substantial evidence of probative value that supports the trial
court’s decision.’” Id. (quoting State v. Richardson, 927 N.E.2d 379, 385 (Ind.
2010)).
[9] As our Supreme Court has explained:
The existence of probable cause is evaluated pursuant to the
“totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S.
213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).
Probable cause exists “when ‘there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.’” U.S. v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499,
164 L. Ed. 2d 195 (2006) (quoting Gates, 462 U.S. at 238, 103 S.
Ct. 2317). Significantly, “probable cause requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.” Gates, 462 U.S. at 245 n.13,
103 S. Ct. 2317. The trial court’s task is to determine whether
“there is a fair probability that contraband or evidence of a crime
will be found in a particular place[,]” id. at 238, 103 S. Ct. 2317,
while a reviewing court must “ensure that the magistrate had a
‘substantial basis for . . . conclud[ing]’ that probable cause
existed.” Id. at 238-39, 103 S. Ct. 2317 (quoting Jones v. US, 362
U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)).
Eaton v. State, 889 N.E.2d 297, 299 (Ind. 2008) (alterations and omissions
original to Eaton).
[10] Bailey asserts that the totality of the circumstances presented to the issuing
court failed to establish probable cause of criminal activity at Bailey’s residence.
In particular, Bailey contends that Officer Hosterman’s probable cause affidavit
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 6 of 12
cited uncorroborated hearsay from “neighbors and concerned citizens” about
the residence. See Appellant’s App. Vol. 2 at 41. Bailey also argues that “the
brief visit” of Kirk to the residence was “insufficient to corroborate the general
hearsay statements . . . .” Appellant’s Br. at 14. Accordingly, Bailey continues,
the issuance of the warrant was contrary to his Fourth Amendment and Article
1, Section 11 rights.1
[11] We cannot agree. “[A] probable-cause affidavit ‘need not reflect the direct
personal observations of the affiant’ but may instead rely on hearsay
information.” McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018) (quoting Aguilar
v. Texas, 378 U.S. 108, 114 (1964), abrogated on other grounds by Illinois v. Gates,
462 U.S. 213 (1983)). However, there must be either “some reliable
information establishing the credibility of the source” or “information that,
under the totality of the circumstances, corroborates the hearsay.” Id.
(quotation marks omitted).
[12] Here, whether or not Officer Hosterman’s recitation of general concerns from
the neighbors even mattered to the issuing court, the totality of the
circumstances presented in his probable cause affidavit readily corroborated
that hearsay. Officers were surveilling the residence based on the concerns of
1
Bailey asserts that his Article 1, Section 11 rights were violated based on the three factors discussed by our
Supreme Court in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). However, we have held that those
factors are not applicable to determine whether there was probable cause for the issuance of a search warrant.
Mehring v. State, 884 N.E.2d 371, 381 n.4 (Ind. Ct. App. 2008), trans. denied. Instead, as under the Fourth
Amendment, we evaluate whether the totality of the circumstances before the issuing court demonstrates
probable cause. E.g., McGrath v. State, 95 N.E.3d 522, 527-30 (Ind. 2018).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 7 of 12
neighbors. In the course of that surveillance, they observed a vehicle arrive for
a short period of time, after which Kirk entered the vehicle.
[13] At an ensuing traffic stop, Kirk stated she lived at 779 Line Street even though
her driver’s license showed a different home address. She stated that a purse
“that she was sitting next to” was not hers, only to then change her assertion to
be that the wallet inside the purse was hers although the purse itself was not,
only to then once again change her assertion to be that “the wallet was not in
fact hers” once officers found a syringe inside the wallet. Appellant’s App. Vol.
2 at 42. During a pat-down of Kirk, she repeatedly pulled away from the
officer. Once officers discovered methamphetamine on her person, to which
they gave a field weight of fourteen grams, Kirk “blurted out without any
prompting” that the methamphetamine weighed the specific amount of 13.5
grams. Id.
[14] We conclude that the probable cause affidavit presented sufficient information
that, under the totality of the circumstances, both corroborated the hearsay
from the neighbors and, even without that hearsay, supported the issuance of
the warrant. Thus, we cannot say that the trial court violated Bailey’s rights
under either the Fourth Amendment or Article 1, Section 11 when it issued the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 8 of 12
warrant or admitted the evidence seized pursuant to that warrant. We affirm
the trial court’s admission of the evidence accordingly. 2
Issue Two: Evidence of Possession
[15] Bailey next asserts that the State failed to present sufficient evidence to show
that he constructively possessed3 the firearm found inside his residence.
As we have explained:
In order to prove constructive possession of [contraband],
the State must show that the defendant has both: (1) the
intent to maintain dominion and control over the
[contraband]; and (2) the capability to maintain dominion
and control over the [contraband]. Wilkerson v. State, 918
N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added)
(quoting Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)).
“The capability prong may be satisfied by ‘proof of a
possessory interest in the premises in which [the
contraband is] found.’” Monroe v. State, 899 N.E.2d 688,
692 (Ind. Ct. App. 2009) (citing Gee, 810 N.E.2d at 340).
“This is so regardless of whether the possession of the
premises is exclusive or not.” Id. . . .
With regard to the intent prong of the test, where, as here,
a defendant’s possession of the premises upon which
contraband is found is not exclusive, the inference of intent
to maintain dominion and control over the [contraband]
2
In the alternative, the State asserts that the trial court did not err when it admitted the seized evidence at
trial because the good faith exception to an invalid warrant applies. Although the State’s argument is well
taken, we need not consider it.
3
We need not consider the State’s argument that Bailey actually possessed the firearm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 9 of 12
must be supported by additional circumstances pointing to
the defendant’s knowledge of the nature of the
[contraband] and [its] presence. Id. (citing Gee, 810
N.E.2d at 341). Those additional circumstances include:
(1) incriminating statements made by the defendant,
(2) attempted flight or furtive gestures, (3) location
of substances like drugs in settings that suggest
manufacturing, (4) proximity of the contraband to
the defendant, (5) location of the contraband within
the defendant's plain view, and (6) the mingling of
the contraband with other items owned by the
defendant.
Wilkerson, 918 N.E.2d at 462.
Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In
addition to the above six circumstances, we have also recognized
that the nature of the place in which the contraband is found can
be an additional circumstance that demonstrates the defendant’s
knowledge of the contraband. E.g., Carnes v. State, 480 N.E.2d
581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated
circumstances are nonexhaustive; ultimately, our question is whether
a reasonable fact-finder could conclude from the evidence that the
defendant knew of the nature and presence of the contraband. See Gray
v. State, 957 N.E.2d 171, 174-75 (Ind. 2011).
Johnson v. State, 59 N.E.3d 1071, 1073-74 (Ind. Ct. App. 2016) (last emphasis
added; footnote omitted).
[16] Bailey asserts that the State failed to show that he had a possessory interest in
the premises. Bailey is mistaken. He admitted that the bedroom in which the
loaded magazine was found was his bedroom; officers also found in that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 10 of 12
bedroom a prescription bottle with his name and the 779 Line Street address on
it. And Bailey’s BMV records show the 779 Line Street address as his “Legal”
and “Mailing” address since at least 2010. Ex. Vol. 1 at 65. 4 The State
presented sufficient evidence to show that Bailey had a possessory interest in
the residence.
[17] Bailey also asserts that the State failed to present sufficient evidence to show
that he knew of the nature and presence of the firearm inside the residence.
Again, we cannot agree. Officers found the firearm in a service hole inside the
laundry room shortly after they had observed Bailey in that room. They also
found a loaded magazine that fit the firearm underneath a mattress in a
bedroom that Bailey admitted was his, which room also contained a
prescription bottle belonging to Bailey. And upon the arrival of officers at the
residence to execute the warrant, Bailey fled. Thus, in light of Bailey’s own
statements, his attempted flight, the proximity of the firearm to him in the
laundry room, the relationship of the firearm to the loaded magazine, and the
mingling of the loaded magazine with his other items, the State presented
sufficient evidence to enable a reasonable fact-finder to conclude that Bailey
knew of the nature and presence of the firearm. Thus, we affirm his conviction
for possession of a firearm by a serious violent felon, as a Level 4 felony.
[18] Affirmed.
4
Our pagination of the Exhibits Volume is based on the .pdf pagination.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 11 of 12
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019 Page 12 of 12