MEMORANDUM DECISION
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 FILED
the defense of res judicata, collateral Sep 24 2020, 8:19 am
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James N. Harris, II, September 24, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-870
v. Interlocutory Appeal from the
Wayne Superior Court
State of Indiana, The Honorable Gregory A. Horn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89D02-1912-F3-28
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-870 | September 24, 2020 Page 1 of 11
Case Summary
[1] On December 8, 2019, officers responded to a reported domestic incident.
When they arrived at the residence in question, the officers encountered James
Harris, II. Harris consented to the officers’ request to check the residence to
ensure that no one was in danger inside the residence. During this welfare
check, officers recovered thirty-eight grams of methamphetamine and a syringe
from the residence. Harris was subsequently charged with Level 3 felony
possession of methamphetamine and Level 6 felony unlawful possession of a
syringe. This interlocutory appeal follows the denial of Harris’s motion to
suppress the evidence recovered during the search of the residence. We affirm
and remand for further proceedings.
Facts and Procedural History
[2] On December 8, 2019, Richmond Police Officers Paul Hutchison and Quinten
Schuler were dispatched to 229½ North 10th Street to investigate a reported
“domestic with battery.” Tr. Vol. II p. 5. Officer Hutchison was advised that
Harris was a possible person of interest. When Officers Hutchison and Schuler
arrived at the residence, they observed that the door was partially open. Harris,
wearing only his underwear, appeared from an upstairs apartment after Officer
Hutchison announced himself and Officer Schuler as “Richmond Police.” Tr.
Vol. II p. 7. Harris consented after Officer Hutchison asked if they could
“come up and speak with him.” Tr. Vol. II p. 7.
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[3] Officer Hutchison informed Harris of “the nature of the call,” “[t]old him that it
was a domestic with a battery,” and “[a]sked if anybody else was in the
apartment.” Tr. Vol. II p. 9. Harris, who, based on Officer Hutchison’s
training and experience as a police officer, appeared to be under the influence of
methamphetamine, told Officer Hutchison that “there was no body else there,
he was not fighting with anyone.” Tr. Vol. II p. 9. Harris consented to Officer
Hutchison’s request for permission for him and Officer Schuler to “look
through the apartment for the … other side of the domestic dispute” and to
verify that “everybody’s ok.” Tr. Vol. II p. 10.
[4] Officer Hutchison first looked in a bedroom “where [he] saw [Harris] coming
from.” Tr. Vol. II p. 11. The bedroom, which was “pretty messy,” contained
male clothing and a bed. Tr. Vol. II p. 11. As Officer Hutchison walked
toward a closet, he stepped on a pair of jeans that were on the floor. Officer
Hutchison felt “a ball of a … crystal like substance” shift inside a pocket of the
jeans underneath his foot and heard “crackling noises” as he stepped on the
jeans. Tr. Vol. II p. 12. Officer Hutchison, again based on his training and
experience as a police officer, immediately recognized the item he stepped on as
being consistent with methamphetamine. After verifying that no one was in the
closet, Officer Hutchison “returned back to the” jeans, picked up the jeans, and
retrieved the contraband from the right pocket. Tr. Vol. II p. 15. The
contraband was packaged “in a plastic bag, tied off,” consistent with how
Officer Hutchison had “come into contact with methamphetamine in the past.”
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Tr. Vol. II p. 15. Officer Hutchison continued the search, ultimately verifying
that no one else was present in the apartment.
[5] After Officer Hutchison showed Harris the methamphetamine recovered from
the jeans, Harris indicated that that “it was not his” and that it belonged to “the
female that was in the apartment” before the officers arrived. Tr. Vol. II p. 16.
Harris also indicated that the jeans from which Officer Hutchison recovered the
methamphetamine “weren’t his.” Tr. Vol. II p. 16. Harris was placed under
arrest after he got dressed, putting on clothes and shoes that were intermingled
with the jeans that Officer Hutchison had stepped on. Testing subsequently
confirmed that the contraband was approximately thirty-eight grams of
methamphetamine. Officers Hutchison and Schuler also recovered a syringe
from a pot of water in the kitchen.
[6] On December 9, 2019, the State charged Harris with Level 3 felony possession
of methamphetamine and Level 6 felony unlawful possession of a syringe. The
State also alleged that Harris was a habitual offender. Harris filed an amended
motion to suppress the evidence recovered during the search of the apartment
on February 18, 2020.1 Following a hearing, the trial court denied the motion
to suppress, finding that Harris “did not have standing to challenge the
constitutionality of the search” of the jeans. Appellant’s App. Vol. II p. 60.
1
The initial motion to suppress was filed on January 29, 2020.
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Discussion and Decision
[7] Harris contends that the trial court erred in denying his motion to suppress.
We review a trial court’s denial of a motion to suppress in a
manner similar to review of other sufficiency issues. Taylor v.
State, 689 N.E.2d 699, 702 (Ind. 1997). There must be
substantial evidence of probative value in the record to support
the ruling of the trial court. Id. We do not reweigh the evidence,
and we consider conflicting evidence most favorably to the trial
court’s ruling. Id.
Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013). However, “[w]hen the trial
court’s denial of a defendant’s motion to suppress concerns the constitutionality
of a search or seizure, … it presents a question of law, and we address that
question de novo.” Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014).
[8] During the hearing on his motion to suppress, Harris argued that the
warrantless search of the jeans went beyond the scope of his consent. For its
part, the State argued that Harris did not have standing to challenge the
constitutionality of the search of the jeans. “When the constitutionality of a
search is challenged, a defendant has the burden of demonstrating a legitimate
expectation of privacy in the premises searched.” Gregory v. State, 885 N.E.2d
697, 704 (Ind. Ct. App. 2008), trans. denied. Acknowledging that Harris had the
burden to prove that he had a legitimate expectation of privacy in the
apartment, the trial court concluded that “[a]s the burden is upon Defendant to
prove standing and he has failed to do so, the Court must find that Mr. Harris
lacks standing to challenge the constitutionality of the search of the black
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jeans.” Appellant’s App. Vol. II p. 58. Harris challenges the trial court’s
decision on appeal, arguing that he had standing to challenge the search under
both the Fourth Amendment to the United States Constitution and Article 1,
Section 11 of the Indiana Constitution.
A. Fourth Amendment
[9] Fourth Amendment rights are personal and may not be
vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133–34, 99
S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978). A defendant
“aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by the search of a
third person’s premises has not had any of his Fourth
Amendment rights infringed.” Id. at 134, 99 S.Ct. at 425, 58
L.Ed.2d at 395. “[I]n order to challenge a search as
unconstitutional, a defendant must have a legitimate expectation
of privacy in that which is searched.” Livingston v. State, 542
N.E.2d 192, 194 (Ind. 1989) (citing Rakas v. Illinois). In reviewing
whether a privacy expectation exists under a Fourth Amendment
analysis, this Court also looks to whether the defendant has
control over or ownership in the premises searched. Lee v. State,
545 N.E.2d 1085, 1091 (Ind. 1989); Livingston, 542 N.E.2d at
194; Stout v. State, 479 N.E.2d 563, 566 (Ind. 1985). The burden
is on the defendant challenging the constitutional validity of a
search to demonstrate that he had a legitimate expectation in the
premises searched. Livingston, 542 N.E.2d at 194.
Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (brackets in original).
[10] The inquiry into whether an individual has a legitimate expectation of privacy
in a premises normally embraces two discrete questions. Smith v. Maryland, 442
U.S. 735, 740 (1979).
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The first is whether the individual, by his conduct, has “exhibited
an actual (subjective) expectation of privacy,” [Katz v. U.S., 389
U.S. 347, 361 (1967)]—whether … the individual has shown that
“he seeks to preserve [something] as private.” [Id. at 351]. The
second question is whether the individual’s subjective
expectation of privacy is “one that society is prepared to
recognize as ‘reasonable,’” [Id. at 361]—whether … the
individual’s expectation, viewed objectively, is “justifiable” under
the circumstances. [Id. at 353].
Id.
[11] In this case, the trial court found that Harris failed to establish that he had a
legitimate expectation of privacy in the apartment. In the amended motion to
suppress, Harris referred to the apartment as his “home.” Appellant’s App.
Vol. II p. 51. However, there was no evidence presented during the suppression
hearing indicating that Harris lived at the apartment or sought to preserve
anything as private.2 The trial court noted that Harris’s “appearance in front of
a police officer wearing nothing but his underwear would certainly lead the
common man to assume that [Harris] had an expectation of privacy in” the
apartment. Appellant’s App. Vol. II p. 58. That said, one could just as
reasonably assume that the female who had been involved in the reported
domestic incident with Harris had the ownership interest in the apartment but
had fled to safety.
2
Harris did not testify during the hearing that he resided in the apartment or present any evidence proving
that he lived in the apartment.
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[12] To the extent that Harris points to his consent for the officers to enter the
apartment as proof of his interest in the apartment, we conclude that Harris’s
act of giving the officers consent to enter the apartment for the limited purpose
of conducting a welfare check on any other potential occupants, without more,
is insufficient to prove that Harris controlled or owned the apartment. Given
the lack of evidence that Harris sought to preserve anything as private or to
prove control or ownership, we, like the trial court, conclude that Harris did not
have a reasonable expectation of privacy under these circumstances and
therefore lacked standing to challenge the constitutionality of the search
pursuant to the Fourth Amendment. See Peterson, 674 N.E.2d at 533 (“Because
we find that, as a matter of law, the defendant lacked standing to challenge the
search, we reject his claim that the admission of the shotgun violated his Fourth
Amendment rights.”).
B. Article 1, Section 11
[13] To establish standing pursuant to Article 1, Section 11, our
supreme court has stated that “a defendant must establish
ownership, control, possession, or interest in the premises
searched or the property seized.” [Peterson, 674 N.E.2d at 534].
The court has also stated that a “defendant must show a
subjective and objective expectation of privacy in the premises.”
Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (citing [Smith,
442 U.S. at 740]).
Allen v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), trans. denied.
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[14] “[T]he rights protected under the federal and state constitutions are consistently
described as ‘personal’ rights.” Id. at 1098–99. Just as “[a] person’s Fourth
Amendment rights against unreasonable search and seizure are personal,” Best
v. State, 821 N.E.2d 419, 424 (Ind. Ct. App. 2005) (citing Minnesota v. Carter,
525 U.S. 83, 88 (1998)), the Indiana Supreme Court has observed that Indiana
jurisprudence similarly establishes that the “‘right to be secure in their persons,
houses, papers and effects, against unreasonable search and seizure [under
Section 11] is a personal right of the individual whose person, house, papers or
effects are searched or seized.’” Peterson, 674 N.E.2d at 533–34 (quoting
Snedegar v. State, 196 Ind. 254, 257, 146 N.E. 849, 849–50 (1925)).
Indiana law has also imposed a requirement of standing to
challenge a search or seizure—a defendant cannot successfully
object to a search of the premises of another if such search does
not unlawfully invade his own privacy. Tongut v. State, 197 Ind.
539, 544, 151 N.E. 427, 429 (1926). If the facts fail to establish
that the alleged illegal search and seizure actually concerned the
person, house, papers or effects of the defendant, he will not have
standing to challenge the illegality. Earle v. State, 194 Ind. 165,
168, 142 N.E. 405, 406 (1924).
Id. at 534.
[15] Again, while Harris referred to the apartment as his home in the amended
motion to suppress, Harris failed to present any evidence during the suppression
hearing to prove that he had control or ownership of the apartment. Thus, as
we concluded above, Harris failed to prove that he had a reasonable expectation
of privacy in the apartment.
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[16] Harris also failed to prove that he had a reasonable expectation of privacy in the
jeans. Officer Hutchison’s testimony established that Harris was wearing only
his underwear when he and Officer Schuler first encountered Harris. When
Harris was placed under arrest and subsequently got dressed, he put on clothes
that were intermingled with the jeans in which the methamphetamine was
found. However, Harris specifically stated that the jeans in which the
methamphetamine was found “weren’t his.” Tr. Vol. II p. 16. Harris also
disavowed ownership of the methamphetamine seized by Officer Hutchison,
claiming that it belonged to the female who had been present in the apartment
prior to the officers’ arrival. By disavowing ownership of the jeans, Harris
extinguished any objective expectation of privacy that he might have had in the
jeans. Given that Harris lacked an objective expectation of privacy in both the
apartment and the item searched, we conclude that the trial court did not err in
finding that Harris lacked standing to challenge the constitutionality of the
search pursuant to Article 1, Section 11 of the Indiana Constitution.
[17] Because we conclude that Harris failed to meet his burden of proving that he
had a legitimate interest in the apartment, we affirm the trial court’s
determination that Harris lacked standing to challenge the constitutionality of
the search of the apartment. Furthermore, while arguments were made before
the trial court as to whether the warrantless search of the jeans exceeded the
scope of the welfare check or was justified by an exception to the general rule
requiring that police secure a warrant prior to conducting a search, the trial
court only ruled on the standing issue and did not issue a ruling on whether the
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warrantless search of the jeans was otherwise justified. As such, any question
as to whether the warrantless search of the jeans fell under an exception to the
general rule requiring a warrant is not before the court in the instant appeal and
is a question for another day.
[18] The judgment of the trial court is affirmed, and the matter is remanded for
further proceedings.
Najam, J., and Mathias, J., concur.
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