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:

DARREN BEDWELL                                    GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  JOSEPH Y. HO
                                                  Deputy Attorney General

                                                                                FILED
                                                  Indianapolis, Indiana

                                                                            Apr 09 2012, 9:19 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




MYCHAEL NANCE,                                    )
                                                  )
       Appellant- Defendant,                      )
                                                  )
              vs.                                 )      No. 49A05-1108-CR-418
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee- Plaintiff,                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Peggy Hart, Master Commissioner
                            Cause No. 49G20-1001-FC-4005




                                        April 9, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                               Case Summary and Issue

       Mychael Nance was convicted of dealing in marijuana, a Class C felony. He

raises one issue for our review: whether police officers violated the Fourth Amendment

by searching his home without a warrant. Concluding exigent circumstances justified the

warrantless entry and search of Nance’s home, we affirm.

                             Facts and Procedural History

       In January 2010, the Indianapolis Metropolitan Police Department received a call

from an alarm company requesting police assistance.        An alarm was activated at a

residence, Nance’s home, and the home owner(s) was not responding.             Officers

Schlesinger and Schmidt arrived at the home and could hear the alarm. They discovered

the front door wide open and the storm door unlocked. The officers announced their

presence several times, but they heard no response. The officers entered the home and

began searching for anyone located inside.     On the first floor, Officer Schlesinger

observed a marijuana cigarette in an ashtray in the living room. The officers continued

into the basement, where they discovered numerous marijuana plants and growing

equipment. After hearing footsteps above, the officers ran upstairs and found Nance.

They arrested Nance and conducted a pat-down search. Officer Schlesinger testified that

he felt a squishy bag in Nance’s front pants pocket and it was immediately apparent to

him that it was marijuana.    Officer Schlesinger removed the bag and confirmed it

contained marijuana.

      Nance then confessed to the police officers he was responsible for the marijuana

grow and everything in his residence. The officers obtained a warrant and seized over


                                           2
three hundred marijuana plants, lighting equipment, power supplies, fertilizer, scales,

loose marijuana, and mail addressed to Nance.

         After initially entering into a plea agreement, Nance withdrew his guilty plea. He

thereafter moved to suppress evidence recovered from his residence. On April 7, 2011,

and June 9, 2011, the trial court heard evidence on Nance’s motion to suppress and the

charges against him. On July 14, 2011, the trial court entered a written order with

findings of fact and conclusions of law denying Nance’s motion to suppress evidence and

found Nance guilty of both possession of marijuana and dealing in marijuana. The

possession of marijuana charge merged and he was convicted of dealing in marijuana, a

Class C felony, and sentenced to two years in prison. Nance now appeals.

                                           Discussion and Decision

         “The standard of appellate review of a trial court’s ruling on a motion to suppress

is similar to other sufficiency issues. We determine whether substantial evidence of

probative value exists to support the trial court’s ruling. We do not reweigh the evidence

and consider conflicting evidence most favorably to the trial court’s ruling.” Litchfield v.

State, 824 N.E.2d 356, 358 (Ind. 2005) (citations omitted). 1 The Fourth Amendment of

the United States Constitution provides protection for individuals against unreasonable

searches and seizures. U.S. Const. amend. IV. The reasonableness of a search turns on

whether the subject of the search had an expectation of privacy and, if so, whether the

         1
            Ordinarily, where there has been a trial following a denial of a motion to suppress evidence, we would
review the trial court’s decision to admit the evidence at trial. Here, because the motion to suppress and trial were
held and decided simultaneously, we are reviewing the decision to deny Nance’s motion to suppress evidence.
Nonetheless, if we reviewed the trial court’s decision to admit evidence from the search of Nance’s home our
conclusion would not change. Because exigent circumstances existed justifying the warrantless search, the trial
court’s admission of evidence resulting from the search is not a manifest abuse of discretion resulting in the denial
of a fair trial. See Davis v. State, 749 N.E.2d 552, 556 (Ind. Ct. App. 2001) (“a trial court’s decision to admit
evidence at trial will not be reversed absent a showing of a manifest abuse of the trial court’s discretion resulting in
the denial of a fair trial.”) (citing Minnick v. State, 544 N.E.2d 471, 477 (Ind. 1989)), trans. denied.
                                                           3
expectation was objectively reasonable. Litchfield, 824 N.E.2d at 358. Generally, the

Fourth Amendment requires a lawful warrant to conduct a search or seizure, subject only

to a few specifically established and well-delineated exceptions. Bryant v. State, 660

N.E.2d 290, 300 (Ind. 1995) (citations omitted), cert. denied, 519 U.S. 926 (1996). One

such exception is when exigent circumstances compel quick action before a warrant can

be obtained. Id.

      In Bryant, police officers responded to an alarm at Bryant’s residence. Id. at 294.

Upon arrival, the officers found a door open with “fresh pry marks on it” and they

entered and searched the home, discovering hundreds of marijuana plants. Id. Our

supreme court concluded “police may enter private property to protect that property when

they reasonably believe the premises have recently been or are being burglarized.” Id. at

301. Thus, our supreme court concluded the search of Bryant’s home was justified due to

exigent circumstances. Id.

      Nance contends our supreme court incorrectly stated Fourth Amendment

jurisprudence by requiring that police have a reasonable belief that a residence was

recently or is being burglarized. Instead, he argues that, in addition to such exigent

circumstances, police also must have probable cause to believe the residence has been or

is being burglarized, and he asks us to alter our supreme court’s precedent accordingly.

For support, he cites Coolidge v. New Hampshire, 403 U.S. 443, 463 (1971) and Welsh

v. Wisconsin, 466 U.S. 740, 741 (1984). However, neither case addresses the application

of the Fourth Amendment to police officers searching a home based on a belief that it has

been or is being burglarized. Coolidge addresses the constitutionality of police searching

a defendant’s car without a warrant after the defendant has been arrested. 403 U.S. at
                                            4
463. Welsh involves police officers entering a home without a warrant in order to arrest

a hit-and-run suspect who was identified at the scene. 466 U.S. at 743. Neither case

involves exigent circumstances such as exist in Bryant and here. Further, “[i]t is not our

role to reconsider or declare invalid decisions of the Indiana Supreme Court.” Cont’l Ins.

Co. v. Wheelabrator Techs., Inc., 960 N.E.2d 157, 162 (Ind. Ct. App. 2011). At most, we

would recommend such a change to our supreme court by our interpretation of existing

law. We decline Nance’s invitation to do so.

      Alternatively, Nance argues the totality of the circumstances do not give rise to the

same exigent circumstances as Bryant because, unlike in that case, Officers Schlesinger

and Schmidt did not find fresh pry marks on Nance’s door. We disagree. A private

alarm company called the police department and informed them a home alarm was

activated and no one was responding to calls at the home. Upon arrival, officers found

the alarm still activated, the front door was wide open, and no one responded after they

announced their presence several times. Under the totality of the circumstances, the

officers could reasonably believe Nance’s home had recently been or was being

burglarized, and, thus, the exigent circumstances exception applies.

                                       Conclusion

      Based on the totality of the circumstances, police officers could have reasonably

believed Nance’s home had recently been or was in the process of being burglarized.

Thus, the exigent circumstances exception applies and the search of Nance’s home did

not violate the Fourth Amendment.       We therefore affirm the trial court’s denial of

Nance’s motion to suppress evidence.

      Affirmed.
                                            5
BAILEY, J., and MATHIAS, J., concur.




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