MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 03 2020, 8:44 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
Benjamin J. Church                                       Curtis T. Hill, Jr.
Church Law Office                                        Attorney General of Indiana
Monticello, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Trent A. Nice,                                           August 3, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2490
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Laura Zeman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D04-1901-CM-77



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020                       Page 1 of 6
                                             Statement of the Case
[1]   Trent Nice appeals his conviction of possession of a synthetic drug or synthetic
                                                                       1
      drug lookalike substance, a Class A misdemeanor. We affirm.


                                                     Issue
[2]   Nice presents one issue for our review: whether the trial court erred in

      admitting evidence that he claims was obtained in violation of his constitutional

      rights.


                                   Facts and Procedural History
[3]   On January 4, 2019, Officer Shutter of the Lafayette Police Department was

      patrolling in his marked police car when he saw Nice walking away from a

      house that was believed to be involved with synthetic marijuana dealing. The

      officer was familiar with Nice and was aware that Nice had an outstanding

      warrant. Officer Shutter parked his car in the next block and set out on foot.

      He intercepted Nice in an alley where the two men made eye contact. Officer

      Shutter called out Nice’s name, but Nice put his hands in his pockets and

      continued walking. The officer called his name, ordered him to stop, and

      ordered him to produce his hands several times to no avail. Officer Shutter

      then warned Nice that if he did not comply with the commands, he would be

      tased. Nice still refused to cooperate. Officer Shutter tased Nice and took him




      1
          Ind. Code § 35-48-4-11.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020   Page 2 of 6
      into custody. Once Nice was in custody, he was searched. During this search,

      Officer Shutter found a screwdriver, pocketknives, and a substance that was

      later determined to be a synthetic drug lookalike substance.


[4]   Based upon this incident, the State charged Nice with possession of a synthetic

      drug or synthetic drug lookalike substance, a Class A misdemeanor, and
                                                                        2
      resisting law enforcement, a Class C misdemeanor. Prior to trial, Nice moved

      to suppress the items obtained in the search, and the court denied the motion

      after a hearing. At a bench trial, Nice objected to the same evidence. The trial

      court overruled the objection, and Nice was found guilty of possession of a

      synthetic drug or synthetic drug lookalike substance. He was sentenced to 365

      days, all suspended. Nice now appeals.


                                       Discussion and Decision
[5]   Nice contends the evidence seized during the search subsequent to his arrest

      was obtained in violation of his constitutional rights. Specifically, he argues

      that Officer Shutter’s use of the taser to effect the arrest constitutes

      unreasonable and excessive force and that the fruits of the subsequent search

      are therefore inadmissible.


[6]   As a general matter, we review a trial court’s decision to admit evidence for an

      abuse of discretion. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).




      2
          Ind. Code § 35-44.1-3-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020   Page 3 of 6
      However, when a defendant’s challenge to the admission of evidence implicates

      the constitutionality of the search or seizure of the evidence, it raises a question

      of law, which we review de novo. Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind.

      2014).


[7]   A claim that a law enforcement officer has used excessive force in the course of

      an arrest is analyzed under the Fourth Amendment to the United States

      Constitution and its “‘reasonableness’” standard. Love v. State, 73 N.E.3d 693,

      697 (Ind. 2017) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,

      104 L. Ed. 2d 443 (1989)). The reasonableness inquiry in an excessive force

      case is an objective one: whether the officer’s actions are objectively reasonable

      in light of the facts and circumstances confronting him, without regard to his

      underlying intent or motivation. Love, 73 N.E.3d at 697.


[8]   To deter violations of the Fourth Amendment, evidence obtained in violation

      thereof generally is not admissible. Berry v. State, 121 N.E.3d 633, 637 (Ind. Ct.

      App. 2019), trans. denied. This is known as the exclusionary rule. See Hensley v.

      State, 778 N.E.2d 484, 488 (Ind. Ct. App. 2002). However, the exclusionary

      rule does not apply to every Fourth Amendment violation. U.S. v. Watson, 558

      F.3d 702, 705 (7th Cir. 2009). “[W]hen evidence is lawfully seized, police

      misconduct collateral to the seizure does not trigger the application of the

      exclusionary rule.” Id. More specifically, “[t]he exclusionary rule is used in

      only a subset of all constitutional violations—and excessive force in making an

      arrest or seizure is not a basis for the exclusion of evidence.” Evans v. Poskon,

      603 F.3d 362, 364 (7th Cir. 2010); see also U.S. v. Collins, 714 F.3d 540 (7th Cir.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020   Page 4 of 6
       2013) (holding that officers’ alleged use of excessive force in arrest of defendant

       did not require suppression of evidence seized during search after arrest);

       Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010) (citing Evans and

       following holding in Watson to explain that allegations of minor physical abuse

       coupled with aggressive questioning did not warrant suppression); U.S. v. Jones,

       214 F.3d 836 (7th Cir. 2000) (police officers’ allegedly unreasonable manner of

       entering apartment to execute search warrant did not require suppression of

       evidence). Thus, Officer Shutter’s alleged use of excessive force in effecting the

       arrest of Nice by using a taser does not require suppression of the evidence

       seized during the search incident to his arrest.


[9]    Additionally, “a suit for damages is the better remedy to address excessive force

       because a civil action is ‘better calibrated to the actual harm done the

       defendant’ than exclusion, which can impose great social costs.” Collins, 714

       F.3d at 543 (quoting Watson, 558 F.3d at 705).


[10]   Moreover, this is a case of inevitable discovery—as where the police obtain

       evidence by means of an illegal search but if they had not violated the law, they

       would have obtained the evidence lawfully anyway, and, on that ground, the

       evidence is admitted. Watson, 558 F.3d at 705 (citing Nix v. Williams, 467 U.S.

       431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)). Even if Officer Shutter had

       not used the taser to stop Nice, at some point the officer would have

       apprehended Nice and arrested him due to the outstanding warrant. As he did

       in this case, Officer Shutter would have conducted a search incident to arrest



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020   Page 5 of 6
                                                       3
       and found the lookalike substance. See, e.g., Collins, 714 F.3d at 542-43 (stating

       there was no “causal nexus” between officers’ use of force and discovery of

       money, which would have been discovered during a search incident to arrest).


                                                    Conclusion
[11]   Based on the foregoing, we conclude that the officer’s alleged use of excessive

       force in arresting Nice does not require suppression of the evidence seized

       during the search incident to his arrest and that a civil action is the more

       appropriate remedy to address the officer’s actions.


[12]   Affirmed.


       Bradford, C.J., and Brown, J., concur.




       3
         In order for a search incident to arrest to be valid, the arrest must be lawful. VanPelt v. State, 760 N.E.2d
       218, 222 (Ind. Ct. App. 2001), trans. denied (2002). That is to say, probable cause must be present to support
       the arrest. Id. Here, Nice concedes that Officer Shutter had probable cause to arrest him. See Appellant’s Br.
       p. 9. Evidence resulting from a search incident to a lawful arrest is admissible at trial. Johnson v. State, 137
       N.E.3d 1038, 1043 (Ind. Ct. App. 2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2490 | August 3, 2020                      Page 6 of 6
