                                                                  Aug 14 2013, 5:32 am




FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                             GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              IAN MCLEAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

NICK MCILQUHAM,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A05-1212-CR-631
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


       APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION
                    The Honorable Michael S. Jensen, Judge
                       Cause No. 49G20-1107-FB-47971



                                   August 14, 2013

                             OPINION–FOR PUBLICATION

BAKER, Judge
          The appellant-defendant Nick McIlquham is appealing his convictions for the

Unlawful Possession of a Firearm by a Serious Violent felon,1 a class B felony, Neglect

of a Dependent,2 a class D felony, Possession of Marijuana,3 a class A misdemeanor, and

Possession of Paraphernalia,4 a class A misdemeanor. McIlquham challenges the police

officers’ search of the apartment where he occasionally resided and the discovery of a

handgun, marijuana, and a scale in the residence. As a result, McIlquham argues that

these items should not have been admitted into evidence at trial. Finally, McIlquham

maintains that his conviction for possession of paraphernalia cannot stand because the

State failed to present sufficient evidence with regard to that offense.

          The State counters that the seizure of these items and their admission into

evidence did not violate McIlquham’s Fourth Amendment rights under the United States

Constitution because the search of the apartment was consensual and contends that the

community caretaking exception to the warrant requirement justified the warrantless

search.

          We conclude that McIlquham’s Fourth Amendment rights were not violated and

the evidence was properly admitted into evidence. Similarly, we find that the evidence




1
    Ind. Code § 35-47-4-5.
2
    Ind. Code § 35-46-1-4.
3
    Ind. Code § 35-48-4-11.
4
    I.C. § 35-48-4-8.3.
                                              2
was sufficient to support McIlquham’s conviction for possession of paraphernalia. Thus,

we affirm McIlquham’s convictions.

                                                    FACTS

          On July 5, 2011, around 9:00 a.m., McIlquham was sleeping in Amber Rolland’s

apartment in the Stone Lake Lodge Apartments (Stone Lake) on the south side of

Indianapolis. Around that time, Indianapolis Metropolitan Police Department (IMPD)

Officers Matthew McFadden and Daniel Disney responded to a call regarding a young

child standing near a pond at Stone Lake. When Officer McFadden arrived, he noticed

the little girl, later identified as “R.,”5 who appeared to be about three years old, and a

woman, standing next to the pond. Officer McFadden later recalled that R. was not

wearing a diaper. R. was naked from the waist down and was attempting “to eat Cheerios

off the ground.” Tr. p. 36.             At some point, when the officers were talking to R. and

Catherine Meyer, who was at the scene, McIlquham appeared and stated that he was R.’s

father. McIlquham stated that he had fallen asleep and that R. “must have gotten out of

the apartment.” Id. at 38. Officer McFadden informed McIlquham that he “needed to

come back to [the] apartment and make sure that the living conditions were [safe] for the

child . . . and that we would probably end up getting ahold of CPS (Child Protective

Services).” Id. at 39, 42, 85, 96. Officer Disney later recalled that McIlquham “said it

was okay” for the officers to follow him back to the apartment. Tr. p. 96. McIlquham

then picked up R. and started walking back to the apartment with Officer McFadden.

5
    R.’s last name does not appear in the transcript of the proceedings.
                                                        3
         When Officer McFadden and McIlquham arrived at the apartment, McIlquham

opened the door, where Officer McFadden saw McIlquham make a “bee line” for the

“kitchen . . . and walk . . . at a very fast pace to the kitchen.” Id. at 39. Officer

McFadden then saw McIlquham make “furtive movements” from the counter to his

pockets. Id. at 42. Officer McFadden explained that “not knowing whether [McIlquham]

grabbed any weapons . . . or anything that could have harmed me,” he placed

McIlquham’s hands behind him. Id. A patdown search disclosed that McIlquham “had

stuffed a bunch of some marijuana into his pockets.” Id.

         After restraining McIlquham, Officer McFadden noticed some scissors, cut

baggies, and marijuana on the kitchen counter. Id. at 43. After Officer McFadden told

McIlquham to sit down in the living room, Officer McFadden saw “a bunch of marijuana

[residue] all over the carpet” and on a child’s table. Id.

         Officer McFadden advised McIlquham of his Miranda6 rights. Thereafter, Officer

McFadden asked McIlquham if he lived at the apartment, to which McIlquham replied,

“sometimes.” Id. at 44.          In response to Officer McFadden’s questions, McIlquham

acknowledged that his name was not on the lease and informed them that Rolland had

rented the apartment.

         When Rolland arrived at the apartment and talked with the officers, they told her

that they had been summoned to check on R.’s welfare and explained to Rolland what

they had found in the residence. Officer McFadden explained to Rolland that because

6
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               4
drugs had been found in the apartment, CPS would be notified and a determination would

be made as to whether R. would be allowed to remain at the apartment. Thereafter,

Rolland read and signed a consent-to-search form for the officers to search the residence.

       In addition to the marijuana that the police saw on the kitchen counter, the living

room floor, and the child’s table, they discovered additional marijuana in the apartment’s

bedroom.    They also found a loaded .22 caliber handgun in a case under the bed.

McIlquham admitted that the marijuana and the gun belonged to him.

       McIlquham was later interviewed at the police station by IMPD Detectives.

McIlquham stated that the officers who found R. had “wanted to come back to my house

and make sure everything’s fit.” Ex. 19. McIlquham recounted: “I walked in the door

and I knew I had stuff laying out . . . . I tried to put it in my pocket so he didn’t see it

‘cause I knew he was gonna arrest me . . . he didn’t see me put it in my pocket . . . he

saw me reachin’ in my pocket.” Id. McIlquham again repeated that the drugs and the

handgun were his and that Rolland did not know about the items.

       On July 7, 2011, the State charged McIlquham with Count I, unlawful possession

of a firearm by a serious violent felon, a class B felony, Count II, neglect of a dependent,

a class D felony, Count III, dealing in marijuana, a class A misdemeanor, Count IV,

possession of marijuana, a class A misdemeanor, and Count V, possession of

paraphernalia, a class A misdemeanor.

       McIlquham subsequently entered an “open plea” to Count II, neglect, and to Count

IV, possession of marijuana. Tr. p. 15-22. The trial court took those pleas under

                                             5
advisement. Thereafter, the matter proceeded to a bench trial. McIlquham objected to

the items that were recovered during the search of the apartment and moved to suppress

the admission of those items. The trial court denied McIlquham’s motion to suppress,

and found him guilty of the remaining counts, except for the dealing in marijuana charge.

McIlquham was sentenced to an aggregate term of six years on all counts and he now

appeals.

                             DISCUSSION AND DECISION

                                  I. Search of Apartment

       McIlquham argues that the search of the apartment was improper and the police

officers’ discovery and seizure of the evidence should have been excluded from the

evidence at trial pursuant to his right to be free from unlawful search and seizure under

the Fourth Amendment. Specifically, McIlquham maintains that because neither he nor

Rolland validly consented to the search of the residence, the evidence should not have

been admitted.

       We initially observe that a trial court has broad discretion in ruling on the

admissibility or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.

Ct. App. 2009). The trial court’s ruling will be disturbed only upon a showing of an

abuse of that discretion. Id. An abuse of discretion occurs when the trial court’s ruling is

clearly against the logic, facts, and circumstances presented. Id.

       The Fourth Amendment to the United States Constitution provides that “the right

of the people to be secure in their persons, houses, papers, and effects, against

                                             6
unreasonable searches and seizures, shall not be violated. . . .” In general, warrantless

searches are “per se unreasonable under the Fourth Amendment, subject to a few

specifically established and well-delineated exceptions.” Holder v. State, 847 N.E.2d

930, 935 (Ind. 2006). A search conducted without a warrant requires the State to prove

that an exception to the warrant requirement is “applicable at the time of the search.” Id.

       Although McIlquham maintains that the evidence should have been excluded

because neither he nor Rolland validly consented to the search of the apartment, we need

not address that contention because the police officers were entitled to enter the

apartment under the community caretaking exception to the warrant requirement.

       Indeed, McIlquham discusses the various exceptions to the warrant requirement in

light of exigent circumstances, which include emergency situations. For instance, in the

case of exigent circumstances, the evaluation focuses on the needs of law enforcement to

apprehend criminals, stop crimes in progress, render aid to victims, or seize evidence that

may be destroyed. Mincey v. Arizona, 437 U.S. 385, 394 (1978). In other words, this

exception focuses on situations that make the needs of law enforcement “‘so compelling

that the warrantless search is objectively reasonable under the Fourth Amendment.”’ Id.

(quoting McDonald v. United States, 335 U.S. 451, 456 (1948)).

       The community-caretaking function also recognizes that “police are expected not

only to enforce the criminal laws but also to aid those in distress, abate hazards, prevent

potential hazards from materializing, and perform an infinite variety of other tasks

calculated to enhance and maintain the safety of communities.” Fair v. State, 627 N.E.2d

                                             7
427, 431 (Ind. 1993). The police may discharge such a caretaking function whenever

circumstances compel it, even in the absence of specific statutes authorizing such

conduct. Id.

       That said, the State acknowledges that Indiana has specifically applied the

community caretaking exception in instances where police officers have standard criteria

for exercising the function with respect to immobilized automobiles. Id. at 432-33.

However, we note that the welfare of a child was not involved in prior cases when

construing this exception. Id.

       Some courts have applied the community caretaking exception to permit

warrantless entry into homes for limited purposes. See United States v. Rohrig, 98 F.3d

1506, 1523-24 (6th Cir. 1996) (holding that police may enter a home to abate a nuisance

when the occupants have not responded to police inquiries); United States v. Quezada,

448 F.3d 1005, 1008 (8th Cir. 2006) (holding that police may enter a home to investigate

an outside door that is open when there is no response to the officers’ inquiries); cf.

Montgomery v. State, 904 N.E.2d 374, 382 (Ind. Ct. App. 2009) (applying exigent

circumstances and caretaking rationales to justify a warrantless entry into a hotel room).

       Notwithstanding the above, we embrace the notion that there are certainly

instances that threaten the well-being of a small child that do not necessarily involve the

commission of a criminal offense. In our view, such circumstances are present here. As

discussed above, the responding police officers discovered R., a partially naked toddler,

wandering near the retention pond in the apartment complex. Tr. p. 35-36. Officer

                                             8
McFadden testified that he wanted to check the apartment where R. lived to “see

[whether the apartment was] dirty, clean, if there is any food, [or] if there is a bed for the

child to sleep in.” Id. at 79. The officers acknowledged that the “whole purpose is for

the safety of this child.” Id. In our view, there were certainly objectively reasonable

concerns about McIlquham’s right to retain custody of R. in light of the conditions and

circumstances in which she was discovered.          Moreover, not allowing the police to

conduct a community-caretaking function to operate in a case such as this one—at least

to the extent of allowing a non-violent entry into a home to conduct a cursory visual

inspection of the interior of the residence and its occupants—would result in the

unreasonableness that Fourth Amendment jurisprudence seeks to avoid. See Rohrig, 98

F.3d 1506, 1523-24 (6th Cir. 1996) (noting that one factor that weighs in favor of the

community-caretaking function is that insistence on the police officers’ obtaining a

warrant would, in some circumstances, be tantamount to an unreasonable permission of

harm). Put another way, the officers’ inability to arrest McIlquham, or requiring a

warrant or a search of the apartment under the circumstances, would have required the

police officers to either abandon their responsibilities to protect R. or placing R. in the

custody of CPS without additional inquiry or investigation. See Ind. Code § 31-34-2-3(a)

(providing for placing a child in need of services into immediate custody when arrest of a

‘perpetrator’ is not possible or will not alleviate the child’s condition). In short, the

adoption of a limited community-caretaking authority for police officers to enter a



                                              9
residence under such circumstances does not offend Fourth Amendment concerns.

Rohrig, 98 F.2d at 1523-24.

       Finally, we note that while McIlquham asserts in his appellate brief that the police

officers’ actions violated the provisions of Article 1, Section 11 of the Indiana

Constitution, he did not present that argument at trial. Thus, the issue is waived. See,

e.g., Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000) (observing that grounds for

objection must be specific and any grounds not raised in the trial court are not available

on appeal). Moreover, a “generic challenge” to a search or seizure is insufficient to

present a claim under the Indiana Constitution. See Dye v. State, 717 N.E.2d 5, 24 (Ind.

1999) (holding that a defendant cannot invoke the provisions of the Indiana Constitution

against a search or seizure without a separate and independent analysis of the claim).

       Waiver notwithstanding, even if McIlquham had properly challenged the propriety

of the search under Article 1, Section, 11, his argument would fail. As this Court noted

in Montgomery v. State:

       Although we give a liberal construction to Article I, section 11 to favor
       protection of individuals from unreasonable intrusions on privacy, “Indiana
       citizens have been concerned not only with personal privacy but also with
       safety, security, and protection from crime.” State v. Gerschofer, 763
       N.E.2d 960, 965 (Ind. 2002). It is because of concerns among citizens
       about safety, security, and protection that some intrusions upon privacy are
       tolerated, so long as they are reasonably aimed toward those concerns.
       Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). Police officers have a
       caretaking as well as an investigatory function. See Wilson v. State, 247
       Ind. 454, 458, 217 N.E.2d 147, 150 (1966) (observing that any police
       officer who sees or is informed of such [an emergency] has not only the
       right, but the duty, to make an instant and prompt investigation).


                                            10
904 N.E.2d at 382.

       As our Supreme Court observed in Litchfield v. State, police intrusion is lawful

under Article I, Section 11 of the Indiana Constitution, provided that it remains

reasonable in view of (1) the degree of concern or suspicion that a violation of the law

has occurred; (2) the degree to which the intrusion imposed on the citizen’s ordinary

activities; and (3) the extent of law enforcement needs. 824 N.E.2d 356, 359 (Ind. 2005).

       In this case, the extent of concern over R.’s well-being was significant in light of

the circumstances where the police officers found her. Tr. p. 35-37. The degree of

intrusion into McIlquham’s ordinary activities was negligible, in that he appeared to have

been outside only to locate R. McIlquham intended to return to his home, and there is no

showing that a cursory visual inspection of the premises would have interfered with

McIlquham’s ordinary activities. Id. at 35-37. Finally, as discussed above, the extent of

law enforcement needs to ensure the well-being of small children without unnecessarily

separating them from their parents through automatic placement with CPS weighs in

favor of permitting the officers’ cursory entry into the residence like what occurred here.

In short, the police officers’ performance of a limited community-caretaking inspection

of the apartment does not establish that they acted unreasonably under Article I, Section

11 of the Indiana Constitution. Id. Thus, for all of these reasons, McIlquham’s claims

fail, and we conclude that the trial court properly admitted the items into evidence that

the police officers seized from the apartment.



                                            11
                              II. Sufficiency of the Evidence

        McIlquham also argues that the evidence was insufficient to support his conviction

for possession of paraphernalia. Specifically, McIlquham argues that the State only

proved that McIlquham possessed the scale and failed to establish that he intended to use

it to “test the strength, effectiveness, or purity of a controlled substance.” Appellant’s Br.

p. 7.

        When reviewing sufficiency of evidence claims, we will not reweigh the evidence

or re-evaluate the credibility of witnesses. Kiplinger v. State, 922 N.E.2d 1261, 1266

(Ind. 2010). We will defer to the fact-finder’s exclusive province to weigh conflicting

evidence. Delarosa v. State, 938 N.E.2d 690, 697 (Ind. 2010). We will only overturn a

verdict if it finds that, after considering the evidence and inferences that support the

conviction and resolving all discrepancies and conflicts in favor of the verdict, a rational

person could not have found the defendant guilty. Williams v. State, 873 N.E.2d 144,

147 (Ind. Ct. App. 2007).

        To convict McIlquham of possession of paraphernalia, the State was required to

prove that he knowingly possessed the scale and that he intended to use the device to test

the “strength, effectiveness or purity of . . . marijuana.” Ind. Code § 35-48-4-8.3(a)(2).

Moreover, a “controlled substance” includes marijuana. Ind. Code § 35-48-1-9; I.C. §

35-48-2-4(d)(22).



                                             12
       In this case, during a post-arrest interview, McIlquham admitted that he used the

scales to measure the weight of the marijuana that he purchased to ensure that it was the

quantity for which he had bargained. Tr. p. 113. McIlquham erroneously asserts that

“[u]sing a scale to simply learn the weight of the marijuana is not proscribed” by the

paraphernalia statute. Appellant’s Br. p. 19. However, as noted above, the relevant

statute embraces any device that is used to test the strength, effectiveness, or purity of a

controlled substance without limitation. I.C. § 35-48-4-8.3(a)(2). Although a scale

cannot perform a chemical analysis of a sample or measure the sample’s ability to

provide a particular ‘dose’ of the drug with the desired effectiveness, the definition of

paraphernalia is not limited to devices that can perform such complex, specific functions.

Id. Rather, the statute proscribes the possession of devices with the intent to measure any

aspect of the strength, effectiveness or purity of any controlled substance. Id.

       Indeed, we are aware that absent McIlquham’s explicit confession that he used the

scales for weighing the marijuana or without the circumstantial evidence of drug

packaging, handling, or weighing or portioning, the State’s case for possession of

paraphernalia may likely have failed. See Harrison v. State, 469 N.E.2d 22, 24 (Ind. Ct.

App. 1984) (holding that a conviction for possessing paraphernalia is unsound absent

specific evidence showing that a device was intended to be used for a proscribed

purpose).

       In this case, however, the evidence shows that the factfinder could reasonably

conclude that McIlquham possessed the scales with the intent of testing the strength,

                                             13
effectiveness, or purity of marijuana. As a result, we affirm McIlquham’s conviction for

possession of paraphernalia.

      The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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