MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                            Aug 25 2020, 8:55 am
regarded as precedent or cited before any                                            CLERK
court except for the purpose of establishing                                     Indiana Supreme Court
                                                                                    Court of Appeals
the defense of res judicata, collateral                                               and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer Hinkebein Culotta                               Curtis T. Hill, Jr.
New Albany, Indiana                                      Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Saylor,                                          August 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-759
        v.                                               Appeal from the Washington
                                                         Superior Court
State of Indiana,                                        The Honorable Frank Newkirk, Jr.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         88D01-1708-F2-567



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020                Page 1 of 14
                                              Case Summary
[1]   Kenneth Saylor brings this interlocutory appeal from the denial of his motion to

      suppress evidence. We affirm.


                                                     Issues
[2]   Saylor raises two issues on appeal, which we restate as follows:


              I.       Whether the trial court properly denied Saylor’s motion to
                       suppress evidence.


              II.      Whether the trial court erred in finding that contraband
                       was found in plain view during the protective sweep.


                                                      Facts
[3]   On August 24, 2017, law enforcement officers from various agencies were

      briefed before serving a Harrison County “high risk” felony arrest warrant upon

      Saylor at his residence in Washington County. 1 Tr. Vol. II p. 8. Saylor faced a

      charge of dealing in methamphetamine and was suspected of manufacturing

      methamphetamine in the residence.


[4]   At least one vehicle was parked outside Saylor’s residence when the officers

      arrived. Trooper Kevin Bowling of the Indiana State Police knocked on

      Saylor’s door. From outside the house, assisting officers saw Saylor walk



      1
       Among the law enforcement officers involved in serving the arrest warrant were “Sheriff Roger Newlon,
      Pekin Town Marshall Jeff Thomas, Trooper Kevin Bowling, Trooper Jonathan Haugh, Trooper
      Dustan Rubenacker and Deputy Alan Taylor of Washington County Sheriff Department.” Saylor’s App.
      Vol. II p. 10.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020               Page 2 of 14
      toward the front of the residence and heard Saylor shout that he was coming to

      the door. Saylor answered the door, exited the residence, and was arrested.

      Trooper Bowling escorted Saylor to the front lawn of the home.


[5]   Troopers Brett Walters and Dustan Rubenacker then entered the house and

      conducted a protective sweep of “the first room[ ] on [the] right hand side

      where Saylor kept . . . snakes” and “the main living room” and found no other

      persons in Saylor’s residence. Id. at 9. During the protective sweep of the two

      rooms, Trooper Walters saw, in plain view: (1) two digital scales in the main

      living room; and (2) a glass smoking pipe with burnt residue on a shelf in the

      “snake room.” After the protective sweep, the officers allowed Saylor back into

      the house. Saylor asked to retrieve a pair of shoes before he was transported to

      jail. Trooper Walters asked Saylor if anything in the residence posed a threat to

      the law enforcement officers. Saylor responded that he only had smoking pipes

      and digital scales in the house. Trooper Walters asked Saylor for the location of

      the items, and Saylor replied that the smoking pipes were in a container under

      the shelf that held Saylor’s snakes and the digital scales were in a room located

      off the kitchen. Trooper Walters asked if Saylor would consent to a search of

      the residence; Saylor refused.


[6]   That same day, Detective Mike Bennett of the Indiana State Police applied for a

      search warrant and, in support, filed an affidavit that provided in part:


              Officer Brett Walters . . . conducted a protective sweep of [ ]
              Saylor’s residence incident to arrest. During said protective
              sweep, Officer Walters observed in plain view a glass pipe with

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 3 of 14
              burnt residue located in the first room on the right after entering
              said residence. This room contained [ ] Saylor’s collection of
              snakes. Officer Walters also observed in plain view two (2) sets
              of black digital scales in the main living room.


      Saylor’s App. Vol. II p. 110. The trial court issued the search warrant, and the

      ensuing search of Saylor’s residence yielded: (1) nearly 2.8 ounces of crystal

      methamphetamine; (2) two glass pipes; and (3) two digital scales.


[7]   On August 25, 2017, Trooper Walters filed an “Affidavit for Probable Cause for

      Warrantless Arrest” that provided in part:


              Trooper Rubenacker and I entered the residence to clear it for
              officer safety. Once the residence was clear, we brought [Saylor]
              back in the residence. I informed [Saylor] of the warrant and
              asked him if there was anything in the house that could hurt any
              of the officers. I had information that [Saylor] might have been
              cooking methamphetamine somewhere in the residence. [Saylor]
              told me the only thing in his house where [sic] some glass
              smoking pipes and scales. I asked him where they were and he
              told me the pipes where [sic] in a gray container in his snake
              room, the scales were in another room by the kitchen. I asked
              [Saylor] if he would give us written consent to search the
              residence he told me “No”. I informed him that I would be
              petitioning the court for a search warrant for his residence.


      Exhibits Vol. III p. 4.


[8]   On August 30, 2017, the State charged Saylor with dealing in

      methamphetamine, a Level 2 felony; possession with intent to deliver, a Level 3

      felony; maintaining a common nuisance, a Level 6 felony; and possession of

      paraphernalia, a Class C misdemeanor. Saylor filed a motion to suppress

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 4 of 14
      evidence on September 9, 2019, wherein he argued that: after Saylor was

      arrested, “a police officer, without lawful authority and/or Mr. Saylor’s

      consent, entered Mr. Saylor’s residence in order to search his residence”; and

      “[f]ollowing the unlawful entrance and search of Mr. Saylor’s residence, Det.

      Mike Bennett then sought a search warrant for Mr. Saylor’s residence.”

      Saylor’s App. Vol. II p. 62. Saylor argued further:


              [5]a) At the time the police officers entered Mr. Saylor’s home,
              the police officer did not have a Search Warrant nor justification
              for a warrantless entry and, thus, violated the Fourth
              Amendment to the United States Constitution.


              b) The police officers failed to advise Mr. Saylor, who was in
              custody, of his right to consult with counsel, before searching and
              thus violated his Article 1, Section 11 right to be free from
              unreasonable searches and Section 13 right to counsel. [ ].


              c) Mr. Saylor did not consent to [the] search and thus, the
              resulting search violated the Fourth Amendment of the United
              States Constitution and the Indiana Constitution.


      Id. at 62-63.


[9]   On November 21, 2019, the trial court conducted a hearing on Saylor’s motion

      to suppress evidence. On direct examination, Trooper Walters testified that: (1)

      “[he] believe[d] there w[ere] two vehicles” parked outside Saylor’s house when

      the officers arrived to serve the arrest warrant, tr. vol. II p. 8; (2) during the

      protective sweep, he observed a glass smoking pipe and two digital scales in

      plain view, id. at 9, 10; and (3) “[a p]rotective sweep is just looking in open

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 5 of 14
       areas that somebody can hide. It’s not opening up small little cupboards that

       people could not relatively fit in. It’s just making sure that there’s nobody there

       and if there is, pull them out and just identify them[,]” id. at 8, 9. Under cross-

       examination, defense counsel introduced Trooper Walter’s probable cause

       affidavit into evidence, and the trial court admitted it into the suppression

       hearing record. Trooper Walters admitted that, in his probable cause affidavit,

       he did not state that he observed contraband in plain view during the sweep. 2


[10]   The trial court denied Saylor’s motion to suppress on January 30, 2020. The

       trial court’s order provided in part:


               12. At the Suppression Hearing, Trooper Walters testified that he
               executed a “protective sweep” of Mr. Saylor’s house and that “on
               any arrest warrant that we do we always do a protective sweep.
               No matter how small or how big the warrant is.” His affidavit
               explained what a protective sweep is: “Trooper Rubenacker and I
               entered the residence to clear it for officer safety.” He indicated
               the sweep was also an effort to identify everybody in the
               residence for protection. He testified to these specific or
               articulable facts concerning danger to officers in this case:


                        a. Defendant was wanted for a felony crime;




       2
         Trooper Walters’ probable cause affidavit provides that, after the protective sweep was completed: (1)
       Trooper Walters asked Saylor whether any items in the residence posed a threat to the officers; (2) Saylor
       replied he only had smoking pipes and digital scales in the residence; and (3) Trooper Walters asked Saylor
       the location of the contraband, which Saylor disclosed. In Saylor’s motion to suppress, Saylor alleged that
       Trooper Walters actually learned the location of the contraband from Saylor after the protective sweep was
       complete. Saylor maintains that the probable cause affidavit, thus, contradicts Trooper Walters’ suppression
       hearing testimony that the pipes and digital scales were found in plain view.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020                  Page 6 of 14
                 b. They had information that meth[amphetamine] might
                 be cooking in the residence;


                 c. There were multiple vehicles outside the residence.


                 d. Officers were provided information that it was a high
                 risk warrant and that methamphetamine dealing was
                 occurring at the residence.


                 e. His clandestine lab certification was the reason he was
                 attached to the team executing the arrest warrant.


        13. Trooper Walters testified that a protective sweep of the
        residence was performed and that in plain sight a glass smoking
        pipe with residue was observed and in a separate room two
        digital scales were in plain view.


        14. Trooper Walters therefore articulated facts, which taken with
        the reasonable inferences from those facts would warrant an
        officer to believe a protective sweep was necessary and
        reasonable for officer safety.


        15. For all of these reasons, drug paraphernalia and evidence
        associated with the dealing of controlled substances which were
        seen in plain view and in multiple locations helped establish
        probable cause for the search warrant and items and evidence
        which was seized will not be suppressed.


Saylor’s App. Vol. II pp. 118-19. On February 27, 2020, Saylor filed a motion

to certify the order for interlocutory appeal, which the trial court granted. This

Court accepted jurisdiction over Saylor’s interlocutory appeal on April 22, 2020

pursuant to Indiana Appellate Rule 14(B).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 7 of 14
                                                      Analysis
[11]   Saylor argues that the trial court erred in denying his motion to suppress

       evidence. Specifically, Saylor argues that “[t]he evidence seized . . . was

       obtained . . . as a result of a warrantless illegal protective sweep and the seized

       evidence was not found in plain view”; and that the search warrant, “based on

       the allegation that items were found in plain view, was obtained in violation of

       the Fourth Amendment to the United States Constitution.”3 Saylor’s Br. p. 12.


[12]   Our standard of review for the denial of a motion to suppress evidence is similar

       to that of other sufficiency issues. Wilson v. State, 96 N.E.3d 655, 658 (Ind. Ct.

       App. 2018), trans. denied. We determine whether there is substantial evidence of

       probative value to support the denial of the motion. Id. We do not reweigh the

       evidence, and we consider conflicting evidence in a light most favorable to the

       trial court’s ruling. Id. However, the review of a denial of a motion to suppress

       is different from other sufficiency matters in that we must also consider

       uncontested evidence that is favorable to the defendant. Id. We review de novo

       a ruling on the constitutionality of a search or seizure. Id.




       3
         Although Saylor asserts a claim under Article 1, Section 11 of the Indiana Constitution, he fails to present
       argument thereon in his brief; thus, this claim is waived. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind.
       2002) (“Because Abel presents no authority or independent analysis supporting a separate standard under the
       state constitution, any state constitutional claim is waived.”); see Ind. Appellate Rule 46(A).




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020                    Page 8 of 14
[13]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. Const. amend. IV. “The

       fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Durstock v. State,

       113 N.E.3d 1272, 1277 (Ind. Ct. App. 2018). This protection has been

       “extended to the states through the Fourteenth Amendment.” Bradley v. State,

       54 N.E.3d 996, 999 (Ind. 2016). “As a deterrent mechanism, evidence obtained

       in violation of this rule is generally not admissible in a prosecution against the

       victim of the unlawful search or seizure absent evidence of a recognized

       exception.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013).


                                             I.       Protective Sweep

[14]   We first address Saylor’s contention that the trial court erred in finding that the

       protective sweep of Saylor’s residence was justified. Regarding protective

       sweeps, this Court has held:


               [a] warrantless search is proper when (1) it is conducted in rooms
               immediately adjoining the area of the arrest, regardless of
               reasonable suspicion, or (2) when the police have reasonable
               suspicion that rooms not immediately adjacent to the area of the
               arrest contain a hidden person who might jeopardize officer
               safety. State v. Estep, 753 N.E.2d 22, 26 (Ind. [Ct.] App. 2001).
               Reasonable suspicion is satisfied if the known facts are such that
               a person of reasonable caution would believe the action taken
               was appropriate and is judged on a case-by-case basis against an
               objective standard.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 9 of 14
       Hannibal v. State, 804 N.E.2d 206, 209 (Ind. Ct. App. 2004); see Maryland v. Buie,

       494 U.S. 325, 334-35, 110 S. Ct. 1093 (1990) (citation omitted).


[15]   An officer’s given reasons to justify a protective sweep may not be “mere

       inchoate and unparticularized suspicion[s] or hunch[es],” but should constitute

       “specific and articulable facts.” Estep, 753 N.E.2d at 27.


               [S]uch a protective sweep, aimed at protecting the arresting
               officers, if justified by the circumstances, is nevertheless not a full
               search of the premises, but may extend only to a cursory
               inspection of those spaces where a person may be found. The
               sweep lasts no longer than is necessary to dispel the reasonable
               suspicion of danger and in any event no longer than it takes to
               complete the arrest and depart the premises.


       Id. at 26 (quoting Buie, 494 U.S. at 334-35).


[16]   In Weddle v. State, 989 N.E.2d 371 (Ind. Ct. App. 2013), the police went to

       Weddle’s home to serve an arrest warrant. Weddle and Hall were suspected of

       manufacturing and dealing methamphetamine. Two cars were parked outside

       the home. When the officers knocked, they saw the blinds move and heard

       movement in the home. The officers entered the home and arrested Weddle in

       a front room; however, they heard movement at the back of the home and

       suspected another person was present. Weddle, however, was evasive when

       asked if anyone else was in the home. The officers conducted a protective

       sweep, smelled an odor associated with the manufacture of methamphetamine,

       and saw a marijuana plant in plain view. The officers also found a woman,

       who was wanted on an arrest warrant, hiding in the back room. The officers

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 10 of 14
       then ended the protective sweep. After Weddle refused to consent to search of

       the home, the officers obtained a search warrant. The ensuing search revealed a

       methamphetamine laboratory and contraband. Weddle was charged with

       related offenses and moved unsuccessfully to suppress the seized evidence.


[17]   On appeal, this Court affirmed the denial of the motion to suppress and found:

       (1) “the protective sweep [ ] was justified because the police officers searched

       only adjoining rooms from which an attack could immediately occur”; and (2)

       “the officers had specific articulable facts that an individual, who could

       jeopardize their safety, was hiding in the [ ] house.” Weddle, 989 N.E.2d at 377.


[18]   The record here reveals that this matter arose from the service of a high-risk

       felony warrant on Saylor, whom the officers believed was dealing and

       manufacturing methamphetamine. Trooper Bowling recalled that two vehicles

       were parked outside Saylor’s residence. After the officers arrested Saylor

       outside the house, the officers entered the residence to conduct a protective

       sweep. Under the circumstances, the officers were authorized to conduct a

       limited protective sweep of areas immediately adjoining the front of the house.


[19]   Inasmuch as Saylor challenges the protective sweep of his residence because he

       was arrested outside, we are not persuaded. As this Court opined in Hannibal:


               [t]he fact the officers were outside of the apartment did not
               negate the need for a protective sweep . . . . Officers may be at as
               much risk while in the area immediately outside an arrestee’s
               dwelling [as] they are within it. A bullet fired at an arresting
               officer standing outside a window is as deadly as one that is
               projected from one room to another.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 11 of 14
       Hannibal, 803 N.E.2d at 209 (citations omitted). Moreover, we find that the

       officers’ protective sweep was justified because the presence of another vehicle

       outside gave the troopers reason to suspect that another person was in the

       residence. The protective sweep was both brief and limited in its scope.

       Trooper Walters testified that the protective sweep took mere “moments,” and

       it appears that the officers only swept rooms immediately adjoining 4 the front of

       the house from which an attack could immediately occur. See Tr. Vol. II pp. 9,

       17 (Trooper Walters’ testimony specified that the officers swept “the first room[

       ] on [the] right hand side where Saylor kept . . . snakes” and “the main living

       room”).


[20]   Based on the foregoing, there is substantial evidence of probative value to

       support the denial of the motion to suppress regarding the officers’ entry to

       conduct the protective sweep. See Weddle, 989 N.E.2d at 377 (finding “the

       protective sweep [ ] was justified because the police officers searched only

       adjoining rooms from which an attack could immediately occur”; and “the

       officers had specific articulable facts that an individual, who could jeopardize

       their safety, was hiding in the back of the house”).




       4
        We do not have a floor plan for Saylor’s home in the record; however, we assume that the “snake room”
       and the main living room were immediately adjoining the front of the house where Saylor was arrested
       because Saylor does not assert otherwise.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020              Page 12 of 14
                                                 II.      Plain View

[21]   Saylor also argues that “[u]ncontested evidence . . . established . . . that the

       pipes and scales were not in plain view during the protective sweep.” Saylor’s

       Br. p. 25. A well-recognized exception to the Fourth Amendment’s warrant

       requirement is the exception for evidence found in plain view. McAnalley v.

       State, 134 N.E.3d 488, 500-01 (Ind. Ct. App. 2019), trans. denied, 141 N.E.3d 33

       (Ind. 2020) (“The plain view doctrine is recognized as an exception to the

       search warrant requirement.”); see 16 WILLIAM ANDREW KERR, INDIANA

       PRACTICE § 2.2(f)(3) at 177 (1991). “To justify a warrantless seizure under the

       plain view doctrine, a law enforcement officer (1) must not have violated the

       Fourth Amendment in arriving at the place where the items are in plain view,

       (2) the incriminating nature of the objects in plain view must be immediately

       apparent, and (3) the officer must have a lawful right to access the items in plain

       view.” Hannibal, 804 N.E.2d at 210.


[22]   The record reveals that, at the suppression hearing, Trooper Walters testified he

       observed a glass smoking pipe and two digital scales in plain view during the

       protective sweep of Saylor’s residence. We have found supra that the officers

       were authorized to enter Saylor’s residence and did not violate the Fourth

       Amendment when they conducted the protective sweep. Saylor does not




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020   Page 13 of 14
       dispute the immediately apparent incriminating 5 nature of the glass pipe and

       digital scales that Trooper Walters observed during the protective sweep. Nor

       is there any dispute regarding whether the troopers had a lawful right to access

       the items observed in plain view. 6


[23]   Saylor alleges that Trooper Walters’ suppression hearing testimony and his

       “Affidavit for Probable Cause for Warrantless Arrest” conflict. Our standard of

       review requires that we consider conflicting evidence in the light most favorable

       to the trial court’s ruling. See Wilson, 96 N.E.3d at 658. Accordingly, this claim

       is unavailing. Saylor’s argument is an invitation to reweigh the evidence, which

       we cannot do.


                                                    Conclusion
[24]   Substantial evidence supports the denial of Saylor’s motion to suppress. We

       affirm.


[25]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       5
        See Granger v. State, 946 N.E.2d 1209, 1214 (Ind. Ct. App. 2011) (“The ‘immediately apparent’ prong of the
       plain view doctrine requires that law enforcement officials have probable cause to believe the evidence will
       prove useful in solving a crime.”)
       6
        See Middleton v. State, 714 N.E.2d 1099, 1101 (Ind. 1999) (quoting Texas v. Brown, 460 U.S. 730, 103 S. Ct.
       1535 (1983) (“if, while lawfully engaged in an activity in a particular place, police officers perceive a
       suspicious object, they may seize it immediately”)).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-759 | August 25, 2020                   Page 14 of 14
