MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                             May 14 2018, 11:20 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jacob White,                                            May 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1711-CR-2553
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1611-CM-1163



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018              Page 1 of 7
                                          Statement of the Case
[1]   Jacob White (“White”) appeals his conviction for Class B misdemeanor

      possession of marijuana.1 On appeal, he argues that the trial court abused its

      discretion when it admitted the marijuana he possessed into evidence because

      that marijuana had been seized pursuant to an illegal search. Because we find

      that the search was not illegal, we conclude that the trial court did not abuse its

      discretion, and we affirm White’s conviction.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion when it admitted
                 marijuana into evidence.

                                                     Facts
[3]   On November 4, 2016, Howard County probation officer Keri Barnes

      (“Probation Officer Barnes”) attempted to conduct a compliance check on her

      probationer, Christopher Mosier (“Mosier”). She and other probation officers

      and state troopers went to the address where Mosier had told her he lived. The

      owner of the home, Mosier’s brother, Craig Mosier (“Craig”), answered the

      door and let them in the house. As soon as Probation Officer Barnes walked

      into the home, she smelled the odor of marijuana.




      1
          IND. CODE § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018   Page 2 of 7
[4]   Probation Officer Barnes asked Craig who was “in the home,” and he

      responded that White, his nephew, was there, but Mosier was not. (Tr. Vol. 2

      at 5). Probation Officer Barnes asked for permission to search the home, and

      Craig gave his permission. Probation Officer Barnes opened a door to her left

      and saw White coming out of a bathroom. The bathroom was connected to

      two bedrooms, including a bedroom where White had spent the night. When

      Probation Officer Barnes searched that bathroom, she again smelled marijuana

      and found a bag of marijuana “under the sink.” (Tr. Vol. 2 at 6).


[5]   Subsequently, the State charged White with Class B misdemeanor possession of

      marijuana. At the bench trial, the State introduced into evidence the marijuana

      Probation Officer Barnes had found in the bathroom. White objected to the

      admission of the marijuana, arguing that it was the fruit of a warrantless, illegal

      search. The trial court admitted the marijuana over White’s objection.


[6]   At the conclusion of the trial, the trial court found White guilty as charged and

      sentenced him to one hundred eighty (180) days executed in the Howard

      County Jail. White now appeals.


                                                  Decision
[7]   On appeal, White argues that the trial court abused its discretion when it

      admitted the marijuana Probation Officer Barnes had found into evidence.

      Specifically, he argues that the search that produced the marijuana was illegal

      because it violated his Fourth Amendment right to privacy and, thus, the

      marijuana seized pursuant to the search was inadmissible.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018   Page 3 of 7
[8]   The admission of evidence is generally left to the discretion of the trial court.

      Hammond v. State, 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review

      admissibility challenges for an abuse of that discretion and will reverse only

      when admission is clearly against the logic and effect of the facts and

      circumstances before the court and the error affects the party’s substantial

      rights. Id. “‘[W]hen an appellant’s challenge to such a ruling is predicated on

      an argument that impugns the constitutionality of the search or seizure of the

      evidence, it raises a question of law, and we consider that question de novo.’”

      Id. (quoting Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)). Generally

      speaking, evidence obtained pursuant to an unlawful search must be excluded

      at trial. Id.


[9]   The Fourth Amendment to the United States Constitution protects both privacy

      and possessory interests by prohibiting unreasonable searches and seizures.

      D.Y. v. State, 28 N.E.3d 249, 254 (Ind. Ct. App. 2015). The Fourth

      Amendment’s warrant requirement is a principal protection against

      unnecessary intrusions into private dwellings. State v. Straub, 749 N.E.2d 593,

      597 (Ind. Ct. App. 2001). 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, 938 (2006). One such

      exception is when the government obtains a valid consent to search. Browder v.

      State, 77 N.E.3d 1209, 1217 (Ind. Ct. App. 2017), trans. denied. The theory

      underlying the consent exception is that, when an individual gives the State

      permission to search either his person or property, the governmental intrusion is

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018   Page 4 of 7
       presumably reasonable. Primus v. State, 813 N.E.2d 370, 374 (Ind. Ct. App.

       2004).


[10]   Here, White argues that the search that produced the marijuana was illegal

       because it was warrantless and the consent exception to the warrant

       requirement did not apply. Specifically, he asserts that, even though Craig

       consented to the search, he did not give “expanded consent to search for

       marijuana.” (White’s Br. 11). In other words, White essentially argues that

       Craig limited the scope of his consent to allow a search for Mosier but not a

       search for marijuana.


[11]   It is true that a consensual search allows a person to limit the search as he

       chooses. Kubsch v. State, 784 N.E.2d 905, 918 (Ind. 2003). The scope of the

       authority to search is strictly limited to the consent given, and a consensual

       search is reasonable only if it is kept within the bounds of that consent. Chiszar

       v. State, 936 N.E.2d 816, 826 (Ind. Ct. App. 2010), reh’g denied, trans. denied.

       The standard for measuring the scope of a suspect’s consent under the Fourth

       Amendment is that of objective reasonableness. Id. In other words, “‘what

       would the typical reasonable person have understood by the exchange between

       the officer and the suspect?’” Id. (quoting Pinkney v. State, 742 N.E.2d 956, 960

       (Ind. Ct. App. 2001), trans. denied). Notably, these principles limit “‘where

       police may look, not what they actually find.’” State v. Cunningham, 26 N.E.3d

       21, 28 (Ind. 2015) (quoting Mcllquham v. State, 10 N.E.3d 506, 513 (Ind. 2014)).




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018   Page 5 of 7
[12]   We are not persuaded by White’s argument, because there is no evidence in the

       record that Craig limited his consent to search his house. Probation Officer

       Barnes testified that she asked for consent to search the house, and Craig gave

       permission. A reasonable person could have understood the search of the

       bathroom to be within the scope of that unqualified consent. Moreover,

       Probation Officer Barnes did not need “expanded consent” merely because she

       found marijuana while looking for Mosier. (White’s Br. 11). As stated above,

       the scope of consent may limit “‘where police may look, not what they actually

       find.’” Cunningham, 26 N.E.3d at 28 (quoting Mcllquham, 10 N.E.3d at 513).

       Because a reasonable person could have understood the search of the bathroom

       to be within the scope of Craig’s consent to search the house, it is not

       determinative that Probation Officer Barnes found marijuana there rather than

       Mosier.


[13]   As Craig validly consented to the warrantless search, we conclude that it was

       legal under the Fourth Amendment.2 See Browder, 77 N.E.3d at 217 (holding

       that consent is an exception to the Fourth Amendment’s warrant requirement).

       Notably, White has not provided an independent analysis of the legality of the

       search under the Indiana Constitution, so we need not address that issue on




       2
         White asks several rhetorical questions in his brief under the guise of raising those issues as arguments.
       Because he has not supported those rhetorical questions with citations to legal authority, we consider those
       issues waived for failure to present a cogent argument. Ind. Appellate Rule 46(A)(8)(a) (requiring that an
       appellant’s argument be supported by cogent argument and citations to relevant authority). He also
       challenges the trial court’s conclusion that no one was allowed to object to the search of the house because it
       was a probation search, but he has not clarified the relevance of this argument or cited to any legal authority
       to support his objection. Accordingly, we find it also waived for failure to present a cogent argument. See id.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018                 Page 6 of 7
       appeal. Decker v. State, 19 N.E.3d 368 n.3 (Ind. Ct. App. 2014) (providing that

       failure to present a cogent argument under the Indiana Constitution results in

       waiver of the issue on appeal), trans. denied. Accordingly, we conclude that the

       trial court did not abuse its discretion when it admitted the marijuana into

       evidence.


[14]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2553 | May 14, 2018   Page 7 of 7
