                                                                                       FILED
                                                                                   Dec 20 2017, 9:27 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                          Curtis T. Hill, Jr.
      Hoosier Appeals                                           Attorney General of Indiana
      Lawrenceburg, Indiana                                     Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Frederico A. Conn,                                        December 20, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                24A01-1703-CR-574
              v.                                                Appeal from the Franklin Circuit
                                                                Court
      State of Indiana,                                         The Honorable Clay M.
      Appellee-Plaintiff.                                       Kellerman, Judge
                                                                Trial Court Cause No.
                                                                24C02-1504-F6-297



      Mathias, Judge.

[1]   For purposes of privacy interests protected by Article 1, Section 11 of the

      Indiana Constitution, closed doors matter; high fences matter; roped-off drives

      matter; closed drapes matter; and in this case, a closed and locked gate matters.




      Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                           Page 1 of 18
[2]   Here, Conn appeals the trial court’s decision to admit evidence obtained during

      a search at a private conservation club, arguing that the warrantless entry and

      search of the club violated his rights under the Fourth Amendment to the

      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution.1


[3]   Because we conclude that the officers’ actions in this case were unreasonable

      under the circumstances, and therefore impermissible under Article 1, Section

      11, we reverse and remand.2


                                     Facts and Procedural History
[4]   Late in the evening on April 1, 2015, Frederico Conn attended a party with

      friends at the Laurel Conservation Club (“the Club”) during which Conn and

      other attendees shot firearms at a pizza box that had been converted into a

      target. Around midnight, Cheryl Benevengo (“Benevengo”), who lives next to

      the Club, heard gunshots as she drove by on her way home from work. She also

      noticed people outside the Club having a party. The Club has an active



      1
       We held oral argument in this case at Hamilton Southeastern High School in Fishers, Indiana on
      November 13, 2017. We thank the faculty, staff, and students for their gracious hospitality. We also thank
      counsel for their excellent written and oral advocacy.
      2
        The State argues that Conn lacks standing to challenge the search under Article 1, Section 11. However, at
      trial, the State only questioned whether Conn had a reasonable expectation of privacy on Club property, see
      Tr. p. 37, which goes directly to the State’s federal constitutional claim. See Litchfield v. State, 824 N.E.2d 356,
      359 (Ind. 2005) (explaining that Indiana courts have explicitly rejected the expectation of privacy as a test of
      the reasonableness of a search or seizure under our constitution). Because the State failed to challenge Conn’s
      standing to make the Indiana constitutional claim at trial, it may not raise the issue for the first time on
      appeal, and therefore, the issue is waived. See Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct. App. 2002)
      (“Because the State failed to raise standing under the Indiana Constitution and because we cannot raise the
      issue sua sponte, we proceed to the merits of the state constitutional challenge.”).

      Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                             Page 2 of 18
      shooting range, and Benevengo often heard gunfire coming from that direction.

      However, she had never before heard gunfire so late on a weeknight. After an

      hour of continued noise and activity coming from the Club, Benevengo called

      the police. She told the dispatch officer that firearms were being shot, and that it

      was possible animals were being killed illegally.3


[5]   Roughly forty-five minutes later, three officers arrived at the Club in separate

      marked cars: Department of Natural Resources Officer Andy Hagerty (“Officer

      Hagerty”), and Franklin County Sheriff’s Department Deputies Adam Henson

      (“Deputy Henson”) and Jeffrey Staat (“Deputy Staat”). By the time the officers

      arrived, the gunfire had ceased and the activity was winding down.


[6]   A locked gate obstructed the main road from the lane leading back to the Club. 4

      As the officers pulled up, a vehicle was attempting to leave the Club property,

      but was blocked in by the gate. The driver of the vehicle, Josh Wright

      (“Wright”), told the officers that he was waiting for someone to come unlock it.

      All three officers climbed over or otherwise maneuvered around the gate.

      Deputy Staat stayed with Wright, while Officer Hagerty and Deputy Henson




      3
       Benevengo testified that she notified police that there were gunshots and “[y]elling and carrying on.” Tr. p.
      26. It was Deputy Adam Henson who testified that Benevengo told dispatch that “her dog had drug some
      animal parts over and thought maybe they were shooting some animals.” Id. at 72.
      4
        Officer Hagerty was asked if the gate was locked, and he testified, “I believe so.” Tr. p. 61. Deputy Henson
      was asked the same question and responded, “Yes.” Id. at 87. Deputy Staat, when asked if the gate was
      locked, indicated, “I ended up driving back and nobody had unlocked it. I don’t believe it was locked, but it
      was closed.” Id. at 111. Additionally, Josh Wright was waiting in his vehicle at the gate for someone to come
      unlock it. Id. at 75. Based on the testimony at trial, it is reasonable to infer that the gate was in fact locked.

      Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                           Page 3 of 18
      began walking down the Club’s lane where they saw a group of four individuals

      standing beside two vehicles next to the Club’s building.


[7]   As the officers made their way down the lane, they observed Conn veer away

      from one of the two vehicles and walk behind the Club’s building. The officers

      found this behavior suspicious and decided to investigate what Conn was

      doing. Officer Hagerty then saw Conn jogging towards him from behind the

      building, and he asked Conn what he was doing back there. Conn told the

      officers that he had been urinating. After further questioning, Conn admitted

      that he had hidden a firearm behind the building.


[8]   Conn led the officers back to where he hid the firearm under a board and some

      leaves. In addition to a .22 caliber handgun, the officers also discovered two

      change purses and a box of .22 caliber ammunition nearby. Inside the change

      purses the officers found a glass pipe, a pen modified into a straw, and baggies

      containing methamphetamine.


[9]   Conn was charged with Level 6 felony possession of methamphetamine, Class

      A misdemeanor possession of a firearm by a domestic batterer, and Class A

      misdemeanor possession of paraphernalia. A two-day jury trial commenced on

      January 18, 2017, and during trial Conn objected to the admission of the

      evidence retrieved from the Club. The trial court overruled the objection, and

      the jury found Conn guilty. On February 14, 2017, Conn was sentenced to two-

      and-one-half years to be served at the Franklin County Security Center. Conn

      now appeals.


      Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 4 of 18
                                            I. Standard of Review

[10]   When reviewing a trial court’s ruling on the admissibility of evidence resulting

       from an allegedly illegal search, we do not reweigh the evidence, and we

       consider conflicting evidence most favorable to the trial court’s ruling.

       Cartwright v. State, 26 N.E.3d 663, 667 (Ind. Ct. App. 2015), trans. denied.

       However, the constitutionality of a search or seizure is a pure question of law

       that we review de novo. Browder v. State, 77 N.E.3d 1209, 1213 (Ind. Ct. App.

       2017), trans. denied.


                      II. Article 1, Section 11 of the Indiana Constitution

[11]   Conn claims that the officers’ actions here violated his rights under both the

       Fourth Amendment to the United States Constitution and Article 1, Section 11

       of the Indiana Constitution. Because we conclude that the officers’ actions here

       were unreasonable under Article 1, Section 11, we do not address Conn’s

       claims under the Fourth Amendment.


[12]   Under Article 1, Section 11, the legality of a governmental search turns on an

       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Our supreme

       court has explained that the reasonableness of a search or seizure necessitates a

       balancing of: (1) the degree of concern, suspicion, or knowledge that a violation

       has occurred; (2) the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities; and (3) the extent of law

       enforcement needs. Id. at 361. In evaluating these factors to determine whether


       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 5 of 18
       police behavior in a given case was reasonable under Section 11, we consider

       each case on its own facts, and we construe the constitutional provision

       liberally so as to guarantee the rights of Hoosiers against unreasonable searches

       and seizures. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014). Thus, it

       is the State’s burden to prove that the police intrusion was reasonable under the

       totality of the circumstances. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013).


        A. Degree of Concern, Suspicion, or Knowledge

[13]   Here, the degree of concern, suspicion, or knowledge the officers had that a

       violation of law had occurred was negligible. The officers arrived at the Club to

       investigate “ongoing shooting” and that “maybe [those at the Club] were

       shooting some animals.” Tr. p. 72. However, once the officers arrived, the

       shooting had stopped. There was no evidence of poaching or any animals being

       killed. And Ms. Benevengo testified that it “looked like they were [] wrapping it

       up by the time [the officers] got there.” Id. at 27.


[14]   The State argues that the degree of concern was high because the officers

       received a tip that led them to believe criminal activity was occurring at the

       club. However, there is no evidence supporting this conclusion. During trial,

       each of the three officers conceded that it is not against the law to shoot a gun at

       a conservation club, and none of the officers saw any evidence of poaching.

       Further, there were no allegations of other criminal activity that Conn and

       those at the Club may have been involved in. Simply put, at the time the

       officers arrived at the Club, there was little, if any, evidence that Conn had

       violated any laws. See Trotter v. State, 933 N.E.2d 572, 580 (Ind. Ct. App. 2010)
       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 6 of 18
       (finding that the officers’ degree of concern, suspicion, or knowledge that a

       violation had occurred was “non-existent” where the officers arrived on scene

       to investigate a complaint of gunshots fired in a backyard). Under the facts and

       circumstances before us in this case, the degree of the officers’ suspicion here

       was minimal.

        B. Degree of Intrusion

[15]   The degree of intrusion is evaluated from Conn’s point of view. See Litchfield,

       824 N.E.2d at 360. This factor is the most concerning aspect about the officers’

       conduct in this appeal. When the three officers arrived at the Club property,

       they were barred from entering the Club by a locked gate. Each officer then

       either jumped over or maneuvered around the gate. Moreover, during this time,

       Wright was in his vehicle attempting to exit the Club and waiting for someone

       to come unlock the gate so he could leave. Under these circumstances, the

       officers could have either: (1) waited for the gate to be unlocked and stopped

       persons on their way out; or (2) obtained a warrant. There was no reason to

       ignore a locked gate.


[16]   The State contends that the degree of intrusion was low; however, its

       assessment fails to acknowledge that the officers encountered a locked gate. Our

       courts have consistently held that when Indiana citizens put mechanisms in

       place to keep others out, ignoring these obstructions constitutes highly intrusive

       conduct by law enforcement. See Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.

       2014) (explaining that the degree of intrusion was high where officers jumped

       over a locked gate and fence to reach an open door); Mundy, 21 N.E.3d at 119
       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 7 of 18
       (finding the degree of intrusion was high when officers took down a cable that

       was blocking a drive); Trotter, 933 N.E.2d at 581 (concluding that the degree of

       intrusion was immense where the officers entered a pole barn through an

       unlocked door); Divello v. State, 782 N.E.2d 433, 438 (Ind. Ct. App. 2003)

       (holding that walking through a privacy gate is highly intrusive because the area

       cannot be regarded as one where uninvited visitors would normally be expected

       to travel). Under the facts and circumstances before us, the degree of intrusion

       on the ordinary activities of the partygoers and Conn was substantial.

        C. The Extent of Law Enforcement Needs

[17]   Finally, we consider the extent of law enforcement needs. There was absolutely

       no evidence of emergency or outside threat to the public, and the officers had

       several other ways that they could have addressed Ms. Benevengo’s concerns.

       See Masterson v. State, 843 N.E.2d 1001, 1007 (Ind. Ct. App. 2006) (explaining

       that the third Litchfield factor “requires consideration of the nature and

       immediacy of the governmental concern.”), trans. denied. The officers could

       have asked Wright about the noise and activities at the Club when they

       encountered him at the gate. Or, the officers could have waited for someone to

       come let Wright out and then asked for permission to enter the property.


[18]   Although the officers were responding to reported gunfire late on a weeknight,

       we find it significant that the gunfire was ongoing at a Club with a shooting

       range, where gunfire is not uncommon. And Conn was firing at a pizza box

       converted into a target—this is not a situation where an individual is waving a

       gun around in public in a densely populated area. See Grayson v. State, 52
       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 8 of 18
       N.E.3d 24 (Ind. Ct. App. 2016), trans. denied. Additionally, there was no

       evidence of exigent circumstances that would have justified the officers’

       unlawful intrusion. Cf. Holder v. State, 847 N.E.2d 930, 940–41 (Ind. 2006)

       (holding that warrantless entry into a home was justified where large amounts

       of ether fumes were emanating from the home and pervading the

       neighborhood); VanWinkle v. State, 764 N.E.2d 258, 266–67 (Ind. Ct. App.

       2002) (holding that a warrantless entry into a residence was appropriate where

       officers had reasonable grounds to believe immediate aid was needed inside),

       trans. denied.


[19]   The State argues that the extent of law enforcement needs was high because of

       reports of “armed individuals shooting randomly at areas and at times not

       common for the area.” Appellee’s Br. at 23. But the shooting had stopped by

       the time all three officers arrived at the Club. And there is no evidence that any

       of the partygoers on the Club property that evening were, or had been,

       “shooting randomly.” Instead, the evidence presented at trial indicates that

       Conn and those he was with were firing at a pizza box. The officers did not

       need to jump over a locked gate in order to investigate what amounted to a

       noise complaint. See Carpenter, 18 N.E.3d at 1003 (finding that law enforcement

       needs were low where there was no evidence of anyone in danger of harm or in

       need of assistance and where the police had other means of addressing the

       situation).




       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 9 of 18
        D. Balancing the Totality of the Circumstances

[20]   Taken together, these factors lead us to conclude that the State has not met its

       burden of establishing that the officers’ actions in this case were reasonable. The

       degree of concern, suspicion, or knowledge that a criminal violation had

       occurred or was occurring was minimal. The officers’ decision to maneuver

       over or around a locked gate to access private Club property represents a

       substantial level of intrusion. And finally, the extent of law enforcement needs

       was low. Accordingly, we hold that the officers’ conduct violated Article 1,

       Section 11. Because the evidence was obtained as a result of an illegal search

       and seizure, it amounts to the fruit of the poisonous tree; and thus, the trial

       court abused its discretion when it admitted the evidence at trial. Gyamfi v. State,

       15 N.E.3d 1131, 1138 (Ind. Ct. App. 2014).


                                                 Conclusion
[21]   Under the facts and circumstances of the present case, we conclude that the

       conduct of the police officers was not reasonable. The officers’ entry onto Club

       property violated Article 1, Section 11 of the Indiana Constitution and

       therefore, the evidence obtained after the illegal search should not have been

       admitted at trial. For all of these reasons, we reverse the conviction and remand

       for proceedings consistent with this opinion.


[22]   Reversed and remanded.


       Crone, J., concurs.


       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 10 of 18
Vaidik, C.J., dissents with opinion.




Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 11 of 18
       ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       Leanna Weissmann                                          Curtis T. Hill, Jr.
       Hoosier Appeals                                           Attorney General of Indiana
       Lawrenceburg, Indiana                                     Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Frederico A. Conn,                                        December 20, 2017
       Appellant-Defendant,                                      Court of Appeals Case No.
                                                                 24A01-1703-CR-574
               v.                                                Appeal from the Franklin Circuit
                                                                 Court
       State of Indiana,                                         The Honorable Clay M.
       Appellee-Plaintiff.                                       Kellerman, Judge
                                                                 Trial Court Cause No.
                                                                 24C02-1504-F6-297



       Vaidik, Chief Judge, dissenting.

[23]   I respectfully dissent. Conn did not have standing to challenge the evidence

       under Article 1, Section 11 of the Indiana Constitution, and I disagree with the

       majority’s conclusion that the State failed to raise this issue in the trial court.




       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017            Page 12 of 18
[24]   The test for standing under Article 1, Section 11 was established by the Indiana

       Supreme Court in Peterson v. State, 674 N.E.2d 528 (Ind. 1996). In that case, a

       defendant charged with two murders challenged the search of his mother’s

       apartment. The defendant had previously stayed in a bedroom in the apartment

       (his mother kicked him out the day before the search), and in the closet of that

       bedroom officers found a sawed-off shotgun. The shotgun was later found to

       have fired a spent casing recovered at the murder scene. The defendant argued

       that the admission of the gun into evidence violated the Fourth Amendment

       and Article 1, Section 11.


[25]   Regarding the Fourth Amendment, the Court explained that a defendant

       challenging a search has the burden to demonstrate that he had a legitimate

       expectation of privacy “in the premises searched.” Id. at 532. The defendant

       noted that “he had been living in and had property in the searched room,” but

       the Court concluded, “While the defendant had previously lived in the room

       which was searched, at the time of the search, the defendant had no control or

       ownership in the premises searched.” Id. at 533. As such, the defendant had

       “no reasonable expectation of privacy” and therefore lacked standing under the

       Fourth Amendment. Id. at 534.5




       5
        I acknowledge that the U.S. Supreme Court has gone away from the concept of “standing” in the Fourth
       Amendment context. See Allen v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008) (discussing U.S.
       Supreme Court’s conclusion that analysis of defendant’s alleged privacy interest is better framed as issue of
       substantive Fourth Amendment law than issue of “standing”), reh’g denied, trans. denied. However, the
       Indiana Supreme Court has continued to use the term for ease of reference in cases that involve both the

       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                        Page 13 of 18
[26]   The Court then addressed Article 1, Section 11. After reviewing the historical

       treatment of the provision, the Court held that a defendant can establish

       standing by demonstrating “ownership, control, possession, or interest” in

       either the premises searched (as under the Fourth Amendment) or “the

       property seized.” Id. at 534. However, the Court’s subsequent discussion of the

       case before it made clear that standing based on “the property seized” only

       allows for challenges to the actual seizure of the property, not to any entry that

       made the seizure possible. Specifically, the Court concluded that the

       defendant’s admitted possessory interest in the gun gave him standing to

       challenge its seizure, but, “[a]s noted in our prior discussion [regarding the

       Fourth Amendment], the defendant does not have standing to challenge the

       entry into his former bedroom and closet. He has shown no ownership,

       control, possession or interest in the premises searched.” Id. at 534-35

       (emphasis added). Ultimately, although the defendant had standing to

       challenge the seizure of the gun, the Court affirmed the trial court’s rejection of

       that challenge because the gun was in open view in the closet and was illegal (at

       the time, possession of a sawed-off shotgun was prohibited in Indiana). Id. at

       535.


[27]   So what good does “property seized” standing do for a criminal defendant if it

       does not permit challenges to the initial entry into the premises searched? The




       Fourth Amendment and Article 1, Section 11, see, e.g., Campos v. State, 885 N.E.2d 590 (Ind. 2008), and I do
       the same here.

       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                      Page 14 of 18
       final paragraph of the Peterson Court’s standing discussion illustrates one

       possibility. The Court noted that while one officer had testified that the gun

       was in open view in the closet, another had testified that it was found in a duffel

       bag. Though the Court deferred to the trial court’s finding that the gun was in

       open view, the fact that the Court discussed the issue implies that if the officers

       had found the gun in a duffel bag claimed by the defendant, the defendant may

       have been able to make out an Article 1, Section 11 violation. See also State v.

       Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (holding that defendant

       had standing to challenge search of her purse even if she did not have standing

       to challenge search of van in which purse was found).


[28]   Here, Conn did not establish either “premises searched” standing or “property

       seized” standing. Regarding the premises, he did not present any evidence that

       he was an “owner” of the club, that he was a member of the club, that he was

       an invited guest, or that he had any sort of permission to be on the club’s

       property. For all we know, Conn was a trespasser on the night of his arrest.

       Therefore, he had no standing to challenge the officers’ initial entry onto club

       property. See Peterson, 674 N.E.2d at 534.6


[29]   And to the extent Conn asserts “property seized” standing, that claim fails as

       well. He has never claimed or admitted any sort of interest in the

       methamphetamine or the paraphernalia. In fact, there is evidence that he



       6
        For the same reason, I would also affirm the trial court’s rejection of Conn’s claim under the Fourth
       Amendment. See Peterson, 674 N.E.2d at 532-33.

       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                      Page 15 of 18
       specifically denied any knowledge of those items. See Tr. p. 108. As for the

       gun, while Conn admitted on the scene and in a post-arrest interview that he

       had possessed the gun momentarily for purposes of hiding it behind the

       building, there is no evidence that he had any possessory interest in the gun

       after he did so. The prosecutor told the judge outside the presence of the jury

       that Officer Hagerty was prepared to testify that the gun belonged to a woman

       who was at the club with Conn and that Conn said he was hiding it for her. Tr.

       pp. 38-43. Conn did not present any evidence to contradict this version of

       events, so he cannot claim that he had any continuing interest in the gun at the

       time the officers recovered it.7


[30]   The majority does not address whether Conn had standing to make an Article

       1, Section 11 claim, concluding instead that the State failed to raise the issue in

       the trial court and therefore waived it for purposes of appeal. I disagree. When

       Conn first objected to the evidence, the prosecutor pointed out that “there’s

       been no evidence that the Defendant has any kind of reasonable expectation of

       privacy on private property whether it’s his or had any right to be there.” Tr. p.

       37. The majority acknowledges this argument but holds that it went only to




       7
         Of course, Conn’s failure to claim a possessory interest in the items, either at trial or on appeal, may have
       something to do with the fact that he was charged with illegally possessing those exact items. See, e.g., Person
       v. State, 764 N.E.2d 743, 749 (Ind. Ct. App. 2002) (explaining that defendant challenging search of house and
       seizure of gun, in case charging unlawful possession of a firearm by a serious violent felony, denied
       ownership of gun “for obvious reasons”), trans. denied; Mays v. State, 719 N.E.2d 1263, 1267 (Ind. Ct. App.
       1999) (explaining that defendant challenging search of apartment building atrium and seizure of cocaine, in
       case charging possession of cocaine, did not admit possessory interest in cocaine “for obvious reasons”),
       trans. denied.

       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017                        Page 16 of 18
       Conn’s Fourth Amendment claim. Slip op. at 2 n.2 (citing Litchfield v. State, 824

       N.E.2d 356, 359 (Ind. 2005)).


[31]   But to the extent that the prosecutor’s response was limited to Conn’s lack of an

       interest in the premises, it was commensurate with Conn’s own limited

       objection, which asserted only that the officers acted unconstitutionally by

       “entering onto private property.” Tr. p. 36. Conn’s objection made no mention

       of the officers’ actions after they passed the locked gate, such as moving the

       boards and leaves that were covering the items or opening the coin purses.

       Where a defendant challenges the entry into the premises searched, our

       Supreme Court’s decision in Peterson teaches that the standing analysis under

       Article 1, Section 11 is no different than the analysis under the Fourth

       Amendment. See 674 N.E.2d at 534 (indicating that conclusion that defendant

       had “no reasonable expectation of privacy,” and therefore no standing, under

       Fourth Amendment was dispositive of “premises searched” standing under

       Article 1, Section 11); see also Allen v. State, 893 N.E.2d 1092 (Ind. Ct. App.

       2008) (noting that there is not “much of a difference, if any, in result” regarding

       standing under Fourth Amendment and Article 1, Section 11 “when a

       defendant’s interest in seized property is not at issue”), reh’g denied, trans. denied.

       In short, because Conn’s objection focused on the officers’ initial entry onto

       club property, the prosecutor’s statement that Conn had failed to establish that

       he had “any kind of reasonable expectation of privacy on private property,”

       that “it’s his,” or that he “had any right to be there” served to challenge Conn’s

       standing under both the Fourth Amendment and Article 1, Section 11.


       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 17 of 18
       Therefore, the State did not waive the issue and has properly raised it on

       appeal.


[32]   To be clear, I acknowledge that the officers’ conduct in this case was

       constitutionally suspect. I simply conclude that Conn has not shown that he is

       entitled to challenge that conduct. As such, I would hold that the trial court

       properly admitted the challenged evidence and would affirm Conn’s

       convictions.




       Court of Appeals of Indiana | Opinion 24A01-1703-CR-574| December 20, 2017   Page 18 of 18
