                                                                                               FILED
                                                                                          Apr 18 2016, 8:58 am

                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court

      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                       Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Toddrick Ogburn,                                          April 18, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A01-1509-CR-1546
              v.                                                Appeal from the Vanderburgh
                                                                Circuit Court
      State of Indiana,                                         The Honorable Kelli E. Fink,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                82D02-1404-FB-418



      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Toddrick Ogburn was convicted of possession of

      marijuana with intent to deliver, in an amount greater than ten pounds, a Class

      C felony. Ogburn appeals, raising two issues for our review, one of which we

      find dispositive: whether the trial court abused its discretion by admitting

      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                Page 1 of 22
      evidence obtained in violation of the Fourth Amendment. Concluding the trial

      court abused its discretion, we reverse and remand.



                            Facts and Procedural History                              1




[2]   On July 11, 2013, Officer Gregory Hosterman of the Evansville Police

      Department was dispatched to an apartment to investigate a report of a

      burglary. When Officer Hosterman arrived, he found the front door ajar and

      the first-floor window adjacent to the front door broken. Suspecting a burglary

      had occurred, he requested assistance to conduct a protective sweep of the

      residence. Once additional officers arrived, Officer Hosterman entered the

      residence, which appeared “ransacked.” Transcript at 9. Large pieces of

      furniture were flipped over, the kitchen cabinets were open, and clothes were

      strewn everywhere. The officers found no one inside but noticed an odor of

      burnt marijuana.


[3]   Officer Hosterman exited the residence and requested a crime scene detective to

      take photographs. Detective Todd Lincoln arrived shortly thereafter and began

      processing the scene. While photographing the interior of the residence,

      Detective Lincoln discovered two baggies of suspected narcotics inside a large,

      opaque vase. The vase did not appear to be damaged, but Detective Lincoln

      was curious about a metal rod protruding from it. Detective Lincoln stood




      1
        We heard oral argument in this case on March 31, 2016, at DePauw University. We commend counsel for
      their advocacy and thank DePauw’s faculty, staff, and students for their participation and hospitality.

      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                    Page 2 of 22
      directly over the vase to photograph the inside of it, using the zoom function on

      his camera. The photograph shows what appears to be two baggies at the

      bottom of the vase. After reviewing the photograph, Detective Lincoln zoomed

      in further and took another photograph. That photograph clearly shows two

      baggies—one containing multicolored pills and another containing a white

      powder.


[4]   Detective Lincoln exited the residence to inform Officer Hosterman of his

      discovery. Both officers re-entered the residence to look inside the vase. Officer

      Hosterman agreed the baggies likely contained narcotics and requested a

      narcotics detective. Detective Tony Johnson responded to the call. Detective

      Johnson also entered the residence to look inside the vase and agreed the

      baggies appeared to contain narcotics. Officer Hosterman then obtained a

      search warrant for the residence based upon the odor of burnt marijuana inside

      the residence and the baggies of suspected narcotics inside the vase. The search

      warrant authorized the police to search for:

              fruits, instrumentalities and evidence pertaining to the crime of
              dealing and/or possession of controlled substances, specifically
              cocaine and/or ecstasy and/or marijuana as more particularly
              described as follows:


                       1. Cocaine;

                       2. Ecstasy;

                       3. Marijuana;

                       4. Books, records, receipts, notes, ledgers and other
      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016    Page 3 of 22
                       papers, and records of telephone call[s] recorded on a
                       cellular telephone relating to the sale or distribution of
                       controlled substances.

                       5. Books, records, receipts, bank statements and records,
                       money drafts, letters of credit, money order and cashier’s
                       checks receipts, passbooks, bank checks, and other items
                       evidencing the obtaining, secreting, transfer, and/or
                       concealment and/or expenditure of money;

                       6. Financial proceeds of dealing in controlled substances
                       such as lawful U.S. Currency;

                       7. Indicia of occupancy, residency or ownership such as
                       labels, identification cards, letters, or photographs;

                       8. Scales and other types of instruments used to weigh
                       controlled substances;

                       9. Plastic baggies and other instruments commonly used
                       in weighing or packaging controlled substances;

                       10. Computers and other electronic data storage and
                       retrieval devices such as facsimile machines, cellular
                       telephones and pagers which are capable of storing the
                       records described in paragraphs [3 and 4]; and

                       11. Firearms.


      Suppression Hearing Exhibit 1.


[5]   The police seized the following items from the residence pursuant to the search

      warrant: (1) thirty-four pills that field-tested positive for 3, 4-

      methylenedioxymethamphetamine (“MDMA”) (also known as “ecstasy”); (2)


      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016      Page 4 of 22
      approximately ten grams of an unknown white powder; (3) two digital scales;

      (4) five cell phones; (5) assorted paperwork bearing the names “Toddrick

      Ogburn” or “Patricia Rockmore”; and (6) a key fob for a vehicle. Appellant’s

      Appendix at 16; Tr. at 84. When an officer pressed a button on the key fob to

      determine if it belonged to a vehicle in the parking lot, a 2001 Chevrolet Tahoe

      parked approximately twenty-five feet from the building beeped.


[6]   At some point during the search of the residence, a young man arrived,

      identified himself as Divarious Rockmore, and informed the officers that he

      lived in the apartment with his aunt, Patricia Rockmore. The officers

      determined the Tahoe was registered to Patricia Rockmore and called for a K-9

      unit to walk the perimeter of the vehicle. The dog alerted to the presence of

      narcotics, and the police obtained a search warrant for the vehicle. Inside the

      vehicle they discovered two bundles of marijuana weighing over twenty pounds

      each. They also found two receipts—a Western Union receipt signed by

      “Toddrick Ogburn” as well as an invoice for vehicle repairs with the name

      “Todd Rick” at the top. State’s Trial Exhibits 2, 3. Ogburn arrived sometime

      after the officers searched the Tahoe. According to the officers at the scene, he

      admitted the marijuana found in the Tahoe belonged to him.


[7]   The State charged Ogburn with Count I, possession of MDMA with intent to

      deliver, within one thousand feet of a family housing complex, a Class A

      felony; Count II, possession of MDMA with intent to deliver, within one

      thousand feet of a public park, a Class A felony; Count III, possession of

      marijuana with intent to deliver, in an amount greater than ten pounds, a Class

      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 5 of 22
      C felony; Count IV, knowingly maintaining a building used for unlawfully

      keeping controlled substances, a Class D felony; and Count V, knowingly

      maintaining a vehicle used for unlawfully keeping controlled substances, a

      Class D felony.


[8]   Prior to trial, Ogburn filed a motion to suppress, which the trial court granted in

      part:


              Officer Hosterman initially entered the residence . . . after he had
              observed evidence of a break-in or burglary at the residence. This
              Court finds that this initial entry was justified by exigent
              circumstances, which included the need to determine if any
              suspects were in the residence and the need to determine if
              anyone located in the home was in need of aid.

              However, this Court finds that the second entry into the
              residence to document or photograph evidence was not justified
              by exigent circumstances.

              Law enforcement officers then obtained a search warrant for the
              residence based on observations made during the initial entry and
              observations made during the second entry. Probable cause to
              search the residence existed even without the evidence that the
              court has ordered suppressed because the search warrant was also
              based on Officer Hosterman’s observations of a possible burglary
              and his testimony that he smelled marijuana upon his initial
              entry. . . .

              Therefore, any evidence first observed during the second entry
              into the home, including the alleged controlled substances found
              in the urn or vase, is ordered suppressed. Any other evidence
              found during the search of the residence is not suppressed.



      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 6 of 22
       App. at 83-84. Ogburn filed a second motion to suppress, requesting the trial

       court also suppress the evidence seized from the Tahoe. The trial court denied

       the motion. Thereafter, Ogburn filed a motion to dismiss Counts I, II, and IV,

       which the trial court granted in light of its ruling suppressing the evidence found

       inside the vase.


[9]    A jury trial was held in August 2015. When the State offered the marijuana

       bundles into evidence, Ogburn objected, arguing the evidence was a product of

       the illegal search of the residence. The trial court affirmed its denial of

       Ogburn’s second motion to suppress and admitted the marijuana over Ogburn’s

       objection. Ogburn testified and wholly denied speaking to the police on July

       11, 2013. He also denied ever living in the apartment the police searched and

       stated the Tahoe, as well as the marijuana, belonged to Patricia Rockmore (his

       ex-wife). The jury found Ogburn guilty of possession of marijuana with intent

       to deliver as a Class C felony and not guilty of maintaining a common nuisance

       with respect to the Tahoe. The trial court entered judgment of conviction for

       possession of marijuana with intent to deliver and sentenced Ogburn to seven

       years executed in the Department of Correction. This appeal followed.



                                  Discussion and Decision
                                        I. Standard of Review
[10]   Ogburn contends the search of the Tahoe violated the Fourth Amendment,

       which guarantees “[t]he right of the people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures . . . .” U.S.
       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016      Page 7 of 22
       Const. amend. IV. When a defendant challenges the constitutionality of a

       search following a completed trial, we consider the issue to be whether the trial

       court abused its discretion by admitting into evidence the items seized during

       the search. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). An abuse of

       discretion occurs “only when admission is clearly against the logic and effect of

       the facts and circumstances and the error affects a party’s substantial rights.”

       Id. at 260. In reviewing the trial court’s decision, we do not reweigh the

       evidence and consider conflicting evidence most favorably to the ruling.

       Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). We defer to the trial court’s

       factual determinations unless clearly erroneous, id., but the constitutionality of

       the search is a question of law we consider de novo, Carpenter v. State, 18

       N.E.3d 998, 1001 (Ind. 2014).


                                          II. Judicial Estoppel
[11]   In order to claim the protection of the Fourth Amendment, a defendant must

       demonstrate that he or she has “a legitimate expectation of privacy in the

       invaded place.” Rakas v. Illinois, 439 U.S. 128, 143 (1978). The State argues

       Ogburn may not challenge the search of the Tahoe on appeal because he denied

       having a possessory interest in the vehicle at trial. The State contends this

       “contradiction” implicates the doctrine of judicial estoppel. Brief of Appellee at

       13. We have previously explained the doctrine as follows:

               Judicial estoppel is a judicially created doctrine that seeks to
               prevent a litigant from asserting a position that is inconsistent
               with one asserted in the same or a previous proceeding. Judicial
               estoppel is not intended to eliminate all inconsistencies; rather, it
       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016    Page 8 of 22
               is designed to prevent litigants from playing fast and loose with
               the courts. The primary purpose of judicial estoppel is not to
               protect litigants but to protect the integrity of the judiciary. The
               basic principle of judicial estoppel is that, absent a good
               explanation, a party should not be permitted to gain an
               advantage by litigating on one theory and then pursue an
               incompatible theory in subsequent litigation.


       Morgan Cnty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008)

       (citations and internal quotation marks omitted), trans. denied. Our supreme

       court has observed “judicial estoppel in this state has been applied only in civil

       cases . . . .” Smith v. State, 765 N.E.2d 578, 582 (Ind. 2002). But even assuming

       judicial estoppel could apply in a criminal case, we conclude it does not apply

       in this case for two reasons.


[12]   First, Ogburn did not prevail on the position he asserted at trial. We addressed

       this element of judicial estoppel in Allstate Ins. Co. v. Dana Corp., 737 N.E.2d

       1177 (Ind. Ct. App. 2000), vacated in part on other grounds and summarily aff’d, 759

       N.E.2d 1049 (Ind. 2001). In Allstate, Dana (a manufacturer of automotive

       components) argued Allstate and several other insurance companies were

       contractually bound to indemnify Dana for costs arising from environmental

       cleanup. One of the issues Dana raised on appeal was whether the trial court

       erred in determining Dana was judicially estopped from arguing one of the

       policies contained aggregate limits of liability. The insurance companies

       maintained judicial estoppel applied because Dana initially argued one policy

       imposed no aggregate limits and later claimed a similar policy did contain such

       limits. We concluded,

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016       Page 9 of 22
         An essential part of the doctrine is that it prohibits a party from
         presenting a position contrary to one upon which it previously
         prevailed.
         ***
         [A]lthough Dana’s present contention concerning aggregate
         limits is contrary to its prior contention, it gained nothing from
         the prior contention. Rather, it lost its motion for partial
         summary judgment based upon its claim that there was no
         aggregate limit in the Hartford policy. Its position here, while
         inconsistent with its prior position, is not inconsistent with the
         ruling made by the trial court. Thus, there is no concern that
         Dana might twice succeed in this case on each of two
         inconsistent and contrary claims.


Id. at 1193. Based on the foregoing observations, we held the trial court erred

when it determined judicial estoppel applied. Id. at 1193-94. Likewise, by

finding Ogburn guilty of possession of marijuana with intent to deliver, the fact-

finder necessarily rejected Ogburn’s testimony and implicitly concluded Ogburn

did have a possessory interest in the Tahoe.2




2
   The State maintains Ogburn did benefit from disclaiming his possessory interest in the Tahoe because the
jury found him not guilty of maintaining a common nuisance. Yet, Ogburn was convicted of the more
serious possessory offense, which the State prosecuted under a theory of constructive possession. A
defendant constructively possesses an item when he has both the capability and the intent to maintain
dominion and control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). The fact-finder may infer the
defendant had the capability and intent to maintain dominion and control over the item from the simple fact
that he had a possessory interest in the premises where the item was found. Id. If the defendant’s possession
is non-exclusive, however, the inference of intent must be supported by additional circumstances pointing to
the defendant’s knowledge of the nature of the item and its presence. Id. at 174-75. Here, Ogburn told the
police the marijuana belonged to him, and the search of the Tahoe revealed receipts bearing his name. At
trial, Ogburn admitted he had driven the vehicle and had taken it to a mechanic for repairs. Based on this
information, it is reasonable to infer Ogburn had a possessory interest in the Tahoe and constructively
possessed the marijuana found inside of it. Cf. Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010) (“Jury verdicts
in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or
irreconcilable.”).

Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                           Page 10 of 22
[13]   Second, the State’s judicial estoppel argument indirectly raises the issue of

       standing, an issue the State did not raise at the trial court level. In Steagald v.

       United States, 451 U.S. 204 (1981), the United States Supreme Court held the

       State lost its right to challenge the defendant’s expectation of privacy where the

       State failed to raise the issue in the lower courts and had successfully argued the

       defendant’s connection to the place was sufficient to establish his constructive

       possession of the contraband found therein. Id. at 208-11. Similarly, here, the

       State prosecuted Ogburn under a theory of constructive possession—and at no

       point suggested he lacked an expectation of privacy in the Tahoe—but now

       contends Ogburn is judicially estopped from asserting his Fourth Amendment

       rights due to testimony the fact-finder plainly discounted. We are not

       persuaded judicial estoppel should bar Ogburn’s claim on appeal and proceed

       to the merits.


                                    III. Search of the Residence
[14]   The Fourth Amendment protects citizens against unreasonable searches and

       seizures by requiring a warrant based on probable cause. Moore v. State, 827

       N.E.2d 631, 637 (Ind. Ct. App. 2005), trans. denied. “Probable cause exists

       when ‘there is a fair probability that contraband or evidence of a crime will be

       found in a particular place.’” United States v. Grubbs, 547 U.S. 90, 95 (2006)

       (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “[S]earches conducted

       outside the judicial process, without prior approval by judge or magistrate, are

       per se unreasonable under the Fourth Amendment—subject only to a few

       specifically established and well-delineated exceptions.” Arizona v. Gant, 556

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016    Page 11 of 22
       U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

       One such exception applies when the exigencies of a situation make the needs

       of law enforcement so compelling that a warrantless search is objectively

       reasonable. Kentucky v. King, 563 U.S. 452, 460 (2011). Absent exigent

       circumstances, the threshold of a home may not reasonably be crossed without

       a warrant. Payton v. New York, 445 U.S. 573, 590 (1980).


[15]   In deciding whether to issue a search warrant, the task of the issuing magistrate

       is to determine whether a sufficient factual basis exists to permit a reasonably

       prudent person to believe a search of the premises will uncover evidence of a

       crime. Johnson v. State, 32 N.E.3d 1173, 1176 (Ind. Ct. App. 2015), trans. denied.

       The magistrate’s decision should be practical and made in light of all the

       circumstances set forth in the affidavit accompanying the warrant application.

       Id. The duty of the reviewing court is to determine whether the magistrate had

       a “substantial basis” for concluding probable cause existed; that is, “whether

       reasonable inferences drawn from the totality of the evidence support the

       finding of probable cause.” Id. at 1177 (citation omitted). Where a search

       warrant was based on both legally obtained information and information

       obtained in contravention to the Fourth Amendment, the reviewing court

       evaluates the legitimacy of the warrant only in light of the legally obtained

       information. Perez v. State, 27 N.E.3d 1144, 1153 (Ind. Ct. App. 2015), trans.

       denied.


[16]   Officer Hosterman obtained a search warrant for the residence based on the

       odor of burnt marijuana he noticed during his first warrantless entry and the

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 12 of 22
       baggies of suspected narcotics he observed inside the vase during his second

       warrantless entry. Ogburn does not dispute Officer Hosterman’s first entry into

       the residence was justified by exigent circumstances. Where, as here, police

       reasonably believe private property has recently been or is being burglarized,

       officers may enter without a warrant. Bryant v. State, 660 N.E.2d 290, 301 (Ind.

       1995), cert. denied, 519 U.S. 926 (1996). However, “any search conducted

       because police reasonably believe a burglary is in progress or has just occurred

       is limited to areas in which an intruder could reasonably conceal himself.” Id.

       The police “may not use the situation as an excuse to conduct a general search

       for evidence.” Id.


[17]   Here, the trial court ruled “any evidence first observed during the second entry

       into the home, including the alleged controlled substances found in the urn or

       vase” was suppressed but that “any other evidence found during the search of

       the residence” was not suppressed. App. at 84. While the State concedes the

       second entry was not justified by exigent circumstances, Br. of Appellee at 18,3

       the State argues the trial court erred in partially granting Ogburn’s first motion

       to suppress because sufficient independent probable cause existed to support the

       issuance of a search warrant for the residence. More specifically, the State




       3
         See Middleton v. State, 714 N.E.2d 1099, 1103 (Ind. 1999) (“[I]f an officer leaves the residence [where he was
       lawfully present], reentry is not justified in the absence of a warrant, the consent of the owner, or some other
       exception to the warrant requirement.”).

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                          Page 13 of 22
       contends the odor of burnt marijuana alone, noted during Officer Hosterman’s

       first entry, established probable cause to search the residence.


[18]   We addressed a similar situation in Johnson, 32 N.E.3d 1173. Johnson’s

       probation was revoked after the police executed a search warrant at his cousin’s

       residence and discovered a large amount of marijuana in Johnson’s backpack.

       The police obtained the search warrant after entering the residence without a

       warrant and observing what appeared to be marijuana in plain view. Johnson

       argued the warrantless entry and search of his cousin’s residence violated the

       Fourth Amendment. We held the search warrant was supported by probable

       cause even if the information obtained during the warrantless search was not

       considered. Id. at 1176-77.


[19]   The affidavit contained the following facts known to the officer prior to

       conducting the warrantless search:


               1. The officers received information that illegal drug activity was
               taking place at [Johnson’s cousin’s] address.

               2. Prior to knocking on the door of the duplex, the officers
               observed a silver Chevy Impala parked in the driveway. “Based
               upon periodic surveillance of the duplex, over the course of the
               last 4–6 weeks, [the officer] knew this vehicle to come and go
               from the residence on a near daily basis.”

               3. When Johnson opened the door, the officer “immediately
               detected a very strong odor of burnt marijuana coming from
               within the residence.”




       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 14 of 22
                4. Johnson refused to allow the officers inside the residence and
                told them that the residence belonged to his cousin . . . .


       Id. at 1177. In addition,


                [W]hen Johnson answered the door, the officers believed that he
                was under the influence of marijuana because he was sluggish,
                and his eyes were red and droopy. Johnson told the officers that
                no marijuana was in the house but that he had been smoking
                spice. [The officer] testified that the odors of burning spice and
                burnt marijuana do not smell “any where near the same,” and he
                did not believe Johnson’s claim that he had been smoking spice.


       Id.4 Based on these facts, we concluded the officers “had sufficient information

       that would lead a reasonable person to conclude that Johnson had recently

       smoked marijuana and had committed possession of marijuana, and therefore,

       a fair probability existed that evidence of that crime would be found in [his

       cousin’s] residence.” Id. at 1177-78.


[20]   Unlike the officers in Johnson, the officers in the present case had not received

       information that drug activity was taking place, nor spoken with any

       individuals who appeared to be under the influence of marijuana. Moreover,

       Officer Hosterman did not explain why he believed the odor originated from

       within Rockmore’s apartment, as opposed to a neighbor’s apartment. Although

       we have previously held the odor of burnt marijuana alone may constitute




       4
        “Spice” refers to certain synthetic forms of marijuana. See Elvers v. State, 22 N.E.3d 824, 828 (Ind. Ct. App.
       2014).

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                          Page 15 of 22
       probable cause to search a vehicle, State v. Hawkins, 766 N.E.2d 749, 752 (Ind.

       Ct. App. 2002), trans. denied, we conclude the odor of marijuana here failed to

       provide a substantial basis for concluding a search of the apartment would

       uncover evidence of dealing in controlled substances, see Johnson, 32 N.E.3d at

       1176-77. An odor of burnt marijuana alone would not establish probable cause

       to support the extensive search warrant issued in this case.


[21]   In addition, the seizure of the key fob clearly exceeded the scope of the search

       warrant. The Fourth Amendment provides, “[N]o Warrants shall issue, but

       upon probable cause, supported by Oath or affirmation, and particularly

       describing the place to be searched, and the persons or things to be seized.”

       U.S. Const. amend. IV. An exact description is not required, but the items to

       be searched for must be described with some specificity. Overstreet v. State, 783

       N.E.2d 1140, 1158 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004). “A warrant

       conferring upon the executing officer unbridled discretion regarding the items to

       be searched is invalid.” Cutter v. State, 646 N.E.2d 704, 710 (Ind. Ct. App.

       1995), trans. denied.


[22]   The search warrant in this case specifically lists “[i]ndicia of occupancy,

       residency or ownership” as an example of evidence pertaining to the crime of

       dealing and/or possession of controlled substances because such items “tend to

       establish ownership and control of the premises.” Suppression Hr’g Ex. 1. The

       State maintains the key fob could be considered an “[i]ndicia of occupancy,

       residency or ownership” because “[f]inding which vehicle the key fob opened

       would lead to evidence of which person or persons occupied [the residence].”

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 16 of 22
       Br. of Appellee at 20. However, the warrant defines “[i]ndicia of occupancy,

       residency or ownership” as items such as “labels, identification cards, letters, or

       photographs” or “utility bills and/or rent receipts.” Suppression Hr’g Ex. 1.

       These examples properly limit the scope of “[i]ndicia of occupancy, residency

       or ownership” to items bearing a person’s name or likeness. See id. Without

       this limitation, the officers could have seized virtually any item in the

       residence—because an examination of most, if not all, personal possessions

       would lead to evidence of who occupies a particular place. Because the key fob

       was not of the same character as “labels, identification cards, letters, or

       photographs” or “utility bills and/or rent receipts,” the officers exceeded the

       scope of the warrant by seizing it.5


[23]   In short, the search of the residence conducted pursuant to the search warrant

       violated the Fourth Amendment because the second warrantless entry to

       photograph evidence was not justified by exigent circumstances, and the odor

       of marijuana noted during the first entry, without additional facts, fails to

       provide a substantial basis for concluding a search of the apartment would

       uncover evidence of dealing in controlled substances. But even if the odor of

       burnt marijuana alone would establish probable cause to support the search

       warrant issued for the apartment, the seizure of the key fob clearly exceeded the




       5
         An officer executing a valid search warrant may seize evidence not identified in the warrant if the item is in
       plain view and its incriminating nature is immediately apparent. See Jones v. State, 783 N.E.2d 1132, 1137
       (Ind. 2003). The plain view exception does not apply here, however, because a key fob is neither apparently
       nor actually incriminating.

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                           Page 17 of 22
       scope of the warrant. Either way, the piece of evidence that led the police to the

       Tahoe was obtained in violation of the Fourth Amendment.


                                      IV. Search of the Vehicle
[24]   The police requested a K-9 unit to walk the perimeter of the Tahoe because that

       vehicle beeped when the police activated the key fob discovered inside the

       residence. Although the police may conduct a canine sniff on a vehicle without

       obtaining a warrant, see Illinois v. Caballes, 543 U.S. 405, 409 (2005), and a

       positive canine alert may establish probable cause, Florida v. Harris, 133 S. Ct.

       1050, 1058 (2013), the canine sniff in this case occurred as a result of a search

       that violated the Fourth Amendment. By the time the K-9 unit arrived, the

       police had already seized a receipt from the apartment for a security deposit

       paid by “Patricia Rockmore.” State’s Trial Ex. 18. The officers determined the

       Tahoe was registered to Patricia, and Patricia’s nephew confirmed she lived in

       the apartment. Indeed, the warrant for the Tahoe states the request for a K-9

       unit was “predicated upon the information utilized to secure the first search

       warrant for [the residence] earlier that day.” App. at 96. Nonetheless, the State

       contends the trial court did not abuse its discretion by admitting the marijuana

       seized from the vehicle because the officers could have summoned a K-9 unit to

       walk around all the vehicles in the parking lot and could have obtained a

       warrant based on that information alone.


[25]   The fruit of the poisonous tree doctrine bars the admission of evidence “directly

       obtained by [an] illegal search or seizure as well as evidence derivatively gained

       as a result of information learned or leads obtained during that same search or
       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 18 of 22
seizure.” Clark, 994 N.E.2d at 266. To invoke the doctrine, a defendant must

first prove a Fourth Amendment violation and then must show the evidence

was a “fruit” of the illegal search. Id. But the exclusion of evidence is not the

result of a simple “but for” test. Jackson v. State, 996 N.E.2d 378, 384 (Ind. Ct.

App. 2013), trans. denied. The doctrine has no application where (1) “evidence

[is] initially discovered during, or as a consequence of, an unlawful search, but

[is] later obtained independently from activities untainted by the initial

illegality,” Murray v. United States, 487 U.S. 533, 537 (1988) (independent

source); (2) “the information ultimately or inevitably would have been

discovered by lawful means,” Nix v. Williams, 467 U.S. 431, 444 (1984)

(inevitable discovery);6 or (3) “the connection between the lawless conduct of

the police and the discovery of the challenged evidence has ‘become so

attenuated as to dissipate the taint,’” Wong Sun v. United States, 371 U.S. 471,

487 (1963) (citation omitted) (attenuation).7 The burden is on the State to prove

one of these exceptions applies. Clark, 994 N.E.2d at 266, 272.




6
  In Nix, the inevitable discovery exception applied because search parties were approaching the location of
the victim’s body before the defendant made incriminating statements revealing its location during an
interrogation that violated the Sixth Amendment. Id. at 449-50.
7
  In Wong Sun, the following series of events took place: (1) federal agents arrested James Toy without
probable cause; (2) Toy immediately told police he knew Johnny Yee was dealing in narcotics; (3) police went
to Yee’s residence and seized heroin in his possession; (4) Yee told police Toy and “Sea Dog” had provided
the heroin; (5) Toy identified “Sea Dog” by his real name (Wong Sun); (6) police arrested Wong Sun without
probable cause; and (7) Wong Sun was released but voluntarily returned several days later and confessed to
dealing in narcotics. Id. at 473-76. The U.S. Supreme Court held Toy’s statements were fruit of his illegal
arrest that should have been suppressed but that Wong Sun’s confession was not tainted:
      Wong Sun’s unsigned confession was not the fruit of that arrest, and was therefore properly
      admitted at trial. On the evidence that Wong Sun had been released on his own recognizance
      after a lawful arraignment, and had returned voluntarily several days later to make the

Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                         Page 19 of 22
[26]   The State contends the independent source exception applies. The United

       States Supreme Court addressed this exception in Murray v. United States,

       recounting the facts of the case as follows:

                Based on information received from informants, federal law
                enforcement agents had been surveilling petitioner Murray and
                several of his co-conspirators. At about 1:45 p.m. on April 6,
                1983, they observed Murray drive a truck and Carter drive a
                green camper, into a warehouse in South Boston. When the
                petitioners drove the vehicles out about 20 minutes later, the
                surveilling agents saw within the warehouse two individuals and
                a tractor-trailer rig bearing a long, dark container. Murray and
                Carter later turned over the truck and camper to other drivers,
                who were in turn followed and ultimately arrested, and the
                vehicles lawfully seized. Both vehicles were found to contain
                marijuana.

                After receiving this information, several of the agents converged
                on the South Boston warehouse and forced entry. They found
                the warehouse unoccupied, but observed in plain view numerous
                burlap-wrapped bales that were later found to contain marijuana.
                They left without disturbing the bales, kept the warehouse under
                surveillance, and did not reenter it until they had a search
                warrant. In applying for the warrant, the agents did not mention
                the prior entry, and did not rely on any observations made during
                that entry. When the warrant was issued—at 10:40 p.m.,
                approximately eight hours after the initial entry—the agents
                immediately reentered the warehouse and seized 270 bales of




              statement, we hold that the connection between the arrest and the statement had “become so
              attenuated as to dissipate the taint.”
       Id. at 491 (citation omitted).

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                     Page 20 of 22
               marijuana and notebooks listing customers for whom the bales
               were destined.


       487 U.S. at 535-36.


[27]   The district court denied Murray’s motion to suppress the evidence seized from

       the warehouse, and Murray was convicted of conspiracy to possess and

       distribute illegal drugs. He subsequently appealed, arguing the search warrant

       was tainted by the officers’ prior warrantless entry into the warehouse. The

       Supreme Court held the Fourth Amendment does not require suppression of

       “evidence initially discovered during, or as a consequence of, an unlawful

       search, but later obtained independently from activities untainted by the initial

       illegality.” Id. at 537. However, the burden was on the State to show “the

       agents would have sought a warrant if they had not earlier entered the

       warehouse.” Id. at 543 (emphasis added).


[28]   The State contends “the officers could have summoned a dog to sniff the

       exteriors of vehicles in the parking lot and could have obtained a warrant based

       on that information alone,” Br. of Appellee at 18 (emphasis added), but we

       have not located any evidence in the record suggesting the State would have

       conducted a canine sniff on every vehicle in the parking lot if they had not

       earlier searched the residence. As a result, the State has failed to meet its

       burden. The evidence seized from the Tahoe was derivatively gained as a result

       of information learned during an illegal search of the residence, and the

       independent source exception does not apply. Accordingly, the bundles of


       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016   Page 21 of 22
       marijuana are poisoned fruit, and the trial court abused its discretion by

       admitting them.8



                                                 Conclusion
[29]   The trial court abused its discretion by admitting the bundles of marijuana

       obtained in violation of Ogburn’s Fourth Amendment rights. We therefore

       reverse and remand with instructions that Ogburn’s conviction be vacated.


[30]   Reversed and remanded.


       Crone, J., and Altice, J., concur.




       8
        Because we conclude the trial court abused its discretion by admitting the bundles of marijuana into
       evidence, we need not address whether admitting evidence of the weight of those bundles also constituted an
       abuse of discretion.

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1546| April 18, 2016                      Page 22 of 22
