                                                                            FILED
                                                                        Feb 22 2019, 9:13 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Glen E. Koch, II                                           Curtis T. Hill, Jr.
Boren Oliver & Coffey, LLP                                 Attorney General of Indiana
Martinsville, Indiana                                      Justin F. Roebel
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Meghan E. Price,                                           February 22, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1513
        v.                                                 Appeal from the Morgan Circuit
                                                           Court
State of Indiana,                                          The Honorable Matthew G.
Appellee-Plaintiff.                                        Hanson, Judge
                                                           Trial Court Cause No.
                                                           55C01-1706-F1-1253



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019                           Page 1 of 26
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Meghan Price (Price), appeals her conviction for neglect

      of a dependent resulting in death, a Level 1 felony, Ind. Code § 35-46-1-4(b)(3).


[2]   We affirm.


                                                      ISSUE
[3]   Price presents one issue on appeal, which we restate as: Whether the trial court

      abused its discretion by admitting certain evidence.


                       FACTS AND PROCEDURAL HISTORY
[4]   Price’s son, B.P., was on born in June 2011. As an infant, B.P. exhibited

      difficulties in gaining weight and had developmental delays. Subsequent

      genetic testing revealed that B.P.’s developmental delays were attributed to a

      condition called Fragile X chromosome. Fragile X is an indicator of autism,

      and it is associated with lack of impulse control, disruptive behavior, and

      aggressiveness. Significant developmental delays followed with B.P.’s speech

      being limited to single words until age four, followed by a limited vocabulary of

      approximately 25 words. B.P. also had a history of self-injurious behavior.


[5]   On July 14, 2014, an officer from the Morgan County Sheriff’s Department was

      dispatched to Price’s residence after receiving a report of a domestic dispute.

      Price informed the officer that B.P. had incurred some bruising while in the care

      of her boyfriend, Steven Ingalls (Ingalls). Ingalls was not present when the

      officer arrived. During the visit, the officer noted that B.P. had a scratch above

      Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019    Page 2 of 26
      his ear, a bruise to the right side of his forehead, and a purple bruise on his

      cheek. Price indicated that the domestic dispute resulted following a verbal

      altercation with Ingalls regarding B.P.’s injuries. After taking pictures of B.P.’s

      injuries, the officer left but reported the incident to the Department of Child

      Services (DCS). Price thereafter notified her family members and friends that

      Ingalls had moved out and she did not intend on dating him again. A few

      months later, Price and Ingalls resumed their relationship.


[6]   On November 18, 2015, Price called St. Vincent Hospital pediatric emergency

      department claiming that B.P. had ingested an unknown substance at a grocery

      store, had dilated eyes, and a low heart rate. Price stated that she was on her

      way to the hospital. Ingalls went with Price. While treating B.P., the attending

      nurse instructed Price to change B.P. into a gown. As the nurse was inquiring

      about B.P.’s medical history, she noticed that B.P. had “quite a bit of scratches

      on his face and neck and bruising all over his body.” (Tr. Vol. VIII, p. 57).

      Based on B.P.’s injuries, the attending nurse contacted a social worker, who in

      turn interviewed Ingalls and Price. During the interview, Ingalls was

      “dismissive,” and at “one point, he stormed out of the room” but later returned

      to finish the child abuse assessment. (Tr. Vol. VIII, p. 43).


[7]   On December 1, 2015, B.P. began preschool at Waverly Elementary School.

      On B.P.’s third day of school, Price informed the teacher that B.P. had injured

      his penis with his zipper. While changing B.P.’s diaper that day, the teacher

      observed the head of B.P.’s penis “was extremely bruised.” (Tr. Vol. VI, p. 50).

      As the school year progressed, B.P. missed school with unexcused absences on

      Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 3 of 26
      twenty-five days. B.P. would return from those absences with new injuries, and

      Price would offer an explanation. The school nurse documented B.P.’s injuries

      as follows: multiple bruises on December 15, 2015; a large knot on his head on

      February 1, 2016; various bruises on his head including a “large green bruise on

      left forehead with a large knot” and eyelid bruising on February 11, 2016;

      bruises “all over [the] sides [of his] head” and other bruises all over his body “in

      various stages of healing” on March 3, 2016. (State’s Ex. Vol. II, p.160). In

      February 2016 and March 2016, the school contacted DCS about the injuries.


[8]   In the fall semester of 2016, B.P. had a total of nineteen absences. The school

      nurse continued to document B.P.’s injuries: Pinch marks all over his penis;

      pinch like “bruise on his left ear,” and “busted lip.” (State’s Ex. Vol. II, p.160).

      In September 2016, B.P. was treated for a broken arm and for a face laceration.

      The school bus driver also saw Price threaten “to pop [B.P.] right in the mouth”

      for using foul language. (Tr. Vol. VI, p. 79). In October 2016, B.P. was

      withdrawn from the school. Price conveyed to a friend that she was

      homeschooling B.P. since she was “over the crap” of B.P.’s school reporting her

      to DCS regarding B.P.’s injuries. (Tr. Vol. V, p. 187).


[9]   On November 8, 2016, B.P. was seen at St. Vincent Hospital for a lip laceration

      and underwent surgery two days later. On November 15, 2016, Price took B.P

      to St. Vincent Hospital yet again since he was having trouble breathing. The

      treating physician did not observe breathing difficulties in B.P., but he noticed

      that B.P. had bruising underneath both eyes. During a follow up appointment

      on November 22, 2016, B.P. was diagnosed with asthma and a sinus infection.

      Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 4 of 26
[10]   On November 23, 2016, at approximately 10:00 a.m., an unidentified male

       voice called 911 and reported that there was an unconscious, unresponsive child

       that was not breathing at Price’s apartment. Moments later, emergency trained

       technicians (EMTs), firefighters, and police arrived at Price’s apartment

       building. Ingalls was observed “walking around” like a “complete bystander”

       with “no emotion” holding his infant son and B.P.’s younger brother. (Tr. Vol.

       IV, pp. 134-35). EMTs then heard someone yell for help inside the building.

       The EMTs found B.P. who was unconscious at the bottom of the common

       stairway. When the EMTs asked Price what had happened, Price said that B.P.

       went to bed at 8:30 p.m. the night before, and that shortly before 911 was

       called, she checked on him and found him unresponsive.


[11]   The EMTs attempted CPR but were unable to open B.P.’s jaw. After efforts to

       set up an airway failed, they placed an oxygen mask over B.P.’s mouth and

       nose. One of the EMTs then picked up B.P. and carried him to the ambulance.

       Inside the ambulance, the EMTs inserted an IV and gave B.P. one dose of

       “epinephrine,” and they arrived at the hospital shortly thereafter. (Tr. Vol. IV,

       p. 138).


[12]   Detective Chad Richhart (Detective Richhart) of the Mooresville Police

       Department arrived as the ambulance was leaving with B.P. Because Price and

       Ingalls could not ride with B.P. in the ambulance, Detective Richhart and

       another officer transported them to the hospital. Price was barefoot, and she

       went back to the apartment to retrieve her shoes before going to the hospital.

       Price’s neighbor, Tiffany Hall, Ingalls, and Detective Richhart followed Price to

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019    Page 5 of 26
       the apartment. Detective Richhart stood by the apartment’s doorway. While

       waiting for Price to get ready, Detective Richhart “saw [Price] once or twice

       come up and down the hallway [and] into the living room” and ask Ingalls

       “where is the camera card, where is the camera card?” (Tr. Vol. VII, p. 133).

       Detective Richhart rode with Ingalls, while Price rode with the other officer to

       the hospital.


[13]   At the hospital, Price and Ingalls made inconsistent statements regarding B.P.’s

       mouth injury and when B.P. was last seen in his normal state. For example,

       Price informed a family friend at the hospital that “when the EMTs tried to

       intubate [B.P] . . . they ripped his lip open.” (Tr. Vol. V, p. 236). Price later

       informed that same friend that she had found B.P. “unresponsive, hanging over

       the side of his bed,” and that she carried him to the living room and then “used

       a flathead screwdriver to pry his mouth open so she could” administer CPR on

       him. (Tr. Vol. VI, pp. 9-10).


[14]   As soon as Detective Richhart dropped Ingalls off at the hospital, he went back

       to the apartment. After briefly talking to another officer at the scene, Detective

       Richhart determined that Price’s apartment was not secure. Also, Detective

       Richhart hoped that the walkthrough could be helpful to detect any apparent

       dangerous substances that B.P. might have ingested, and he intended to convey

       that information to the doctors who were treating B.P. During his

       walkthrough, Detective Richhart saw some blood on the bedding in B.P.’s

       bedroom, and on the bedroom floor carpet. Shortly thereafter, Detective

       Richhart and the other officer exited Price’s apartment. At approximately

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 6 of 26
       10:38 a.m., Detective Richhart received a call from the hospital that B.P. had

       died.


[15]   Detective Richhart instructed another officer to seek a search warrant for the

       apartment. After the warrant was issued, the officers began processing Price’s

       apartment for evidence. In B.P.’s bedroom, the officers found a blood spot on

       the carpet, and inside the closet. They recovered a “green pillow that also had

       some blood and a greenish fluid” which seemed like vomit. (Tr. Vol. IV, p.

       187). The officers also found a flathead screwdriver on a table that had blood.

       The officers also documented the medications in the apartment and counted the

       pills.


[16]   At around 11:00 a.m., Ingalls and Price returned to the apartment, and Price

       was furious that the officers were conducting a search of her apartment and

       could not let her inside. While searching B.P.’s bedroom, the officers located a

       camera by B.P.’s bed. Detective Richhart went outside and asked Price how

       the camera worked, and Price said that it “sort of” ran “like a monitor” and

       that it recorded video footage and sent it to “an app” on Price’s cellphone. (Tr.

       Vol. VII, p. 140). Detective Richhart asked Price if he could have her phone,

       and Price indicated that it was in the house. Detective Richhart eventually

       found Price’s cellphone in Price’s bedroom, but it had no power. Detective

       Richhart took the phone to Price, who was sitting outside the apartment in a

       vehicle, to seek help.




       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019   Page 7 of 26
[17]   After the phone had powered, Price informed Detective Richhart that she

       needed to check several things on her phone. Detective Richhart informed

       Price that he “didn’t want her accessing the phone at that time.” (Tr. Vol. VII,

       p. 142). After about “twenty or thirty seconds” of Price “actively . . . hitting the

       screen,” Detective Richhart reached into the car and grabbed the cellphone

       from Price. (Tr. Vol. VII, p. 142). Detective Richhart then ordered another

       officer to obtain a warrant to search Price’s cellphone.


[18]   B.P.’s autopsy revealed that he was a “very frail” five-year-old weighing about

       thirty-five pounds. (Tr. Vol. V, p. 133). B.P.’s cause of death was determined

       to be asphyxiation and the effects of elevated levels of several medications.

       The toxicology report revealed that B.P. had “very elevated levels” of two

       medications—Sertraline and Clonidine. Sertraline is an antidepressant which,

       in high doses, can cause “depression of the respiratory system.” (Tr. Vol. V, p.

       103). Clonidine is a blood pressure medication which treats anxiety and it can

       cause the lowering of “blood pressure.” (Tr. Vol. V, p. 103). Also, the

       toxicology report showed that Risperidone, a prescribed drug that treats

       schizophrenia, was found in B.P.’s body. When the three drugs are used

       together, they can cause drowsiness, sleepiness, and low blood pressure.


[19]   By another search warrant, Price’s phone was searched. There were several

       texts messages between Price and Ingalls. On November 12, 2016, two weeks

       before B.P. died, Price and Ingalls exchanged a long series of text messages that

       discussed B.P. Ingalls wrote to Price stating



       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019     Page 8 of 26
               I hate your son, he is nothing but a troublemaking worthless
               excuse for a retard[] down to his DNA core malnutritioned ugly
               should[’]ve been cum stain that needs to rot in a mental
               institution playing with his own feces and pissing on himself
               while the nursing staff beats him until he’s deaf dumb and
               motionless. I want to buy a ticket to the moment he takes his last
               breath, so I can be the last thing he sees as I rip his jawbone off of
               his face and personally cut his brainstem in half just to make sure
               not one more stupid fucking thought processes in his two-celled
               fucking brain. He’ll never have a dad bc no one in their right
               fucking mind will ever stay around more than 5 minutes around
               that fucked up kid that [can’t] go 2 days without bashing his own
               face into [] whatever he can so mommy will love on him. Lol,
               kill him while he’s young and do something with your life before
               he robs you of any chance of ever being happy or being anything
               other than a stay at home [retard] caretaker.


       (State’s Exh.140). In response, Price wrote


               He’s not ruining my life, [I’ll] run for the fucking hills before [I]
               stay stressed my entire life or kill him in such a violent way that
               the news can’t even describe the scene without throwing up. I’m
               not going to prison over that little scrawny hand-flapper.


       (State’s Exh.145). Two days after Price sent the above text to Ingalls, she

       conducted an internet search on her phone for information about Risperidone

       overdose. DNA testing also revealed that the blood spots found on the green

       pillow and carpet belonged to B.P. B.P.’s DNA was also found on the flathead

       screwdriver found inside Price’s home.


[20]   On June 23, 2017, the State filed an Information, charging Price with Count I,

       conspiracy to commit murder, a Level 1 felony; Count II, neglect of a


       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019        Page 9 of 26
       dependent resulting in death, a Level 1 felony; and Count III, neglect of a

       dependent resulting in bodily injury, a Class C felony. The State later amended

       the charges to Count I, conspiracy to commit murder, a Level 1 felony; Count

       II, neglect of a dependent resulting in death, a Level 1 felony; and Count III,

       neglect of a dependent resulting in serious bodily injury, a Level 3 felony. The

       State later dismissed the Level 1 felony conspiracy to commit murder. 1


[21]   On May 25, 2018, Price filed a motion to suppress evidence from the search of

       her apartment and the search of her cell phone. Price argued that the search

       warrant for the apartment was obtained based on information learned during an

       unlawful walk-through of the apartment. With regard to the phone, Price

       argued it was improperly seized and the search warrant was not supported by

       probable cause. On May 26, 2018, the State filed a responsive motion, and

       after an evidentiary hearing, the trial court denied Price’s motion.


[22]   A jury trial was held on June 1 through June 12, 2018. At trial, Price renewed

       her motion to suppress but it was denied. At the close of the evidence, Price

       was found guilty of Level 1 felony neglect of a dependent resulting in death and

       Level 3 felony neglect of a dependent resulting in serious bodily injury. On

       June 26, 2016, the trial court conducted a sentencing hearing, merged the Level

       3 felony neglect of a dependent resulting in serious bodily injury into the Level




       1
         Initially, the State had alleged that the Class C felony offense was committed between January 1, 2014 and
       June 30, 2014. However, in the amended Information, the State changed the dates, alleging that the neglect
       of a dependent resulting in bodily injury occurred between July 1, 2014 and November 23, 2016.

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019                          Page 10 of 26
       1 felony neglect of a dependent resulting in death. The trial court then

       sentenced Price to a term of thirty-six years in the Department of Correction.


[23]   Price now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
                                                 I. Standard of Review

[24]   Price argues that the trial court abused its discretion by denying her motion to

       suppress evidence obtained from the search of her apartment and her cellphone,

       arguing that both searches violated her Fourth Amendment rights under the

       United State Constitution. 2 Although Price originally challenged the admission

       of the evidence through a motion to suppress, she appeals following a

       completed trial and challenges the admission of such evidence at trial. Thus,

       the issue is appropriately framed as whether the trial court abused its discretion

       by admitting the evidence at trial. Lanham v. State, 937 N.E.2d 419, 421-22

       (Ind. Ct. App. 2010). The admission or exclusion of evidence is a

       determination entrusted to the discretion of the trial court. Farris v. State, 818

       N.E.2d 63, 67 (Ind. Ct. App. 2004), trans. denied. We will reverse a trial court’s

       decision only for an abuse of discretion. Id. An abuse of discretion occurs




       2
         Price also asserts that search of her apartment and seizure and search of her phone violated her rights under
       Article 1, Section 11, of the Indiana Constitution. However, Price fails develop her argument, and it is
       therefore waived. Ind. Appellate Rule 46(A)(8)(a), see also, Francis v. State, 764 N.E.2d 641, 646-47 (Ind. Ct.
       App. 2002) (notes that Indiana courts interpret and apply Article I, Section 11 independently from federal
       Fourth Amendment jurisprudence and failure by a defendant to provide separate analysis waives any claim
       of error).

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019                            Page 11 of 26
       when the trial court’s action is clearly erroneous and against the logic and effect

       of the facts and circumstances before it. Id.


                                      II. Initial Entry to Price’s Apartment

[25]   The Fourth Amendment states,


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no 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.


       “The fundamental purpose of the Fourth Amendment ‘is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.

       App. 2013).


[26]   Here, Price argues that Detective Richhart violated her Fourth Amendment

       rights by conducting a warrantless entry of her apartment. The State responds

       by stating that the “brief walk-through of the residence was permitted pursuant

       to the exception for exigent circumstances” and the warrant requirement was

       therefore “inapplicable.” (Appellees’ Br. pp. 26-27). We agree.


               [S]earches or seizures inside a home without a warrant are
               presumptively unreasonable. “However, ‘on occasion the public
               interest demands greater flexibility than is offered by the
               constitutional mandate’ of the warrant requirement.”
               Accordingly, there are some carefully delineated exceptions to
               the warrant requirement. “A search without a warrant requires

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019       Page 12 of 26
               the State to prove an exception to the warrant requirement
               applicable at the time of the search.”


               One exception allows police to dispense with the warrant
               requirement in the presence of exigent circumstances. “The
               warrant requirement becomes inapplicable where the ‘exigencies
               of the situation’ make the needs of law enforcement so
               compelling that the warrantless search is objectively reasonable
               under the Fourth Amendment.” Among the well-known exigent
               circumstances that have justified a warrantless search or seizure
               are entries (1) to prevent bodily harm or death; (2) to aid a person
               in need of assistance; (3) to protect private property; and (4) to
               prevent actual or imminent destruction or removal of
               incriminating evidence before a search warrant may be obtained.
               Exigent circumstances have also been found where a suspect is
               fleeing or likely to take flight in order to avoid arrest; or the case
               involves hot pursuit or movable vehicles. In addition, we have
               found exigent circumstances where police entered to aid or
               prevent further injury to victims of violent crime.


       McDermott v. State, 877 N.E.2d 467, 473-74 (Ind. Ct. App. 2007) (citations

       omitted).


[27]   In this case, following a 911 call, officers were dispatched to Price’s apartment

       after a report that B.P. had been found unconscious. The officers’ arrival was

       contemporaneous with the EMTs. Because Ingalls and Price could not ride

       with B.P. in the ambulance, Detective Richhart and another officer transported

       them to the hospital. Detective Richhart thereafter returned to Price’s

       apartment. At Price’s jury trial, Detective Richhart testified that when he

       returned, he briefly spoke to another officer at the scene and determined that



       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019       Page 13 of 26
       Price’s apartment was not secure since he “didn’t know if there was anybody

       else in the apartment.” (Tr. Vol. VII, p. 135). Detective Richhart added


               I just wanted to make sure . . . that there were [] no animals, no
               other people, no apparent dangers. At this time, we had [] no
               idea what had happened to [B.P.]. So we didn’t know if [B.P.]
               had gotten into anything. And if he had been, would there have
               been something apparent that may have helped the doctors make
               a medical diagnosis. Like I said, we just didn’t know if there was
               anything that [] could disrupt even evidence from the scene.


       (Tr. Vol. VII, p. 135). Based on that reasoning, at approximately 10:38 a.m.,

       and in the company of another officer, Detective Richhart entered Price’s

       apartment. During a brief walkthrough that lasted for a about a minute,

       Detective Richhart observed blood spots on the bedding in B.P.’s room and a

       blood spot on the bedroom carpet. No apparent dangers, such as chemical

       substances, were lying around. Moments after exiting Price’s apartment,

       Detective Richhart received a call from the hospital that B.P. had died. At that

       point, Detective Richhart called another officer and instructed him to obtain a

       warrant.


[28]   In Middleton v. State, 714 N.E.2d 1099, 1103 (Ind. 1999), our supreme court

       noted that “[s]ecuring the house eliminates any risk of destruction of evidence.”

       Here, we find Detective Richhart’s cursory walkthrough was permissible in

       ensuring Price’s apartment was secure.


[29]   Secondly, we note that “[t]he very point of exigent circumstances is that officers

       are confronted with a situation where time is of the essence and immediate

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019   Page 14 of 26
       action required.” Montgomery, 904 N.E.2d at 381. As stated by the Supreme

       Court, “[w]e do not question the right of the police to respond to emergency

       situations . . . The need to protect or preserve life or avoid serious injury is

       justification for what would be otherwise illegal.” Mincey v. Arizona, 437 U.S.

       385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). We cannot find many

       situations more urgent than a child who has been found unconscious, was on

       his way to the hospital, and an officer’s need to save that child’s life by looking

       for apparent dangerous substances in the apartment that the child might

       possibly have consumed, and in turn offering that information to doctors to aid

       in the child’s treatment. Additionally, we note that unlike the majority of cases

       discussing exigent circumstances, Detective Richhart’s entry was not motivated

       by an intent to apprehend a suspect or to seize incriminating evidence. See, e.g.,

       McDermott, 877 N.E.2d at 474. One of the concerns Detective Richhart had

       prior to entering Price’s apartment was to assist the doctors with any

       information that would aid in B.P.’s treatment. Detective Richhart was

       unaware that B.P. had died when he performed his cursory sweep, and the

       record is silent as to whether the walkthrough was geared at gathering

       incriminating evidence.


[30]   Moreover, we find that Detective Richhart’s warrantless entry into Price’s

       home constituted a legitimate exercise of the community caretaking function of

       the police. The community caretaking function is:


               a catchall term for the wide range of responsibilities that police
               officers must discharge aside from their criminal enforcement

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019        Page 15 of 26
               activities. Indeed, besides enforcing criminal laws, police aid
               those in distress, combat actual hazards, prevent potential
               hazards . . . and provide an infinite variety of services to preserve
               and protect community safety.


       Wilford v. State, 50 N.E.3d 371, 375 (Ind. 2016). When Detective Richhart

       returned to Price’s apartment, he objectively believed that his cursory inspection

       of Price’s apartment would have been helpful to detect any apparent hazardous

       substances that B.P. might have consumed, and in turn, relay that information

       to the doctors who were treating B.P. In our view, we find that Detective

       Richhart was acting out of his concern for B.P. who was in need of medical

       assistance, and based upon the circumstance, we conclude that Detective

       Richhart was engaged in a community caretaking function and the entry did

       not violate Price’s Fourth Amendment rights.


[31]   In her brief, Price argues that no exigency existed because Detective Richhart

       did not return to the apartment until 10:40 a.m. and that Detective Richhart

       “returned from the hospital approximately forty-five minutes after leaving”

       Price’s apartment. (Appellant’s Br. p. 16). The record does not support Price’s

       claim. Detective Richhart testified he returned to Price’s apartment “before

       10:30 a.m.,” and that he was gone for “a couple of minutes” after transporting

       Ingalls to a hospital which was “maybe 300 yards away.” (Suppression Tr. p.

       8). At the suppression hearing, and at trial, Detective Richhart consistently

       testified that he performed the walkthrough at 10:38 a.m. before learning of

       B.P.’s death and he hoped to find any apparent evidence that might assist the



       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 16 of 26
       doctors in B.P.’s treatment, and his walkthrough was intended to secure and

       preserve any evidence located in Price’s apartment.


[32]   Under the facts and circumstances of this case, the State proved exigency and

       we conclude that Detective Richhart’s warrantless entry into Price’s apartment

       did not violate the Fourth Amendment. Thus, the trial court did not abuse its

       discretion in admitting any evidence derived from that walkthrough.


                                                      II. Cellphone

[33]   Next, Price argues that the seizure and search of her cellphone violated her

       rights under the Fourth Amendment. 3 Specifically, she contends that Detective

       Richhart improperly seized her cellphone before obtaining a search warrant.

       Additionally, Price argues that the search warrant was overly broad.


                                                        A. Seizure


[34]   Absent probable cause, exigent circumstances alone are insufficient to justify a

       warrantless seizure. Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991).

       (“[E]xigent circumstances justify dispensing with the search warrant, but do not

       eliminate the need for probable cause.”); Jones v. State, 409 N.E.2d 1254, 1258

       (Ind. Ct. App. 1980) (“A search without probable cause is never justified by the

       need to prevent the disappearance or destruction of evidence of a crime.”).




       3
         Price likewise makes no separate analysis under the Indiana Constitution regarding the seizure and search
       of the cellphone. Thus, Price waives her claim since she fails to present a separate independent analysis
       supporting her state constitutional claim. See Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001).

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019                          Page 17 of 26
       Whether a particular warrantless seizure violates the guarantees of the Fourth

       Amendment depends upon the facts and circumstances of each case. State v.

       Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans. denied. “The State bears

       the burden of proving that the warrantless seizure fell within an exception to the

       warrant requirement.” Id.


[35]   The State asserts that exigent circumstance supported the seizure. Again, we

       note that “[e]xigent circumstances compelling quick action before a warrant can

       be obtained are recognized as . . . [an] exception” to the warrant requirement.

       Bryant v. State, 660 N.E.2d 290, 300-01 (Ind. 1995). This exception allows

       officers to act without a warrant when they “believe evidence may be destroyed

       or removed before a search warrant is obtained.” Hawkins v. State, 626 N.E.2d

       436, 439 (Ind. 1993).


[36]   Turning to the present facts, during the search of Price’s apartment, Price and

       Ingalls relayed to other officers at the scene that there was a “monitor or a

       camera” in B.P.’s room, and that it “recorded” and sent footage to on an “app”

       on Price’s phone. (Tr. Vol. VII, p.140). Detective Richhart hoped that

       “whatever footage” that was in Price’s cellphone “could answer a lot of

       questions” regarding B.P.’s cause of death. (Tr. Vol. VII, p.140). After finding

       Price’s phone in Price’s bedroom, Detective Richhart asked Price for assistance

       to retrieve the video footage but started punching the cellphone screen. Because

       Detective Richhart reasonably believed that Price was deleting evidence from

       her phone, he correctly seized the phone. Here, the State proved both exigency

       and an objective reasonable belief from Detective Richhart that Price was

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019    Page 18 of 26
       destroying evidence from her phone and the seizure of Price’s cellphone did not

       violate the Fourth Amendment.


[37]   Price argues that we should reject the State’s exigency argument, and she

       contends that Detective Richhart improperly created the exigency prior to

       seizing her phone. In particular, she argues, that Detective Richhart unlawfully

       removed her “dead” phone from her apartment, brought it to her for assistance,

       instead of first “obtaining a warrant.” (Appellant’s Br. p. 20). As a general

       matter, officers may not circumvent the warrant requirement by purposefully

       creating exigent circumstances. State v. Williams, 615 N.E.2d 487, 488–89 (Ind.

       Ct. App. 1993). In Williams, a police officer already had probable cause to

       believe there were drugs in a residence before he knocked on the door and it

       thus was clearly foreseeable that the occupant would attempt to destroy

       contraband when the officer knocked and identified himself. Id. at 488-89. We

       held the officer’s subsequent entry into the residence after observing the

       occupant run through the house was unconstitutional and noted that there was

       no explanation as to why a search warrant had not been obtained before

       approaching the residence. Id. Here, by contrast, Price indicated a willingness

       to help by charging and unlocking her phone, and that she would assist

       Detective Richhart in obtaining helpful video footage in her phone. However,

       after the phone was powered, Price began “actively punching stuff on the

       screen” and refused to return the phone when requested. (Tr. Vol. VIII, p.

       142). Detective Richhart had not foreseen that Price would destroy evidence

       from her phone, and based on Price’s alarming acts, Detective Richhart reached


       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019   Page 19 of 26
       into the car and grabbed the phone from Price’s hand. Under the circumstance,

       Detective Richhart seizure of Price’s phone was justified.


                                          B. Overly-Broad Search Warrant


[38]   As an additional argument, Price argues that the warrant to search her phone

       was invalid because it was overly broad. The Fourth Amendment to the United

       States Constitution forbids general search warrants. “‘[A] warrant must describe

       the place to be searched and the items to be searched for.’” Overstreet v. State,

       783 N.E.2d 1140, 1158 (Ind. 2003) (quoting Phillips v. State, 514 N.E.2d 1073,

       1075 (Ind. 1987)), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044

       (2004). Athough the warrant must describe “with some specificity” where

       officers are to search and what they are to seize, “there is no requirement that

       there be an exact description.” Overstreet, 783 N.E.2d at 1158. Nonetheless, the

       warrant must be specific enough so that officers can, “with reasonable effort,”

       ascertain the place to be searched and the items to be seized. Steele v. United

       States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925). This requirement

       “prevents the seizure of one thing under a warrant describing another. As to

       what is to be taken, nothing is left to the discretion of the officer executing the

       warrant.” Marron v. United States, 275 U.S. 192, 198, 48 S.Ct. 74, 72 L.Ed. 231

       (1927); see also Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016) (observing that a

       sufficient description avoids giving the police unbridled discretion). Ultimately,

       the description in a search warrant should “‘be as particular as circumstances

       permit.’” State v. Foy, 862 N.E.2d 1219, 1227 (Ind. Ct. App. 2007) (quoting

       United States v. Lievertz, 247 F.Supp.2d 1052, 1062 (S.D. Ind. 2002)). Moreover,

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 20 of 26
       to satisfy the particularity requirement, it is permissible if a warrant

       incorporates by reference certain supporting documents—such as the probable

       cause affidavit—that collectively “serv[e] to identify the scope of . . . items that

       could properly be seized.” Membres v. State, 889 N.E.2d 265, 276 (Ind. 2008).


[39]   After re-seizing Price’s cellphone, Detective Richhart instructed another officer,

       Detective Larry Sanders (Detective Sanders) to obtain a warrant. A probable

       cause determination hearing was conducted pursuant to that request. Detective

       Sanders explained to the magistrate that the Mooresville Police Department

       was investigating the “suspicious death” of B.P. who had been found by Price

       unconscious that morning. (Appellant’s App. Vol. II, p. 141). Detective

       Sanders continued, “when [the officers] arrived, [Price] had blood on her, [B.P.]

       had blood on [his] face and mouth areas, and it appeared that [Price had] been

       giving CPR” to B.P. (Appellant’s App. Vol. II, p. 141). Detective Sanders

       mentioned that they had already obtained a warrant to search Price’s

       apartment, but the department was seeking an additional warrant to “do a

       forensic search” of Price’s phone. (Appellant’s App. Vol. II, p. 142). When

       asked what specific things the department hoped to find on Price’s cellphone,

       Detective Sanders stated, “[W]e have a phone, we’re trying to cross all of our

       T’s and dot all of our I’s []. Basically, Your Honor, we’re trying to verify her

       story, [i.e.] that at such time she called law enforcement or medical personnel to

       arrive, to where we received the phone call about 10:30 [a.m.].” (Appellant’s

       App. Vol. II, p. 144). Detective Sanders testified that the search was limited to

       “pertinent information” relating to B.P.’s suspicious death, and he testified that


       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019      Page 21 of 26
       if the data on the cellphone is “erased” or reset to factory settings, the

       department would “lose” any possible leads. (Appellant’s App. Vol. II, p. 145).

       At the close of the probable cause determination hearing, the magistrate granted

       the warrant stating, it is “limited” in its “scope.” (Appellant’s App. Vol. II, p.

       146).


[40]   The ensuing search warrant that permitted the search of Price’s cellphone

       provided:


               The right to physically and forensically examine White Samsung
               Galaxy Express 3 phone in a black case belonging to Megan
               Price with [] serial number P86730V59F3, and the electronic
               data and intellectual content contained on said-device[],
               including but not limited to, phone settings and information,
               pictures, videos, audio files, ringtones, voicemails, contact lists,
               calendars, text messages, multi-media messages, other electronic
               communications, records of calls received, sent, or missed,
               details of internet activity, installed applications, memos, route
               data, location data, settings, databases, favorites, historical data,
               documents, and any user-related data, as well as any associated
               accessories, including, but not limited to, chargers, cables, media
               cards and SIM cards. These items will be seized and later
               examined. There may also be the need for decrypting and/or
               breaking of passwords.


               (All of which is evidence of the crimes of neglect, homicide)


       (Appellant’s App. Vol. II, p. 136) (emphasis in the original).




       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019        Page 22 of 26
[41]   Price argues that “[e]ven if there was probable cause to search [her] phone for

       texts and calls a few hours prior to the call to 911, that probable cause did not

       extend to searching everything on the phone.” (Appellant’s Br. p. 26).


[42]   Recently, we addressed the type of evidence which would support a search of a

       suspect’s cellphone in Carter v. State, 105 N.E.3d 1121, 1127 (Ind. Ct. App.

       2018), trans. denied. One of Carter’s claims was that the search warrant

       authorized a broad search of his device and was therefore an impermissible

       general warrant. Id. The warrant in Carter’s case authorized the searching of

       his phone for:


                fruits, instrumentalities and evidence pertaining to the crime(s)
               of DEALING, POSSESSION and/or CONSPIRACY TO
               COMMIT DEALING OR POSSESSION OF
               METHAMPHETAMINE, as more particularly described as
               follows: [ ] Permission to search the above described phone for
               any information relating to calls, messages, including Facebook
               messages and accounts, and all information including but not
               limited to photographs, images, emails, letters, applications, and
               folders as well as any messages that may be stored on the phone
               that would indicate the identity of the phone’s owner/user and
               permission to view and copy said information if deemed
               necessary for preservation.


       Id. at 1129 (emphasis in the original). Notwithstanding Carter’s claims that the

       warrant was a general warrant, we determined that the


               the warrant specifically described the place law enforcement
               could search—the phone recovered from Carter—and specifically
               described what law enforcement could search for—(1) “any
               information relating to calls, messages, including Facebook

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019    Page 23 of 26
               messages and accounts,” and (2) “all information . . . that would
               indicate the identity of the phone’s owner/user.” [] Moreover,
               the first clause permitting the search for calls and messages
               enjoys a close nexus to the probable cause that justified issuing
               the search warrant—which is that Carter was a suspected drug
               dealer, and drug dealers use cell phones to communicate with
               others involved in illicit drug activity. [] Thus, this aspect of the
               search warrant was “tailored to its justifications.”


       Id. at 1130. (internal citations omitted).


[43]   Similar to Carter, the warrant in Price’s case described the place law

       enforcement could search—i.e., Price’s white Samsung Galaxy, and the warrant

       authorized Mooresville Police Department to search for “electronic data and

       intellectual content contained on said-device[], including but not limited to, . . .

       text messages, . . . records of calls received, sent, or missed.” (Appellant’s App. Vol.

       II, p. 136) (emphasis added). The clause of the warrant that related to searching

       of Price’s texts enjoyed a close nexus to the testimony offered by Detective

       Sanders at the probable cause determination hearing—that his department was

       investigating the suspicious death of B.P., and they hoped a search of Price’s

       phone would yield “pertinent information.” (Appellant’s App. Vol. II, p. 145).


[44]   Price argues that the “warrant itself contains no limitation on dates or material

       to search for or a requirement that the search be related to confirming her story

       about finding [B.P.] shortly before calling 911[]; instead, it grants the broad

       right to physically examine the electronic data and intellectual content

       contained on [her] phone.” (Appellant’s Br. p. 27). We disagree. Like looking

       through drawers in a home or office file cabinet for specific files or letters that

       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019           Page 24 of 26
       are relevant to the investigation, a great deal of other information had to have

       been sifted through Price’s phone to find the relevant information. See Carter,

       105 N.E.3d at 1130 (citing United States v. Grimmett, 439 F.3d 1263, 1270 (10th

       Cir. 2006) (holding that “‘[A] computer search may be as extensive as

       reasonably required to locate the items described in the warrant’ based on

       probable cause.”) see also, Wheeler v. State, 135 A.3d 282, 301 (Del. 2016)

       (“Some irrelevant files may have to be at least cursorily perused to determine

       whether they are within the authorized search ambit.”). Although Detective

       Sanders’ testimony established that the scope of the search would be to verify

       Price’s version of events the morning B.P. died, Detective Sanders also testified

       that his department was investigating the suspicious death of B.P., and they

       were looking for any pertinent information relating to B.P.’s death. Indeed,

       two weeks prior, Ingalls and Price discussed killing B.P. through text messages,

       and these text messages were relevant pursuant to the specific portion of the

       warrant that authorized searching Price’s phone for messages relating to the

       death of B.P.


[45]   Based on the foregoing, we conclude that the evidence seized from Price’s

       phone was not pursuant to an impermissibly general warrant. Therefore, the

       trial court did not abuse its discretion by admitting the evidence over Price’s

       objection.


                                              CONCLUSION
[46]   Here, we hold that exigent circumstances existed to allow Detective Richhart’s

       warrantless entry into Price’s apartment and the trial court did not abuse its
       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019    Page 25 of 26
       discretion by admitting evidence procured by that entry. Also, the trial court

       did not abuse its discretion by admitting evidence obtained from Price’s

       cellphone, and the search was pursuant to a valid search warrant.


[47]   Affirmed.


[48]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-1513 | February 22, 2019   Page 26 of 26
