                                                                               FILED
                                                                           Mar 18 2020, 9:08 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John F. Crawford                                          Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Andrece Tigner,                                           March 18, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1478
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Steven J. Rubick,
      Appellee-Plaintiff                                        Magistrate
                                                                Trial Court Cause No.
                                                                49G20-1901-F2-3574



      May, Judge

[1]   Andrece Tigner appeals the trial court’s order denying his motion to suppress.

      He raises two issues on appeal, but we find one to be dispositive and restate it

      as: whether the search of Tigner incident to his arrest was supported by

      probable cause as required by the Fourth Amendment to the United States

      Constitution. We reverse and remand.
      Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020                           Page 1 of 11
                            Facts and Procedural History                              1




[2]   In January 2019, Jill Jones, a Marion County Community Corrections law

      enforcement liaison, received an e-mail indicating that Isiah Williams, an

      individual on home detention, tampered with his monitoring device, tried to

      alter his drug screen, and used illegal narcotics. Jones and Officer Scott Nickels

      of the Indianapolis Metropolitan Police Department (“IMPD”) conducted a

      home visit at Williams’ address. Jones knocked numerous times on Williams’

      door and heard movement behind the door. Eventually, someone inside the

      residence asked who was at the door, and Jones indicated she was with

      community corrections. Williams opened the door, and Officer Nickels

      smelled the odor of marijuana coming from Williams’ apartment.


[3]   Jones and Officer Nickels both entered the house. Jones could see another

      adult in the apartment’s bedroom. She directed everyone to come into the

      living room. Williams’ brother and Tigner walked out of the bedroom. Tigner

      did not live at the apartment and was visiting Williams at the time of the

      search. Tigner was holding Williams’ young son as he left the apartment’s

      bedroom. Jones went to the kitchen because she had heard movement in that

      area of the house after knocking on the door. Jones opened a cupboard and

      discovered a firearm.




      1
       We heard oral argument in this case on January 28, 2020, at Ivy Tech Community College in Columbus.
      We commend counsel for their advocacy and thank Ivy Tech’s faculty, staff, and students for their
      attendance.

      Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020                         Page 2 of 11
[4]   Officer Tiffany Wren entered the residence after Jones and Officer Nickels. She

      conducted a protective sweep and observed raw marijuana on the dining room

      table. After discovery of the gun and marijuana, officers obtained a search

      warrant for the apartment. In executing the warrant, officers discovered several

      hundred grams of marijuana in a duffel bag in a storage closet located off the

      apartment’s patio. The officers also found pills that were not prescribed to

      Williams, scales, and “roaches.” 2 (Tr. Vol. II at 15.)


[5]   Officer Wren was told “two of the three were going.” (Id. at 40.) 3 Officer Wren

      interpreted this to mean that Tigner and Williams were to be arrested and put in

      the police wagon. Accordingly, Officer Wren conducted a search incident to

      arrest of Tigner. In Tigner’s pants pockets, she discovered over a thousand

      dollars in United States currency, pills, and two key fobs. Officer Nickels took

      one of the key fobs, went out onto the apartment building landing, and hit the

      lock button on the key fob, which activated the lights and horn of a minivan in

      the parking lot.


[6]   Detective Gary Hadden arrived on the scene with a police dog. The animal

      sniffed the van and alerted, indicating the presence of drugs. Officer Wren

      applied for a search warrant to search the vehicle, and the court granted the




      2
       “Roach” is a slang term for “the remains of a smoked marijuana cigarette.” The Online Slang Dictionary.
      http://onlineslangdictionary.com/meaning-definition-of/roach [https://perma.cc/99TZ-UFPJ].
      3
       Officer Wren testified she did not remember which officer told her Tigner was going in the police wagon.
      Officer Nickels testified he told Officer Wren that Tigner and Williams were being arrested.

      Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020                             Page 3 of 11
      warrant. Officers searched the vehicle and discovered marijuana, synthetic

      marijuana, crack cocaine, heroin, scales, and plastic sandwich bags.


[7]   The State charged Tigner with Level 2 felony dealing in cocaine, 4 Level 3

      felony possession of cocaine, 5 Level 2 felony dealing in a narcotic drug, 6 Level 4

      felony possession of a narcotic drug, 7 Level 6 felony dealing in a synthetic drug

      or synthetic drug lookalike substance, 8 Class A misdemeanor possession of a

      synthetic drug or synthetic drug lookalike substance, 9 Level 6 felony possession

      of marijuana, 10 and Level 6 felony possession of a narcotic drug. 11 On May 22,

      2019, Tigner filed a motion to suppress. The trial court held a hearing on

      Tigner’s motion and denied the motion. Tigner moved to certify the order for

      interlocutory appeal, and the trial court granted his motion. We accepted

      jurisdiction on July 26, 2019.



                                      Discussion and Decision



      4
          Ind. Code § 35-48-4-1.
      5
          Ind. Code § 35-48-4-6.
      6
          Ind. Code § 35-48-4-1.
      7
          Ind. Code § 35-48-4-6.
      8
          Ind. Code § 35-48-4-10.5.
      9
          Ind. Code § 35-48-4-11.5.
      10
           Ind. Code § 35-48-4-11.
      11
           Ind. Code § 35-48-4-6.


      Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020        Page 4 of 11
[8]   Our standard for reviewing the denial of a motion to suppress is like the

      standard we employ in other sufficiency determinations. Johnson v. State, 21

      N.E.3d 841, 843 (Ind. Ct. App. 2014), trans. denied.


              We determine whether substantial evidence of probative value
              exists to support the court’s denial of the motion. We do not
              reweigh the evidence, and we consider conflicting evidence most
              favorably to the trial court’s ruling. However, unlike other
              sufficiency matters, we must also consider the uncontested
              evidence that is favorable to the defendant.


      Id. (internal citations omitted). Nonetheless, when the denial of a motion to

      suppress concerns the constitutionality of a search or seizure, that conclusion is

      a pure question of law that we review de novo. Robinson v. State, 5 N.E.3d 362,

      365 (Ind. 2014).


                         A. Fourth Amendment to United States Constitution

[9]   The Fourth Amendment to the United States Constitution 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 Amendment protects citizens from search or seizure absent a warrant

      supported by probable cause. Durstock v. State, 113 N.E.3d 1272, 1276-77 (Ind.

      Ct. App. 2018), trans. denied. However, there are several exceptions to the

      warrant requirement. Id. at 1277. The State bears the burden of proving that

      Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020          Page 5 of 11
       an exception to the warrant requirement applies for evidence obtained during a

       warrantless search to be admissible at trial. Id.


[10]   “One exception to the warrant requirement is the search incident to arrest,

       which permits ‘a search of the arrestee’s person and the area within his or her

       control.’” Id. at 1278 (quoting Clark v. State, 994 N.E.2d 252, 261 n.10 (Ind.

       2013)). The area within the arrestee’s control signifies the area from which the

       arrestee might gain possession of a weapon or destroy evidence. Stark v. State,

       960 N.E.2d 887, 889 (Ind. Ct. App. 2012), trans. denied. An officer may

       conduct a search incident to arrest if the officer has probable cause to make an

       arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied.


[11]   “Probable cause for an arrest exists if at the time of the arrest the officer has

       knowledge of facts and circumstances that would warrant a person of

       reasonable caution to believe that the suspect has committed the criminal act in

       question.” K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). Probable

       cause exists “when the totality of the circumstances establishes ‘a fair

       probability’—not proof or a prima facie showing—of criminal activity,

       contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 582 (Ind.

       2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (emphasis added). We

       review the determination of probable cause de novo, and an officer’s subjective

       belief regarding whether probable cause existed has no legal effect. K.K., 40

       N.E.3d at 687.




       Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020          Page 6 of 11
[12]   At the suppression hearing, Officer Nickels testified that at the time Officer

       Wren conducted her search, Tigner was being arrested for visiting a common

       nuisance. A person commits the crime of visiting a common nuisance by

       “knowingly or intentionally” visiting a “building, structure, vehicle, or other

       place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35-

       45-1-5. Tigner argues the police did not have probable cause to arrest him for

       visiting a common nuisance at that time because there was no evidence

       Williams’ apartment was a place where “continuous or recurrent prohibited

       activity [took] place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App.

       2018). 12


[13]   The State argues evidence of the apartment being a place of repeated drug use

       can be inferred from the facts that the apartment belonged to Williams and that

       community corrections arrived at Williams’ apartment based on information

       that Williams was using drugs. However, the plain language of the common

       nuisance statute requires that the visitor know the apartment was being used for

       the consumption, manufacture, or sale of illegal drugs. A visitor may not know

       the person he is visiting is subject to community corrections or that law

       enforcement suspects the person has recently used drugs.




       12
          A prior version of the common nuisance statute required that a building be used for a prohibited activity
       only once for it to be considered a common nuisance, but the General Assembly amended the statue in 2016
       out of “a conscious desire on the part of our Legislature that the common nuisance statute not be applied to
       isolated instances of prohibited activity.” Leatherman, 101 N.E.3d at 884 (emphasis in original).

       Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020                               Page 7 of 11
[14]   Further, the State contends Tigner’s presence as a visitor in Williams’

       apartment, combined with the evidence discovered during the search of the

       apartment, shows a fair probability Tigner knew the apartment was regularly

       used for the consumption or sale of illegal drugs. However, the duffel bag

       containing hundreds of grams of marijuana was found inside a closet that a

       visitor would not be able to readily observe. The smell of burnt marijuana and

       a small amount of marijuana in plain view would denote to a visitor an isolated

       instance of drug use, but it does not show the apartment was being used on a

       continuous basis for the distribution or consumption of marijuana. Thus, the

       officers lacked probable cause to arrest Tigner for visiting a common nuisance

       at the time Officer Wren conducted her search incident to arrest. See

       Leatherman, 101 N.E.3d at 884 (holding there was insufficient evidence to

       support conviction for maintaining a common nuisance when the State failed to

       prove the defendant’s vehicle was used on more than one occasion for the sale

       of an illegal substance).


[15]   The State also argues there was probable cause to arrest Tigner for possession of

       marijuana. It is illegal for a person to knowingly or intentionally possess

       marijuana. Ind. Code § 35-48-4-11. In order to commit the offense of

       possession of marijuana, the arrestee must have either actual possession or

       constructive possession of marijuana. Matter of J.L., 599 N.E.2d 208, 212 (Ind.

       Ct. App. 1992), trans. denied.


[16]   Constructive possession requires the individual have both the intent and the

       capability to maintain dominion and control over the illegal substance. Id. A

       Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020        Page 8 of 11
       person’s “mere presence where drugs are located or his association with persons

       who possess drugs is not alone sufficient to support a finding of constructive

       possession.” Id. The intent to maintain dominion and control over an illegal

       substance can be inferred from “proof of a possessory interest in the premises

       on which illegal drugs are found” because “the law infers that the party in

       possession of the premises is capable of exercising dominion and control over

       all items on the premises.” Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).


               However, the law takes a different view when applying the intent
               prong of constructive possession. When a defendant’s possession
               of the premises on which drugs are found is not exclusive, then
               the inference of intent to maintain dominion and control over the
               drugs ‘must be supported by additional circumstances pointing to
               the defendant’s knowledge of the nature of the controlled
               substances and their presence.’ Lampkins, 682 N.E.2d at 1275.
               The ‘additional circumstances’ have been shown by various
               means: (1) incriminating statements made by the defendant, (2)
               attempted flight or furtive gestures, (3) location of substances like
               drugs in settings that suggest manufacturing, (4) proximity of the
               contraband to the defendant, (5) location of the contraband
               within the defendant’s plain view, and (6) the mingling of the
               contraband with other items owned by the defendant. Henderson
               v. State, 715 N.E.2d 833, 836 (Ind. 1999).


       Id. at 341.

[17]   Here, Tigner did not have an exclusive possessory interest in the apartment. He

       did not live there. See Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2009)

       (holding visitor to property had no interest in the property searched and

       therefore could not challenge the constitutionality of the search), trans. denied.

       He was visiting Williams’ apartment at the time of the community corrections
       Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020          Page 9 of 11
visit. The State argues Tigner was close enough to the marijuana found in plain

view that his capability to maintain dominion and control over the contraband

may be inferred. However, at the time of the search incident to arrest, officers

knew Tigner was in an apartment where marijuana had been consumed, but

marijuana was not found in the bedroom where Tigner was located when

officers entered the apartment. Thus, Tigner did not constructively possess the

marijuana found in plain view because he was not in proximity to it, there is no

evidence Williams’ apartment was used for the manufacture of drugs, Tigner

did not make any incriminating statements, nor were items he owned

intermingled with contraband. Therefore, officers lacked probable cause to

arrest Tigner for possession of marijuana at the time Officer Wren conducted

the search incident to arrest. See Hardister v. State, 849 N.E.2d 563, 574 (Ind.

2006) (holding visitor did not constructively possess firearms when the visitor

was arrested in house’s attic and guns were found in the house’s basement and

living room). Officer Wren’s search of Tigner incident to Tigner’s arrest

violated Tigner’s Fourth Amendment rights against unlawful search and

seizure. 13



                                            Conclusion



13
  Since the key fob was found in the search incident to an illegal arrest, the drugs found as a result of the key
fob being used should also be suppressed as fruit of the poisonous tree. See Esquerdo v. State, 640 N.E.2d
1023, 1030 (Ind. 1994) (holding evidence gathered during illegal warrantless entry into home as well as
evidence gathered pursuant to later issued search warrant was inadmissible).

Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020                                 Page 10 of 11
[18]   The search of Tigner incident to arrest was unconstitutional because the officers

       lacked probable cause to arrest Tigner for a crime as required by the Fourth

       Amendment. Therefore, we reverse the trial court’s denial of Tigner’s motion

       to suppress and remand for further proceedings consistent with this opinion.


[19]   Reversed and remanded.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020     Page 11 of 11
