MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 10 2016, 8:31 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Corey L. Scott                                          Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Chandler Turner,                                        November 10, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1602-CR-229
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jose Salinas, Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49G14-1506-F6-22475



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-229 | November 10, 2016   Page 1 of 8
                                          Case Summary
[1]   Chandler Turner appeals his convictions for possession of cocaine and

      marijuana, contending that the police violated his rights under the federal and

      state constitutions when they seized the drugs and that the trial court therefore

      should have kept the State from using the drugs as evidence at trial. Finding no

      error, we affirm.



                            Facts and Procedural History
[2]   In June 2015, a detective told Indianapolis Metropolitan Police Officer Cathy

      Faulk that an African-American male named “Chan” or “Chandler” was

      dealing drugs out of a black Toyota on the 3000 block of Roberta Drive in

      Indianapolis. Officer Faulk patrolled the block in the following days and saw

      an African-American male in a black Toyota Corolla. She did not observe any

      drug activity, but one morning she decided to confront him. She drove by the

      Toyota, parked her own car down the block, and walked toward the man, who

      by then had gotten out of the Toyota and was standing on a nearby sidewalk.

      Officer Faulk spoke to the man, asked for and received his ID, confirmed that

      his name was Chandler Turner, and learned that he was on house arrest for a

      drug charge and that he was not near his home or his place of work. She then

      asked Turner if she could pat him down, and he consented. Officer Faulk did

      not find any contraband on Turner, but she nonetheless handcuffed him

      because she “didn’t feel like running after him if he decide[d] to run.” Tr. p.

      125.

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[3]   Once she had Turner in cuffs, Officer Faulk walked over to the Toyota. She

      looked through the window of the driver’s door and in the cargo pocket of that

      door saw “a white lid on a container that had two burn marks on top of the

      lid.” Id. at 120. Based on her experience with similar items—she later testified

      that she had seen “[m]ore than a hundred,” id. at 121—Officer Faulk believed

      that the lid had been used to smoke illegal drugs. As such, she opened the door,

      grabbed the container, and removed the lid. Inside she found baggies of

      cocaine and marijuana.

[4]   The State charged Turner with possession of cocaine as a Level 6 felony and

      possession of marijuana as a Class A misdemeanor. Before trial, Turner filed a

      motion to suppress the drugs, claiming that Officer Faulk violated his rights

      under both the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution. The trial court held an

      evidentiary hearing at which it heard testimony from Officer Faulk and others,

      then denied the motion. When the State sought to introduce the drugs into

      evidence at the bench trial a few months later, Turner again objected. The trial

      court overruled the objection and eventually found Turner guilty as charged.

[5]   Turner now appeals.



                                Discussion and Decision
[6]   On appeal, Turner renews the Fourth Amendment and Article 1, Section 11

      arguments he made to the trial court. When a defendant challenges a trial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-229 | November 10, 2016   Page 3 of 8
      court’s ruling on such constitutional claims, we review the matter de novo.

      Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016).


                                    I. Fourth Amendment
[7]   Turner first contends that Officer Faulk violated his rights under the Fourth

      Amendment when she confronted him, patted him down, and handcuffed him

      and that the trial court should have applied the exclusionary rule to bar the

      admission of the drugs into evidence. The exclusionary rule is “a deterrent

      sanction that bars the prosecution from introducing evidence obtained by way

      of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229, 231-32

      (2011).

[8]   The Fourth Amendment provides, in part, that “[t]he right of the people to be

      secure in their persons, houses, papers, and effects, against unreasonable

      searches and seizures, shall not be violated[.]” The State concedes that Officer

      Faulk violated this provision when she handcuffed Turner, since she had no

      “objective justification” for doing so. Appellee’s Br. p. 28, 32. It argues,

      however, that Officer Faulk’s discovery and seizure of the drugs was

      independent of and not tainted by that violation and that application of the

      exclusionary rule would therefore be inappropriate. We agree.

[9]   As the State notes, the United States Supreme Court has held that “whether the

      exclusionary sanction is appropriately imposed in a particular case is an issue

      separate from the question whether the Fourth Amendment rights of the party

      seeking to invoke the rule were violated by police conduct.” Hudson v.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-229 | November 10, 2016   Page 4 of 8
       Michigan, 547 U.S. 586, 591-92 (2006). The exclusionary rule is implicated only

       if the challenged evidence was obtained as a result of the Fourth Amendment

       violation, that is, if the evidence would not have been obtained “but for” the

       violation. Id. at 592. Here, it cannot be said that Officer Faulk would not have

       discovered and seized the drugs “but for” her illegal conduct. Handcuffing

       Turner did not lead Officer Faulk to the drugs. She could have just as easily

       looked through the window of the Toyota before she handcuffed Turner—in

       fact, before she talked to him or even approached him. In other words, the fact

       that Officer Faulk found the drugs while Turner was handcuffed does not mean

       that she found the drugs because he was handcuffed. The trial court did not err

       by refusing to exclude the drugs based on Officer Faulk’s illegal detention of

       Turner.

[10]   That is not the end of our inquiry, however. Apart from Officer Faulk’s

       handcuffing of Turner, exclusion of the drugs might be appropriate if her

       subsequent conduct—looking into the Toyota, opening the door, picking up the

       container, and removing the lid—separately violated the Fourth Amendment.

       Generally, police must have a warrant to conduct a search or seizure. See, e.g.,

       Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). Here, the police did not have a

       warrant to enter the car and seize the container. Therefore, we will find a

       Fourth Amendment violation unless the State can establish that an exception to

       the warrant requirement applies. See id.


[11]   The State asserts that the container was in open view, that the burn marks on

       the lid gave Officer Faulk probable cause to believe that the container was drug

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-229 | November 10, 2016   Page 5 of 8
       paraphernalia, and that this probable cause triggered the “automobile

       exception” to the warrant requirement. See, e.g., Thurman v. State, 602 N.E.2d

       548, 554 n.11 (Ind. Ct. App. 1992) (explaining that automobile exception

       allows warrantless seizure of contraband discovered in open view), trans. denied.

       Turner does not dispute that the container was in open view or that the

       automobile exception would apply if the criminal character of the container was

       apparent. Rather, he contends that the burn marks on the lid did not give rise

       to probable cause that the container had been used to consume illegal drugs.

       We disagree.

[12]   For purposes of the Fourth Amendment, probable cause exists when the facts

       available to the police officer “would warrant a person of reasonable caution in

       the belief that contraband or evidence of a crime is present.” Florida v. Harris,

       133 S. Ct. 1050, 1055 (2013). Officer Faulk testified that she had seen “more

       than a hundred” items like the container, Tr. p. 121, and that, given her training

       and experience, the two burn marks made it “immediately apparent” to her that

       the container had been used to ingest narcotics (one mark being an “inhalation

       point,” the other an “exhalation point”), id. at 41, 127. This testimony was

       more than sufficient to support a finding of probable cause to believe that the

       container was drug paraphernalia.

[13]   Turner has failed to persuade us that the trial court erred by rejecting his Fourth

       Amendment claim.




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                                     II. Article 1, Section 11
[14]   Turner also argues that even if the Fourth Amendment does not bar the

       admission of the drugs, Article 1, Section 11 of the Indiana Constitution does.

       Like the Fourth Amendment, Article 1, Section 11 provides, in part, that “[t]he

       right of the people to be secure in their persons, houses, papers, and effects,

       against unreasonable search or seizure, shall not be violated[.]” Turner

       correctly notes that notwithstanding the textual similarity between the two

       provisions, the Indiana Supreme Court has established an independent analysis

       for Article 1, Section 11 claims. See Litchfield v. State, 824 N.E.2d 356 (Ind.

       2005) (explaining that issue is whether search or seizure was “reasonable,”

       which turns on a balance of “1) the degree of concern, suspicion, or knowledge

       that a violation has occurred, 2) the degree of intrusion the method of the

       search or seizure imposes on the citizen’s ordinary activities, and 3) the extent

       of law enforcement needs”). We need not engage in that analysis, however.

       Turner’s argument under Article 1, Section 11 focuses entirely on Officer

       Faulk’s conduct before she walked to the Toyota and looked through the

       window. As discussed in relation to Turner’s Fourth Amendment claim, while

       it is undisputed that Officer Faulk acted illegally before she went to the car—

       specifically, by handcuffing Turner—her discovery and seizure of the drugs was

       independent of and untainted by that illegality. Turner does not separately

       contend that Officer Faulk violated Article 1, Section 11 by looking into the car,

       opening the door, picking up the container, or removing the lid. Therefore, we




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-229 | November 10, 2016   Page 7 of 8
       cannot say that the trial court erred by rejecting Turner’s claim under the

       Indiana Constitution.

[15]   Affirmed.

       Baker, J., and Najam, J., concur.




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