MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jun 24 2020, 8:19 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick McNeal,                                          June 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1780
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                      Magistrate
                                                         The Honorable Jennifer Harrison,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G20-1807-F3-22570



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020                Page 1 of 10
[1]   Derrick McNeal appeals his convictions for possession of a narcotic drug as a

      level 5 felony and possession of marijuana as a class B misdemeanor. He raises

      one issue which we restate as whether the trial court abused its discretion by

      admitting certain evidence. We affirm.


                                      Facts and Procedural History

[2]   McNeal was the subject of an arrest warrant with respect to a “level 5 cocaine

      case” and was also the suspect in two separate homicide investigations

      conducted by Indianapolis Metropolitan Police Detectives Erica Jones and

      Mark Howard. Transcript Volume II at 18. Detective Jones informed

      Indianapolis Metropolitan Police Detective Erik Forestal that the handgun used

      in the homicide she was investigating had not been recovered. She informed

      him that McNeal’s nephew was also a suspect and had been interviewed and

      released because there was not “enough evidence at that time to arrest him.”

      Id. at 7. Detective Jones also told him that she would like to apply for a search

      warrant for firearms and other evidence related to her homicide investigation if

      McNeal was located at a residence.


[3]   Detective Forestal received information that McNeal was at a residence on

      Kristen Court in Marion County, began conducting surveillance of the

      residence at around 8:00 p.m. on June 26, 2018, and observed McNeal exit the

      front door and sit on the front porch. Detective Forestal conducted surveillance

      for thirty to forty-five minutes, called detectives for assistance, waited until

      approximately five other officers or detectives arrived, and had an officer

      proceed to the back of the residence.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 2 of 10
[4]   Detective Forestal drove up to the house and exited his undercover vehicle

      while wearing a police vest with a badge, and McNeal ran back inside the house

      once he saw him and “veer[ed] to the left.” Id. at 8. Detective Forestal yelled

      at McNeal to stop, but he did not comply. Detective Forestal ran up to the

      front door but did not pursue McNeal into the residence. He ordered McNeal

      to exit the house, and McNeal complied in approximately thirty seconds to one

      minute and was taken into custody on the walkway in front of the house and

      handcuffed. Detective Forestal did not find any drugs, baggies, paraphernalia,

      or weapons on McNeal. Two females then exited the house leaving the door to

      the residence open.


[5]   Detective Forestal called Detective Howard, who told him that he was going to

      apply for a search warrant and requested Detective Forestal remain at the

      residence. Detective Forestal entered the residence with several other officers to

      make sure there were no threats present to the officers, and observed what he

      believed to be marijuana and either cocaine or heroin in a separate bag next to

      it on the couch in the front living room.


[6]   That same day, Detective Howard completed a search warrant affidavit, and a

      judge issued a search warrant for firearms and accessories, bullets, documents,

      DNA, fingerprints, cell phones, photographs, drugs, and drug paraphernalia.

      Indianapolis Metropolitan Police Detective Michael Condon collected the

      narcotics that were observed in plain view, but did not find any other narcotics,

      paraphernalia, ledgers, or guns.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 3 of 10
[7]   On July 12, 2018, the State charged McNeal with Count I, dealing in a narcotic

      drug as a level 3 felony, Count II, possession of a narcotic drug as a level 5

      felony, and Count III, possession of marijuana as a class B misdemeanor. On

      March 15, 2019, McNeal filed a motion to suppress evidence obtained in

      violation of the Fourth Amendment of the United States Constitution.


[8]   On April 9, 2019, the court held a hearing on McNeal’s motion. When asked

      to describe holding his position at the residence while awaiting the warrant,

      Detective Forestal answered: “It’s basically to secure the residence to make sure

      that there’s no people inside that are threats or that can destroy any evidence

      that might be seized during the search warrant.” Id. at 10. He indicated he

      entered the home to make sure there were no threats to the officers. He testified

      that one of the main concerns was that McNeal’s nephew, who was the possible

      other suspect in the homicide investigation, could be in the residence. During

      cross-examination McNeal’s counsel asked him: “And you didn’t have any

      information that Mr. McNeal would be with his nephew that day – on June

      26th, right?” Id. at 18. Detective Forestal answered: “The information

      Detective Jones provided me that they would likely be together.” Id. He also

      indicated the provided information showed that there was not enough evidence

      to arrest the nephew. At the end of the hearing, the court found that the

      protective sweep was reasonable. After some discussion regarding the search

      warrant, McNeal’s counsel indicated that she had a copy of the search warrant

      and mentioned “defense A.” Id. at 28. The court stated it needed to review the

      search warrant and continued the hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 4 of 10
[9]    On April 16, 2019, the court resumed the hearing, heard argument, and found

       that the protective sweep was valid and that probable cause existed for the

       issuance of the search warrant and denied the motion to suppress.


[10]   On June 11, 2019, the State alleged McNeal was an habitual offender. On June

       12, 2019, the court held a jury trial. The jury found McNeal guilty of Count II,

       possession of a narcotic drug, and Count III, possession of marijuana as a class

       B misdemeanor, and not guilty of Count I, dealing in a narcotic drug as a level

       3 felony. McNeal admitted the factual basis sufficient to enhance Count II to a

       level 5 felony. The State moved to dismiss the habitual offender enhancement,

       and the court granted the motion. The court sentenced McNeal to four years

       for Count II and 180 days for Count III and ordered the sentences to be served

       concurrently.


                                                    Discussion

[11]   Although McNeal originally challenged the admission of the evidence through

       a motion to suppress, he now challenges the admission of the evidence at trial.

       Thus, the issue is appropriately framed as whether the trial court abused its

       discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80

       (Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067

       (Ind. Ct. App. 2005).


[12]   We review the trial court’s ruling on the admission or exclusion of evidence for

       an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g

       denied. We reverse only where the decision is clearly against the logic and effect


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 5 of 10
       of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),

       reh’g denied. In reviewing the trial court’s ruling on the admissibility of evidence

       from an allegedly illegal search, an appellate court does not reweigh the

       evidence but defers to the trial court’s factual determinations unless clearly

       erroneous, views conflicting evidence most favorably to the ruling, and

       considers afresh any legal question of the constitutionality of a search or

       seizure. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). Even if the trial

       court’s decision was an abuse of discretion, we will not reverse if the admission

       constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

       1999), reh’g denied, trans. denied. “[T]he ultimate determination of the

       constitutionality of a search or seizure is a question of law that we consider de

       novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[13]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Id. If the

       foundational evidence at trial is not the same as that presented at the

       suppression hearing, the trial court must make its decision based upon trial

       evidence and may consider hearing evidence only if it does not conflict with

       trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).


[14]   McNeal argues that the initial search did not constitute a valid search incident

       to arrest or protective sweep, the police cannot obtain a warrant “after the fact

       to exploit an initial illegal warrantless entry and search,” and the admission of

       the evidence was not harmless. Appellant’s Brief at 16. The State argues that

       the drugs were found during a valid protective sweep and that, even if the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 6 of 10
       protective sweep was unreasonable, the drugs were still admissible under the

       inevitable discovery exception because the detectives would have applied for

       the search warrant even if the protective sweep did not occur.


[15]   The Fourth Amendment to the United States Constitution provides:


               The right of 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.


       U.S. CONST. amend. IV. “Though a ‘fluid concept,’ probable cause exists

       when the affidavit establishes ‘a fair probability that contraband or evidence of

       a crime will be found in a particular place.’” Heuring v. State, 140 N.E.3d 270,

       273 (Ind. 2020) (quoting Illinois v. Gates, 462 U.S. 213, 232, 238, 103 S. Ct. 2317

       (1983)). “Probable cause to issue a search warrant exists where the facts and

       circumstances would lead a reasonably prudent person to believe that a search

       would uncover evidence of a crime.” Meister v. State, 933 N.E.2d 875, 879 (Ind.

       2010). If the search is conducted without a warrant, the State bears the burden

       to show that one of the well-delineated exceptions to the warrant requirement

       applies. M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016).


[16]   The United States Supreme Court defined a protective sweep as “a quick and

       limited search of premises, incident to an arrest and conducted to protect the

       safety of police officers or others. It is narrowly confined to a cursory visual

       inspection of those places in which a person might be hiding.” Maryland v. Buie,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 7 of 10
       494 U.S. 325, 327, 110 S. Ct. 1093, 1094 (1990). As an incident to arrest

       officers may, “as a precautionary matter and without probable cause or

       reasonable suspicion, look in closets and other spaces immediately adjoining

       the place of arrest from which an attack could be immediately launched.” Id. at

       334, 110 S. Ct. at 1098. A search beyond those parameters is permissible only

       when there are “articulable facts which, taken together with the rational

       inferences from those facts, would warrant a reasonably prudent officer in

       believing that the area to be swept harbors an individual posing a danger to

       those on the arrest scene.” Id.


[17]   The record reveals that McNeal was arrested on the walkway directly in front of

       the house and the drugs were discovered in plain view in the front living room.

       The record contains a photograph of the aerial view of the residence and front

       walkway leading to the house where McNeal was apprehended, as well as

       photographs of the front living room which were taken from just inside the front

       door of the residence. Detective Forestal testified that the door to the residence

       remained open after the females exited and before the protective sweep began.

       Under these circumstances, we conclude that the State demonstrated that the

       front living room was a space immediately adjoining the place of arrest from

       which an attack could be immediately launched. We note that McNeal ran

       back inside the house once he saw Detective Forestal, veered to the left, and

       remained in the house for approximately thirty seconds to one minute.

       Detective Forestal knew that McNeal was a suspect in two separate homicide

       investigations, the handgun used in one of the homicides had not been


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 8 of 10
       recovered, McNeal’s nephew was also a suspect, and McNeal would likely be

       with his nephew. We cannot say that the trial court erred in concluding that the

       protective sweep was proper or in admitting the evidence.


[18]   Further, the drugs observed in plain view during the sweep did not constitute

       the sole basis upon which the probable cause affidavit in support of the search

       warrant relied, 1 and they would have been inevitably and lawfully discovered in

       the execution of the search warrant. Therefore, even if the protective sweep

       was improper, reversal is not warranted. “[T]he inevitable discovery exception

       to the exclusionary rule permits the introduction of evidence that eventually

       would have been located had there been no error.” Shultz v. State, 742 N.E.2d

       961, 965 (Ind. Ct. App. 2001) (quotations and citations omitted), reh’g denied,

       trans. denied. “Where a search warrant is based on both legally obtained

       information and information obtained in contravention to the Fourth

       Amendment, we will determine 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) (citing Davis v. State, 907 N.E.2d 1043, 1051-1052 (Ind. Ct. App.

       2009)), trans. denied. See Perez, 27 N.E.3d at 1153 (holding that, “excising from

       the probable cause affidavit the information learned from” an unconstitutional




       1
         The probable cause affidavit signed by Detective Howard indicated that victim Robert McNeal was last
       seen with McNeal and his nephew and that the victim and McNeal had a falling out and a fight; a vehicle
       matching the description of the vehicle observed at the murder scene and containing three of the same
       numbers on the license plate was registered to McNeal’s sister-in-law who stated that only she or McNeal
       had driven the vehicle in the prior two weeks; and the owner of the residence, McNeal’s niece, had advised
       that McNeal had been living with her there for the past week.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020                   Page 9 of 10
       canine sniff, the issuing magistrate still had sufficient information to make a

       practical, common-sense decision that, given all the circumstances set forth in

       the affidavit, there is a fair probability that evidence of a crime will be found in

       a particular place, and that despite the illegal search of the defendant’s front

       door in violation of the Fourth Amendment, there was enough untainted

       information in the probable cause affidavit to support the issuance of the search

       warrant); Shultz, 742 N.E.2d at 965 (holding that the illegal search for the VIN

       was of no consequence under Fourth Amendment jurisprudence, observing that

       the illegally obtained VIN was not the sole ground relied upon in the probable

       cause affidavit for the search warrant, and holding that police could have

       secured a warrant without the partial VIN and that the partial VIN and all the

       remaining evidence would have been inevitably and lawfully discovered in the

       execution of the search warrant).


[19]   For the foregoing reasons, we affirm McNeal’s convictions.


[20]   Affirmed.


       Najam, J., and Kirsch, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1780 | June 24, 2020   Page 10 of 10
