MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be                                Nov 17 2016, 8:47 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             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
Mark S. Lenyo                                           Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnnie Nettles,                                        November 17, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1603-CR-513
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jerome Frese,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        71D03-1412-MR-12
                                                        71D03-1207-FB-99



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016       Page 1 of 10
                                            Case Summary
[1]   Johnnie Nettles (“Nettles”) appeals his convictions for Murder, a felony, 1 and

      Robbery, as a Level 5 felony.2 He presents the sole issue of whether the trial

      court abused its discretion in admitting physical evidence. We affirm.



                                   Facts and Procedural History
[2]   On December 21, 2014, the owners of Chuck’s Tavern in South Bend, Indiana

      entered the premises and found their employee, twenty-five-year-old Angela

      Garza (“Garza”), murdered. She had suffered eighteen stab wounds and blunt

      force trauma. Approximately $1,500.00 was missing from the cash register and

      two safes. Garza’s vehicle was also missing.


[3]   Nettles soon came under suspicion, as he had been in contact with Garza

      during the prior evening and had arranged to meet her when she closed the bar.

      During the afternoon of December 21, Corporal David Ruiz of the Mishawaka

      Police Department (“Corporal Ruiz”) received a dispatch indicating that

      Nettles could be located at an apartment complex at 4500 Hickory Road in St.

      Joseph County. By that time, Corporal Ruiz had located Garza’s missing

      vehicle near 4508 Hickory Road.




      1
          Ind. Code § 35-42-1-1.
      2
       I.C. § 35-42-5-1. This appeal is consolidated with an appeal from a probation revocation order in 71D03-
      1207-FB-000099. However, Nettles presents no separate argument with regard to the probation revocation
      order.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016        Page 2 of 10
[4]   Corporal Ruiz and several other officers approached the first apartment unit of

      4500 Hickory Road. Before the officers “had the chance to knock,” a door

      opened and Nettles exited the apartment to approach a mailbox. (Tr. at 28.)

      The officers restrained Nettles and requested identification from him. Nettles

      stated that his identification card could be found inside a black coat hanging in

      a closet in the front room. He asked to be allowed to wear that coat and also

      requested his shoes.


[5]   Nettles was taken to the police station, where he gave a statement indicating

      that Garza’s keys and cellphone, as well as a knife, could be found in his

      apartment. Meanwhile, Lieutenant Anthony Bontrager (“Lieutenant

      Bontrager”) interviewed Nettle’s girlfriend, Diamond Marshall (“Marshall”),

      and determined that she had leased the apartment solely in her name. Marshall

      executed a form giving permission to search the apartment. A search yielded

      blood-stained currency, Garza’s cell phone and keys, a food benefits card that

      had belonged to Garza’s sister, and a broken knife later found to contain DNA

      consistent with Garza’s DNA profile.


[6]   Nettles was charged with Murder and Robbery. Prior to trial, he filed a motion

      to suppress. Nettles sought exclusion of the knife, keys, card, cell phone, and

      currency. After a hearing, the motion to suppress was denied. Nettles was tried




      Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016   Page 3 of 10
      by a jury and convicted as charged. He received consecutive sentences of sixty-

      five years for Murder and six years for Robbery.3 This appeal ensued.



                                  Discussion and Decision
[7]   Nettles contends that the trial court erred in denying his motion to suppress.

      However, “[d]irect review of the denial of a motion to suppress is only proper

      when the defendant files an interlocutory appeal.” Clark v. State, 994 N.E.2d

      252, 29 (Ind. 2013). We thus frame the issue as whether the trial court abused

      its discretion in admitting evidence. A trial court has broad discretion to rule

      on the admissibility of evidence, and we reverse only when admission is clearly

      against the logic and effect of the facts and circumstances and the error affects a

      party’s substantial rights. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

      However, when an appellant argues that the trial court admitted evidence that

      was obtained in an unconstitutional search or seizure, he or she raises a

      question of law that we review de novo. Id. at 40-41.


[8]   Nettles first alleges that the warrantless search was conducted in violation of the

      Fourth Amendment to the United States Constitution. “The Fourth

      Amendment protects persons from unreasonable search and seizure and this

      protection has been extended to the states through the Fourteenth




      3
       Nettles was on probation after having pled guilty to Burglary as a Class B felony in 2012. On February 22,
      2016, his probation was revoked. As a sanction, Nettles was ordered to serve the six-year sentence that had
      been suspended.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016         Page 4 of 10
       Amendment.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Warrantless

       searches and seizures conducted inside a home are presumptively unreasonable.

       Id. The State has the burden of proving that an exception to the warrant

       requirement existed at the time of the warrantless residential search. Id. One

       well-recognized exception to the warrant requirement is that of a voluntary and

       knowing consent to search. Id.


[9]    Nettles acknowledges that a consent search took place, but argues: “Although

       Diamond Marshall signed a consent to search form, the circumstances under

       which it was signed were not voluntary.” Appellant’s Brief at 21.


[10]   At the suppression hearing, Lieutenant Bontrager testified that he had obtained

       Marshall’s consent to search the apartment. According to Lieutenant

       Bontrager, he read an electronic version of a Pirtle4 form to Marshall. He

       further testified that Marshall was non-confrontational and appeared to

       understand the explanation of her Pirtle rights. Both Marshall and Lieutenant

       Bontrager electronically signed the form. At the conclusion of the suppression

       hearing evidence, the trial court sought to clarify that Nettles “accept[ed] that

       [Marshall] was not coerced.” (Tr. at 145.) Nettles agreed that coercion would

       not be argued.




       4
        In Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), our supreme court held that a person who is asked to
       give consent to search while in police custody is entitled to the presence and advice of counsel prior to
       making the decision whether to give such consent. The right may be waived, but the burden will be upon the
       State to show that such waiver was explicit. Id. at 29, 323 N.E.2d at 640.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016          Page 5 of 10
[11]   Thereafter, at trial, Nettles lodged a continuing objection “based upon the

       ruling on the motion to suppress.” (Tr. at 332-33.) Several times, upon the

       admission of testimonial or physical evidence, Nettles reminded the trial court

       of his continuing objection. However, he did not provide any specificity. For

       example, he once objected as follows: “Defendant would object to Exhibits 65

       through 86 for the reason that they are all depicting items of the search of the

       apartment.” (Tr. at 566.) To the extent that Nettles now claims Marshall’s

       consent was involuntary, he did not take this position at the suppression

       hearing or at trial.5 Moreover, while he now highlights the facts that he had

       been incapacitated by his arrest and Marshall was a single mother with a sick

       baby, he directs us to no testimony suggesting that any police officer engaged in

       coercive conduct directed toward Marshall. Nettles has not successfully

       challenged the voluntariness of Marshall’s consent.


[12]   Nettles next presents a Fourth Amendment argument related to recovery of the

       blood-stained currency in particular. He argues that, notwithstanding

       Marshall’s consent, she did not have authority to permit a search of his

       clothing. According to Nettles, his expectation of privacy was akin to that of

       the appellant in Krise, whose purse was searched without her consent after her

       roommate gave verbal consent to search the premises. 746 N.E.2d at 960.




       5
        “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, 14 N.E.2d at 40, n. 1. The trial court also is to consider any hearing
       evidence that is favorable to the defendant and not contradicted by trial evidence. Id.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016             Page 6 of 10
[13]   In Krise, our Indiana Supreme Court observed that a consent search is more

       restricted than a search based upon probable cause – in that authority to consent

       is required – and in an ultimately fact-sensitive situation, “the scope of a

       consent search is measured by objective reasonableness, the express object to be

       searched, and the suspect’s imposed limitations.” Id. at 966. The Court noted

       that “the type of container is of great importance,” looked at steps Krise had

       taken to protect her privacy,6 and concluded that Krise’s roommate had no

       actual authority to consent to the search of the purse and the State had failed to

       justify the search on the basis of apparent authority. Id. at 969-71. Reversing

       the denial of Krise’s motion to suppress, the Court explained its holding as

       follows:

                  Rather than considering a third-party’s authority to consent to
                  the general search of the home as “all encompassing” to the
                  search of every container found inside the home, we hold that the
                  inspection of closed containers that normally hold highly
                  personal items requires the consent of the owner or a third party
                  who has authority – actual or apparent – to give consent to the
                  search of the container itself.


       Id. at 969. Actual authority to consent to a search of a home may not be

       effective consent to a search of a closed object inside the home. Id. at 968.

       Thus, Nettles asks that we consider his coat pocket to be a type of “closed




       6
           Krise’s roommate, Charles Tungate, testified that he did not have access to Krise’s purse.


       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016          Page 7 of 10
       container” as discussed in Krise, and that we find Marshall lacked actual or

       apparent authority to consent to its search.


[14]   Marshall, the sole lessee of the apartment, advised officers that she and Nettles

       shared a closet and that Nettles also had a bag of clothing in the living room.

       The closet was a repository for some items Nettles kept there as he came and

       went, “staying most nights” with Marshall. (Tr. at 447.) Unlike the clothing in

       the living room, Nettles did not restrict access to the closeted items by

       depositing them in a bag. Rather, his clothing was commingled with Marshall’s

       clothing. The officers were not required to remove a covering, much less open

       a closure mechanism as is common with purses. Under the circumstances here,

       we are not persuaded that Nettles took steps such that he had an expectation of

       privacy in his coat pocket akin to that of one who deposits highly personal

       items in a closed purse. He has shown no Fourth Amendment violation.


[15]   Nettles also argues that the trial court admitted physical evidence obtained in

       violation of Article 1, Section 11 of our Indiana Constitution, providing:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.


       When determining whether a search comports with this state constitutional

       provision, “[i]nstead of focusing on the defendant’s reasonable expectation of

       privacy, we focus on the actions of the police officer, concluding that the search
       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016   Page 8 of 10
       is legitimate where it is reasonable given the totality of the circumstances.”

       Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). In the evaluation of

       reasonableness, we consider “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.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).


[16]   Here, police had a very strong suspicion that Nettles had murdered Garza. He

       had contacted her repeatedly the night before to arrange a meeting when she

       closed the bar. That meeting time corresponded to Garza’s last cash register

       transaction and last cell phone communication. Garza’s vehicle had been

       located at the apartment complex where Nettles was known to stay. The

       consent search did not present an additional intrusion into Nettles’ ordinary

       activities, as the search of Marshall’s premises did not take place until after

       Nettles had been arrested and removed from the premises. Finally, the extent

       of law enforcement needs was high, as the search involved the recovery of

       crucial items connecting Nettles to Garza’s murder. The keys, cell phone, and

       food benefits card had been in Garza’s possession; the broken knife and some of

       the currency had DNA consistent with that of Garza. The search was not

       unreasonable under the totality of the circumstances.



                                              Conclusion
[17]   We find no abuse of discretion in the admission of evidence.



       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016   Page 9 of 10
[18]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016   Page 10 of 10
