                                                                           FILED
                                                                     Jul 06 2020, 8:51 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Marietto V. Massillamany                                    Curtis T. Hill, Jr.
Erica Guernsey                                              Attorney General of Indiana
Massillamany Jeter & Carson LLP                             Megan M. Smith
Fishers, Indiana                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Robert Shorter,                                             July 6, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-2904
        v.                                                  Appeal from the Madison Circuit
                                                            Court
State of Indiana,                                           The Honorable David A. Happe,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            48C04-1807-F2-1909



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                             Page 1 of 27
[1]   Robert Shorter appeals his convictions for Level 2 Felony Dealing in

      Methamphetamine,1 Level 3 Felony Dealing in a Narcotic Drug,2 Level 3

      Felony Conspiracy to Commit Dealing in a Narcotic Drug, 3 and Level 3 Felony

      Aiding, Inducing, or Causing Dealing in Methamphetamine.4 He argues that

      (1) the trial court erred in its decision to admit certain evidence, thereby

      violating both the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution, and (2) the evidence was

      insufficient to support the conviction. Finding no error and that the evidence

      was sufficient, we affirm.


                                                       Facts
[2]   In June 2018, the Anderson Police Department received an anonymous

      complaint that Shorter and Lewis Martin had traveled from Detroit to

      Anderson to sell drugs. On July 18, 2018, a confidential informant for the

      Anderson Police Department contacted Shorter to purchase methamphetamine.

      Shorter at first agreed to sell the informant methamphetamine, but later

      informed her that he could only sell her heroin and told her to contact Martin if

      she wanted methamphetamine. Shorter gave the informant Martin’s contact

      information and put her in touch with Martin so she could arrange a purchase




      1
          Ind. Code § 35-48-4-1.1(a)(2).
      2
          I.C. § 35-48-4-1(a)(2).
      3
          Ind. Code § 35-41-5-2.
      4
          I.C. § 35-41-2-4.


      Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020           Page 2 of 27
      of methamphetamine from him. Later that same day, per Martin and the

      informant’s arrangement, the informant met Martin at the predetermined

      location and gave him $200 in exchange for seven grams of methamphetamine.


[3]   The same day, after this first transaction, the informant contacted Shorter again

      requesting to purchase heroin. Shorter agreed to sell seven grams and gave the

      informant a residential address where she would meet him to purchase the

      heroin. The informant went to the address and met up with Shorter; the two

      went into the kitchen, where Shorter removed a package of drugs from a

      cabinet, weighed out the seven grams he had agreed to sell, and then exchanged

      the heroin for money from the informant. Following the exchange, Shorter

      “made [the informant] do the heroin” that was left sitting on the table, and

      though she tried to “wipe[] it off the table without him knowin’,” she did end

      up “gettin’ some in [her] nose.” Tr. Vol. III p. 42-43. As a result, after the buy,

      officers immediately transported the informant to be medically examined.


[4]   On July 23, 2018, Shorter called the informant asking for help “to get him out

      of town.” Id. at 45. He told her he “was scared and paranoid” and that he

      “knew everybody was looking for him because . . . all [his] locations had . . .

      been hit,” and he wanted “someone he could trust” to help him leave town. Id.

      Shorter disclosed his location, which the informant then provided to officers.

      When officers arrived at the location, the front door was open and they could

      observe Shorter, who was still wearing the same clothing he wore when he sold

      heroin to the informant, sitting on a couch inside. The officers surveilled and

      observed him for about twenty to thirty minutes before Shorter exited the

      Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020           Page 3 of 27
      residence, walked a few feet toward a detached garage while “looking very

      intently at the ground,” and eventually stopped and bent over a few feet away

      from the garage, in a manner “very similar to someone who was bent over . . .

      tying their shoes but you just couldn’t see [his] hands.” Id. at 114-15. Shorter

      then stood up and walked back into the residence.


[5]   Officers on the scene continued observing the residence for another fifteen

      minutes or so until additional uniformed officers arrived; during that time,

      nobody else was observed entering or exiting the residence. Once the additional

      officers arrived, officers approached the residence and instructed Shorter to put

      his hands up, at which point Shorter complied and stood up, and “threw a large

      amount of money up in the air” that had been in his hands. Id. at 10. Officers

      then arrested Shorter without incident.5


[6]   Holly Brewer, the primary resident of the home at which officers apprehended

      Shorter, consented to a search of the residence. A K-9 unit conducted a sweep

      of the exterior of the residence and the K-9 alerted at a spot outside the

      detached garage, around the place where officers had observed Shorter bent

      over. Officers noticed that a rock or stepping stone where the K-9 alerted

      “wasn’t in the ground like the rest of em’” and turned it over, discovering




      5
        It is not entirely clear from the record whether Shorter and the police officers were inside or outside of the
      residence during his arrest, though an officer testified that just prior to the arrest, as the officers approached
      the door, they “had a visual contact [with Shorter] . . . cause the door was wide open.” Tr. Vol. III p. 10.
      Once Shorter saw the officers approaching, he threw up the money that was in his hands and followed
      officers’ orders to be taken into custody. To err on the side of protecting Shorter’s constitutional rights, we
      will assume that the arrest took place inside the home.

      Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                       Page 4 of 27
      underneath it a sock containing a bag of methamphetamine and a bag of a

      mixture of heroin and diphenhydramine. Id. at 88. A search inside the residence

      produced a digital scale with white residue on it and baggies on the table where

      Shorter had been sitting.


[7]   Officers had been unable to obtain a warrant for Shorter’s arrest after the

      controlled heroin buy because they had no personal identifiers for Shorter

      necessary for obtaining a warrant.6 Officers nonetheless believed they had

      probable cause to arrest Shorter based on the controlled buy. In an interview

      with officers, Shorter provided a false name and identification and made several

      incriminating statements. See id. at 216-28. After being told that the

      interviewing detective was working narcotics, Shorter admitted that he knew

      Martin, knew where Martin was located, and that Martin “brought [him] down

      here” and “made [him] work.” Id. at 217. The detective told Shorter he would

      be charged with dealing heroin and that officers had purchased heroin from

      him, to which Shorter merely responded “[s]h*t.” Id. at 222. Shorter never

      denied selling the drugs, and instead told the detective that he “didn’t deal[] to

      you man” and “you don’t look like nobody I sellin’ that to.” Id. at 222, 228.


[8]   On July 25, 2018, the State charged Shorter with one count of Level 2 felony

      dealing in methamphetamine, two counts of Level 3 felony dealing in a narcotic

      drug, and one count of Level 6 felony identity deception. On October 20, 2018,




      6
          At that point, officers had known Shorter only by various street names, not his legal name.


      Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                  Page 5 of 27
      the State filed an amended charging information alleging that Shorter was an

      habitual offender. On January 29, 2019, the State filed a motion to amend the

      charging information, which the trial court granted, that amended one count of

      dealing in a narcotic drug to Level 3 felony conspiracy to commit dealing in a

      narcotic drug and added a charge of Level 3 felony aiding, inducing, or causing

      dealing in methamphetamine. On September 16, 2019, the State moved to

      dismiss the identity deception charge, which the trial court granted.


[9]   A jury trial was held September 16 and 18, 2019. Shorter filed a motion to

      suppress certain statements and evidence surrounding his arrest, and the trial

      court denied the motion. At the conclusion of the trial, outside the presence of

      the jury, the State chose to not proceed with the habitual offender

      enhancement. The jury found Shorter guilty of all other remaining charges:

      Level 2 felony dealing in methamphetamine, Level 3 dealing in a narcotic drug,

      Level 3 felony conspiracy to commit dealing in a narcotic drug, and Level 3

      felony aiding, inducing, or causing dealing in methamphetamine. On

      November 12, 2019, the trial court sentenced Shorter to twenty-three years for

      dealing in methamphetamine and ten years each for the three Level 3 felony

      convictions, all to run concurrently, for an aggregate sentence of twenty-three

      years in the Department of Correction. Shorter now appeals.




      Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020        Page 6 of 27
                                      Discussion and Decision
                                     I. Admission of Evidence
[10]   Shorter’s first argument on appeal is that the trial court erred when it denied his

       motion to suppress and admitted evidence obtained as a result of his

       warrantless arrest and the warrantless search of Brewer’s home, thereby

       violating both the Fourth Amendment to the U.S. Constitution and Article 1,

       Section 11 of the Indiana Constitution.


[11]   Because Shorter is appealing the denial of the motion to suppress after a

       completed trial, the appeal is best framed as one challenging the trial court’s

       admission of evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013).

       Admission or exclusion of evidence is within the trial court’s sound discretion

       and is given great deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind.

       2015). We will reverse a trial court’s ruling on the admissibility of evidence only

       if the decision is clearly against the logic and effect of the facts and

       circumstances or if the trial court has misinterpreted the law. Id. When a

       challenge to a trial court’s ruling on the admissibility of evidence turns on an

       alleged constitutional violation, as it does here, the issue raises a question of

       law and our review is de novo. E.g., Pinner v. State, 74 N.E.3d 226, 229 (Ind.

       2017).


                                         A. Fourth Amendment
[12]   With regards to the Fourth Amendment, Shorter argues that the warrantless

       arrest and search of the home were unconstitutional and that certain evidence

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020           Page 7 of 27
       obtained from the arrest and search should have been suppressed. More

       specifically, Shorter contends that law enforcement violated Shorter’s

       reasonable expectation of privacy guaranteed by the Fourth Amendment “when

       they entered [Shorter’s] temporary home, absent exigent circumstances, and

       without a warrant to search and seize him.” Appellant’s Br. p. 12. As a result,

       he claims, “statements Shorter made at the police station following his arrest

       and the drugs found in Brewer’s yard under a rock” were improperly admitted

       as evidence by the trial court. Appellant’s Reply Br. p. 5.7


[13]   The Fourth Amendment to the U.S. Constitution provides, in relevant 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; and no

       warrant 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.” While in most cases, probable cause to believe the person being

       arrested committed a felony is sufficient to support a warrantless arrest,

       “[p]robable cause alone is insufficient to justify a warrantless arrest of a person

       in his home.” Snellgrove v. State, 569 N.E.2d 337, 340 (Ind. 1991). Instead, there

       must also be exigent circumstances present, which are traditionally found where




       7
         As an initial matter, the warrantless search of Brewer’s home was constitutional because Brewer, the owner,
       consented to the search. Before obtaining her consent for the search, officers reviewed her rights under
       Miranda v. Arizona, 384 U.S. 436 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). Importantly,
       it was this search, not Shorter’s warrantless arrest or a search conducted incident to that arrest, that resulted
       in the discovery of the methamphetamine and heroin. Therefore, regardless of the circumstances surrounding
       Shorter’s warrantless arrest, the warrantless search of the home was supported by valid consent, meaning that
       the drugs discovered during that search were properly seized by officers and properly admitted as evidence.

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                    Page 8 of 27
       “1) a suspect is fleeing or likely to take flight in order to avoid arrest; 2)

       incriminating evidence is in jeopardy of being destroyed or removed unless an

       immediate arrest is made; and 3) in cases that involve hot pursuit or movable

       vehicles.” Id.


[14]   With regards to the warrantless arrest, ample exigent circumstances justifying

       the arrest were present. Shorter had contacted the confidential informant

       seeking help “to get him out of town” and told the informant that “he knew

       everybody was looking for him.” Tr. Vol. III p. 45. Furthermore, officers knew

       that Shorter had come from Michigan to sell drugs and had few ties to the local

       community. See, e.g., Myers v. State, 454 N.E.2d 861, 864 (Ind. 1983) (finding

       exigent circumstances existed and that defendant was likely to flee the state

       before an arrest warrant could be issued where defendant’s truck had an out-of-

       state plate, he provided an out-of-state address at his hotel, he had “little or no

       ties in Indiana,” and he had committed other criminal offenses in other states).


[15]   Additionally, officers had audio recordings of Shorter arranging drug purchases

       with the informant and video footage of him selling heroin to the informant,

       and they were able to identify him on the day of his arrest based on this

       information. Officers were unable to procure an arrest warrant only because

       they did not know the required personal identifying information (i.e., his real

       name, as opposed to various street names). Where “exigent circumstances

       [make] the procuring of a warrant impracticable” and probable cause otherwise

       exists, a warrantless arrest is reasonable. Banks v. State, 265 Ind. 71, 77-78, 351

       N.E.2d 4, 9 (1976) (finding warrantless arrest was lawful where “[p]olice . . .

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                 Page 9 of 27
       had information from two informants, one of whom was an eyewitness, [upon]

       which their arrest . . . was based”).8


[16]   Lastly, we also note that the door to the home was “wide open with no screen”9

       and Shorter was sitting on a couch located directly in front of the open door,

       such that Shorter was plainly visible and identifiable from lawful vantage

       points, including from a vehicle as officers first drove by the house. Tr. Vol. III

       p. 142, 224. These circumstances certainly reduced the reasonable expectation

       of privacy Shorter had inside the home in the first place. See, e.g., Shane v. State,

       615 N.E.2d 425, 428 (Ind. 1993) (holding that defendant had no reasonable

       expectation of privacy in a basement area where door to the basement was off

       its hinge and was accessible via a common stairwell); Sayre v. State, 471 N.E.2d

       708, 713 (Ind. Ct. App. 1984) (“[D]efendants did not display a reasonable

       expectation of privacy by leaving open the curtains on the front window, which

       is only a few feet from the front door.”); see also Cox, 696 N.E.2d at 857 (“[I]f




       8
         Shorter compares the facts surrounding his case to those in Kirk v. Louisiana, 536 U.S. 635 (2002), to support
       his argument that despite the presence of probable cause, there are no exigent circumstances present that
       could have justified his warrantless arrest and the admission of any evidence obtained thereafter. In Kirk, the
       police had probable cause that a drug deal had taken place in the defendant’s apartment and arrested the
       defendant there without a warrant. The United States Supreme Court reversed the appellate court’s judgment
       that the warrantless arrest was proper because there was no finding below of exigent circumstances in
       addition to probable cause. But Kirk makes no finding on whether exigent circumstances actually existed in
       that case; in fact, the opinion clearly states that it “express[es] no opinion on that question,” and instead
       holds merely that the lower court erred by holding that exigent circumstances were not required to justify a
       warrantless arrest of an apartment home. Id. at 638.
       9
         The presence of a closed screen door, despite an otherwise open doorway, has been noted as a key
       distinction in whether warrantless entry of a home in “threshold arrests” is constitutional. See, e.g., Cox v.
       State, 696 N.E.2d 853, 857 (Ind. 1998) (finding that “where an intervening screen or storm door remains
       closed” when a suspect is in the threshold of the home, the integrity of the physical boundaries of the home
       are nonetheless preserved, along with the ability to exclude others).

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                  Page 10 of 27
       police spot the suspect and identify themselves when the suspect is in view, they

       may pursue her into the home to complete the arrest.”); Boggs v. State, 928

       N.E.2d 855, 863 (Ind. Ct. App. 2010) (“A man’s home is, for most purposes, a

       place where he expects privacy, but objects, activities, or statements that he

       exposes to the plain view of outsiders are not protected because no intention to

       keep them to himself has been exhibited.”).


[17]   In sum, we find that the warrantless arrest of Shorter was supported by probable

       cause and exigent circumstances, and that the warrantless search that produced

       the heroin and methamphetamine introduced as evidence was lawful. Given the

       particular facts of this case, it would have been advisable and best practice for

       officers to at least attempt to obtain an electronic warrant prior to the arrest, but

       because there were sufficient exigent circumstances consistent with those found

       in cases like Myers and Banks, a warrant was not required. As such, no Fourth

       Amendment violation occurred, and the trial court properly admitted any

       evidence obtained as a result of the arrest or the search of the home.10




       10
          Shorter makes an additional argument that the challenged evidence admitted at trial—Shorter’s statements
       to police and the drugs found at Brewer’s residence—were not sufficiently attenuated from the alleged police
       misconduct (i.e., the warrantless search and seizure) and therefore were required to be suppressed. See, e.g.,
       Joseph v. State, 975 N.E.2d 420, 426-30 (finding, under the attenuation doctrine, that defendant’s statements
       to officers after an unconstitutional search of his apartment were not sufficiently attenuated to be admissible
       at trial). But for the attenuation doctrine to apply, there must first be some illegal police conduct. See id. at
       426 Because we find that no police misconduct occurred and that the warrantless search and seizure was
       constitutional, we decline to address the attenuation argument in more depth.



       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                   Page 11 of 27
                                        B. Article 1, Section 11
[18]   Next, we must consider whether the warrantless arrest violated the Indiana

       Constitution.11 Under Article 1, Section 11 of the Indiana Constitution, the

       legality of a seizure “turns on an evaluation of the reasonableness of the police

       conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d

       356, 359 (Ind. 2005). Whether a seizure is reasonable focuses on the actions of

       the officer, rather than on the defendant’s reasonable expectation of privacy,

       and “turn[s] 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.” Id.


[19]   First, we recognize the particularly high degree of intrusion here: “Indeed, there

       are few intrusions more severe than an arrest.” Govan v. State, 116 N.E.3d 1165,

       1175 (Ind. Ct. App. 2019), trans. denied. But because we find that both the

       degree of suspicion and extent of law enforcement needs were also particularly

       high, we nonetheless conclude that the balance of Litchfield factors shows that

       the warrantless arrest of Shorter was reasonable under the Indiana Constitution.


[20]   Regarding the degree of concern, suspicion, or knowledge of a violation, we

       look at “the reasonableness of the officers’ assumptions, suspicions, or beliefs




       11
         As under the United States Constitution, a homeowner’s consent to the search of her property renders the
       search constitutional. E.g., Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). Therefore, we need not consider
       Shorter’s arguments related to the search of the residence.

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                 Page 12 of 27
       based on the information available to them at the time.” Duran v. State, 930

       N.E.2d 10, 18 (Ind. 2010). Shorter admits that “[h]ere, the degree of concern

       and knowledge that a violation had occurred was high.” Appellant’s Br. p. 9-10.

       Officers had successfully conducted two controlled buys from Shorter and

       Martin, corroborating the original anonymous tip that the two were in town

       from Michigan to sell drugs, and had audio and video recordings of Shorter of

       his interactions with a reliable confidential informant. See Herron v. State, 991

       N.E.2d 165, 171 (Ind. Ct. App. 2013) (finding warrantless search and seizure

       was reasonable under the Indiana Constitution where officers and a

       confidential informant conducted two controlled drug purchases that

       corroborated an anonymous tip and officers saw “what appeared to be the buy

       money” in plain view in defendant’s car).


[21]   Lastly, the extent of law enforcement needs was high here given Shorter’s

       indication that he intended to flee. Shorter’s statements to the informant about

       needing to get out of town, combined with officers’ knowledge that Shorter was

       from Michigan and dealing large quantities of drugs, indicated that there was a

       high need to secure Shorter as soon as possible before he left the area. Shorter

       attempts to draw parallels between the facts of his case and those in State v.

       Foster, 950 N.E.2d 760 (Ind. Ct. App. 2011), where we held that a warrantless

       arrest was unreasonable in violation of Article 1, Section 11 in part because of

       the lack of law enforcement needs. In Foster, however, officers did not arrest the

       defendant until twenty-one days after the controlled drug buy, during which

       time the defendant stayed living in his own apartment. Here, only five days had


       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020          Page 13 of 27
       passed between the last controlled buy and the date of Shorter’s arrest, he was

       not staying in his own permanent home, and officers had received information

       via the confidential informant that Shorter had expressed interest in leaving the

       state soon. Unlike in Foster, where “[t]here was ample time and opportunity for

       the officers to obtain an arrest warrant,” the officers here needed to act quickly

       and had a high need for conducting the warrantless arrest in light of the facts

       and circumstances. Id. at 762.


[22]   As such, we find that a balance of the three Litchfield factors support a

       conclusion that the warrantless arrest of Shorter was reasonable under Article 1,

       Section 11 of the Indiana Constitution, and that the trial court did not err in

       admitting evidence of Shorter’s statements to officers following his arrest.


                                II. Sufficiency of the Evidence
[23]   Shorter next argues that, regardless of the admissibility of the challenged

       evidence, the evidence was insufficient to support his convictions. In reviewing

       the sufficiency of the evidence to support a conviction, we must consider only

       the probative evidence and the reasonable inferences supporting the verdict, and

       we will neither assess witness credibility nor reweigh the evidence. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable

       factfinder could find the elements of the crime proved beyond a reasonable

       doubt. Id.




       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020            Page 14 of 27
                                               Dealing Convictions

[24]   To convict Shorter of dealing in methamphetamine, the State was required to

       prove that on July 23, 2018, Shorter possessed pure or adulterated

       methamphetamine with the intent to deliver it or to finance the delivery of it.

       I.C. § 35-48-4-1.1(a)(2). Similarly, to convict him of dealing in a narcotic drug,

       the State was required to prove that on July 23, 2018, Shorter possessed pure or

       adulterated heroin with the intent to deliver it or to finance the delivery of it.

       I.C. § 35-48-4-1(a)(2).


[25]   Shorter argues that the State failed to provide sufficient evidence that he had

       constructive possession over the methamphetamine and heroin found

       underneath the rock outside Brewer’s home and garage. Possession can be

       either actual or constructive. Actual possession occurs when a person has direct

       physical control over the contraband in question. Gray v. State, 957 N.E.2d 171,

       174 (Ind. 2011). When actual possession cannot be shown, such as in Shorter’s

       case, then the conviction may instead rest on proof of constructive possession.

       Id. “A person constructively possesses contraband when the person has (1) the

       capability to maintain dominion and control over the item; and (2) the intent to

       maintain dominion and control over it.” Id.


[26]   With regards to the “capability” element of constructive possession, the State

       must show “that the defendant is able to reduce the controlled substance to the

       defendant’s personal possession.” Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999).

       For the intent element, the State must demonstrate that the defendant had

       knowledge of the presence of the substance, and such knowledge “‘may be
       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020           Page 15 of 27
       inferred from either the exclusive dominion and control over the premise

       containing the contraband or, if the control is non-exclusive, evidence of

       additional circumstances pointing to the defendant’s knowledge of the presence

       of the contraband.’” Id. (quoting Taylor v. State, 482 N.E.2d 259, 261 (Ind.

       1985)). A non-exhaustive list of examples of possible “additional

       circumstances” showing knowledge may include:


               (1) a defendant’s incriminating statements; (2) a defendant’s
               attempting to leave or making furtive gestures; (3) the location of
               contraband like drugs in settings suggesting manufacturing; (4)
               the item’s proximity to the defendant; (5) the location of
               contraband within the defendant’s plain view; and (6) the
               mingling of contraband with other items the defendant owns.


       Gray, 957 N.E.2d at 175; see also Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)

       (“[T]he State is required to show that whatever factor or set of factors it relies

       upon in support of the intent prong of constructive possession . . . demonstrate

       the probability that the defendant was aware of the presence of the contraband

       and its illegal character.”).


[27]   Here, evidence shows that on July 23, 2018, Shorter was observed exiting

       Brewer’s home, walking over to the spot where the methamphetamine and

       heroin were later found, standing bent over with his hands reaching near the

       ground and “looking very intently at the ground,” tr. vol. III p. 115, and

       walking back inside the home. During the period officers were surveilling the

       home that day, no other person was observed near the spot where the drugs

       were discovered. Additionally, the heroin that was found was cut with the same

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020          Page 16 of 27
       cutting agent as the heroin the confidential informant purchased from Shorter a

       few days prior. This evidence sufficiently shows that Shorter had the capability

       of maintaining dominion and control over the drugs and that he was able to

       reduce them to his own personal possession.


[28]   Sufficient evidence also demonstrated Shorter’s intent to maintain dominion

       and control over the drugs. After officers received an anonymous tip that

       Shorter was in town to sell drugs, recordings were obtained via the confidential

       informant of Shorter arranging a methamphetamine purchase and personally

       selling heroin. Shorter had expressed a desire to “get . . . out of town” and

       stated it was “because . . . all [his] locations had . . . been hit.” Id. at 45; see also

       Lampkins v. State, 682 N.E.2d 698, 700 (Ind. 1997) (stating that flight is an

       additional circumstance that may support an inference of intent to maintain

       dominion and control over a controlled substance). During the search of

       Brewer’s home, officers also discovered a digital scale with white residue and

       several baggies sitting on the table where Shorter had been sitting when he was

       arrested. Once arrested, Shorter also made incriminating statements, telling

       officers, “you don’t look like nobody I sellin’ that to.” Id. at 228.


[29]   We also agree with the State that the facts of this case are comparable to those

       in Canfield v. State, 128 N.E.3d 563 (Ind. Ct. App. 2019). In Canfield, officers

       were dispatched to a Taco Bell after an anonymous caller reported a man,

       Canfield, in a Taco Bell uniform standing by a dumpster outside the restaurant

       who appeared to pull something from his waistband and that the item may have

       been an illegal substance. Once at the restaurant, officers observed Canfield

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020               Page 17 of 27
       stand to the side of the food preparation area and “dig[] around his waistband

       area,” and then squat down and stand back up “like he picked up something or

       had moved something.” Id. at 573. An officer then went to the spot where

       Canfield had just been observed and discovered a bag containing multiple

       smaller bags with a white crystal powdery substance, which later tested positive

       for methamphetamine. We ultimately found this evidence sufficient to

       demonstrate constructive possession over the methamphetamine. And given the

       similarity to the evidence in Shorter’s case—an anonymous tip about Shorter’s

       drug dealing, the officers’ observations of Shorter bending over the spot where

       the drugs were found and moving his hands around, plus evidence from the

       controlled buys and of Shorter’s intent to flee—we find no reason to conclude

       differently here.


                     Conspiracy and Aiding, Inducing, or Causing Convictions

[30]   Shorter also argues that his other two convictions centering on the controlled

       buys that took place on July 18, 2018—conspiracy to commit dealing in a

       narcotic drug and aiding, inducing, or causing dealing in methamphetamine—

       are supported by insufficient evidence.


[31]   To convict Shorter of conspiracy to commit dealing in a narcotic drug, the State

       was required to show that Shorter, with the intent to commit dealing in a

       narcotic drug, agreed with Martin to commit that felony. I.C. § 35-41-5-2(a).

       For aiding, inducing, or causing dealing in methamphetamine, the State was

       required to show that Shorter “knowingly or intentionally” aided, induced, or

       caused Martin to commit dealing in methamphetamine, even if Martin himself
       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020        Page 18 of 27
       was never prosecuted for or convicted of dealing in methamphetamine. I.C. §

       35-41-2-4.


[32]   Shorter claims that the State failed to present any evidence that Shorter had any

       possession of methamphetamines on July 18. Shorter also argues that the video

       and audio evidence shows the confidential informant buying the

       methamphetamine from another individual, but that “[t]here was no evidence

       that [Shorter] was present during the drug buy.” Appellant’s Br. p. 17.


[33]   But neither of these arguments are relevant to determining whether the evidence

       supports the convictions for conspiracy to commit dealing and aiding, inducing,

       or causing dealing. The evidence shows that Shorter initially agreed to sell the

       informant methamphetamine, but then told her he could only sell her heroin

       and that she should contact Martin if she wished to purchase

       methamphetamine. Shorter then provided Martin’s contact information, which

       the informant did not previously have, to facilitate the methamphetamine

       purchase. The informant then arranged and completed a controlled buy from

       Martin, who sold her seven grams of methamphetamine in exchange for $200.

       Shorter even made statements to officers that indicated he knew Martin and

       was working with him to sell the drugs, stating, among other things, that

       Martin “brought [him] down here” and “made [him] work.” Tr. Vol. III p. 217.


[34]   Based on this evidence, we find that a factfinder could reasonably infer that

       Shorter arranged the purchase of methamphetamine from Martin, that Martin

       and Shorter were working together to try and sell the methamphetamine and


       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020          Page 19 of 27
       heroin, and that this joint effort let to Martin actually selling the

       methamphetamine to the informant. As such, we find that the evidence was

       sufficient to support the convictions for conspiracy to commit dealing in a

       narcotic drug and aiding, inducing, or causing dealing in methamphetamine.

       To conclude otherwise would require us to reweigh the evidence, which we

       may not do.


[35]   The judgment of the trial court is affirmed.


       Bradford, C.J., concurs.
       Pyle, J., dissents with a separate opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020        Page 20 of 27
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       Robert Shorter,                                             Court of Appeals Case No.
                                                                   19A-CR-2904
       Appellant-Respondent,

               v.

       State of Indiana,
       Appellee-Petitioner.




       Pyle, Judge dissenting with opinion.


[36]   I respectfully disagree with my colleague’s conclusion that law enforcement

       could not have obtained an arrest warrant and that there were exigent

       circumstances justifying the warrantless entry into the residence.12 Implied in

       their conclusion is the belief that law enforcement could not have obtained an

       arrest warrant because they did not know Shorter’s name. In addition, my

       colleagues conclude that Shorter’s desire to leave town was an emergency




       12
         Because I would find a violation of the Fourth Amendment of our Federal Constitution, I do not address
       Shorter’s argument concerning Article 1, sec. 11 of the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                             Page 21 of 27
       permitting law enforcement officers to dispense with obtaining an arrest or

       search warrant to prevent the imminent destruction or removal of evidence. My

       colleagues seem to argue that the exigency was Shorter’s desire to leave the

       State of Indiana. To fit into a recognized exigent circumstance exception, I

       assume that law enforcement was concerned that Shorter would leave, taking

       with him evidence of his drug dealing, thereby destroying or removing it from

       Indiana. However, I disagree. Because an arrest warrant could have been

       obtained and the facts do not demonstrate the existence of an emergency or the

       imminent destruction or removal of evidence, I believe the evidence obtained

       on the date of Shorter’s arrest should not have been admitted at trial.


[37]   When law enforcement officers want to enter a structure to arrest an individual

       or conduct a search, they must obtain a warrant from a neutral and detached

       judicial authority. U.S. CONST. amend IV. “The purpose of this provision is to

       protect citizens from State intrusions into their homes.” Ware v. State, 782

       N.E.2d 478, 481 (Ind. Ct. App. 2003), reh’g denied. However, as my colleagues

       ably state, this well-established rule has exceptions. For example, a warrant is

       unnecessary if the “exigencies of the situation make the needs of law

       enforcement so compelling that a warrantless [entry] is objectively reasonable

       under the Fourth Amendment.” Missouri v. McNeely, 569 U.S. 141, 148-49

       (2013); See also Kentucky v. King, 563 U.S. 452 (2011). Such exigencies include

       when law enforcement officers: (1) need to provide emergency assistance to an

       occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47-48 (2009); (2) are

       pursuing a fleeing suspect, U.S. v. Santana, 427 U.S. 38, 42-43 (1976); (3) need


       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020          Page 22 of 27
       to enter a burning building to extinguish or investigate a fire, Michigan v. Tyler,

       436 U.S. 499, 509-10 (1978); or, as here, (4) to prevent the imminent destruction

       or removal of evidence, Id. at 509; Ware, 782 N.E.2d at 481. Whether police

       faced an emergency that justifies acting without a warrant requires us to look at

       the totality of the circumstances and assess “each case of alleged exigency based

       on its own facts and circumstances.” McNeely, 569 U.S. at 150 (internal

       quotation marks and citation omitted). The fact that drugs are involved does

       not alone amount to the existence of exigent circumstances justifying a

       warrantless entry to search or arrest. Ware, 782 N.E.2d at 481.


[38]   In this case, law enforcement officers were required to obtain an arrest warrant

       if they wanted to enter the residence to affect Shorter’s arrest; they claimed they

       could not because they did not know Shorter’s name. While it is true that a

       person’s name usually appears on an arrest warrant, it is not required. If a

       person’s name is unknown, Indiana law provides that an arrest warrant can

       designate a suspect by any “name or description by which he can be identified

       with reasonable certainty[.]” INDIANA CODE § 35-33-2-2(a)(2). Here, law

       enforcement officers observed Shorter over a long enough period that they

       could have described him with “reasonable certainty.” The officers watched

       Shorter during the July 18, 2018 drug buy. This is evident from Detective

       Lance Blossom’s trial testimony. He stated that while watching Shorter on July

       23, 2018, he “positively identified . . . Robert Shorter, sitting in that residence

       on a couch.” (Tr. Vol. III at 58). In addition, they could also have applied for




       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020           Page 23 of 27
       a search warrant to enter the residence to look for Shorter, but law enforcement

       officers chose not to.


[39]   Turning to whether exigent circumstances existed justifying the warrantless

       entry into the residence, we recognize the facts in this case are essential because

       we cannot “ignore the current and future technological developments in

       warrant procedures, . . . .” McNeely, 569 U.S. at 156. While advances in

       technology do not guarantee instant access to warrants, we must acknowledge

       that “technological developments that enable police officers to secure warrants

       more quickly, and do so without undermining the neutral magistrate judge’s

       essential role as a check on police discretion, are relevant to an assessment of

       exigency.” Id. at 155. The advent of the internet, improvements in telephonic

       and wireless communications, and broadband technology have transformed not

       only how Indiana courts resolve cases but have given law enforcement the

       ability to apply for search and arrest warrants with unprecedented speed. See

       F.R. Crim. P. 41(d)(3); IND. CODE § 35-33-5-8(a)(2).


[40]   When we consider the advent of technology over the last several decades, it

       becomes clear that the facts in this case do not establish the existence of an

       emergency demonstrating the imminent destruction or removal of evidence.

       There is no evidence that Shorter was taking any action demonstrating the

       imminent destruction or removal of evidence. It is true that Shorter wanted to

       leave town, but that was not going to be possible; Shorter was contained. He

       was under active surveillance, and, if he had attempted to leave, the officers had

       the entire law enforcement apparatus of the State to make a felony stop and

       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020         Page 24 of 27
       warrantless arrest of him once he left the property based upon the probable

       cause gained from the controlled buy on July 18, 2018. See IND. CODE § 35-33-

       7-1. In addition, the law enforcement officers of the Madison County Drug

       Task Force, a group skilled in the application for search warrants, watched

       Shorter for approximately thirty minutes while he was inside the residence

       (more than enough time to seek a telephonic search warrant); the date was July

       23, 2018, a Monday, at approximately 6:24 p.m. (a date and time when judicial

       officers are likely available). (App. Vol. II at 19). In addition, officers watched

       Shorter for an additional fifteen minutes as he walked outside the house, went

       to the garage area, and returned to the house (even more time). In addition,

       they waited even longer for additional officers to arrive before making a

       warrantless entry onto the curtilage and into the residence.


[41]   When additional officers arrived, they formed a “stack to go up to the front

       door.” (Tr. Vol. III at 60).13 When the officers approached the entrance to the

       residence, Shorter was so startled that he “threw U.S. currency everywhere.”

       (Tr. Vol. III at 60).14 At some point, officers entered the residence and Shorter

       was subsequently placed under arrest. (Tr. Vol. III at 67). The officers also

       took the owner of the residence, Holly Brewer (“Brewer”), into custody. (Tr.




       13
          A tactical stack is a single file formation used to enter a room or structure; officers entering the room
       alternate their direction of travel to cover all potential threats in the room. J. Pete Blair and M. Hunter
       Martaindale, Evaluating Police Tactics: An Empirical Assessment of Room Entry Techniques (2014).
       14
         I respectfully disagree with my colleagues suggestion that the open door and/or Shorter’s proximity to it
       decreases his expectation of privacy.



       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                     Page 25 of 27
       Vol. III at 122-23). While in police custody, the officers sought and received

       Brewer’s consent to search the residence.15


[42]   The officers undoubtedly sensed the need to act quickly, but this was not an

       emergency because there was adequate time for the officers to seek a telephonic

       search warrant. While my colleagues correctly concede that the best practice

       for these officers was to obtain a warrant, I submit that it was the

       constitutionally required practice. In 1990, our General Assembly enacted

       INDIANA CODE § 35-33-5-8(a)(2). This law allows police to avoid the lengthy

       process of submitting a written affidavit by calling a judicial officer, providing

       the required information under oath, and recording the conversation for entry

       into the record. This process should and could have been followed here.

       Again, at no time does the record establish that Shorter was doing anything

       related to the imminent destruction or removal of evidence. Police were also

       watching him for a lengthy period. If Shorter had attempted to leave, officers

       had the ability to stop him and make a warrantless felony arrest based upon the

       probable cause that existed as a result of the controlled buy. Again, the exigent

       circumstances exception requires an emergency showing that the destruction or

       removal of evidence is imminent. McNeely, 569 U.S. at 150; Tyler, 436 U.S. at




       15
          I do not believe Brewer’s consent was voluntary because it was not independent of the illegal entry. Galvin
       v. State, 582 N.E.2d 421 (Ind. Ct. App. 1991), trans. denied. The evidence shows that Officers had just made a
       warrantless entry into the residence, arrested Shorter, and then asked Brewer for consent to search. I do not
       see how there was sufficient time or other factors that could separate the consent from the illegal entry. To
       allow law enforcement to cure an unconstitutional entry by obtaining consent after the illegal entry would
       turn the protections afforded by the Fourth Amendment on its head.



       Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                Page 26 of 27
509. Here, my able colleagues are equating Shorter’s desire to leave town with

the imminent destruction or removal of evidence.16 The evidence does not

support this conclusion. As a result, I respectfully dissent and believe the

admitted evidence from the residence should have been excluded.17 The

convictions entered for counts III and V should be affirmed, but the convictions

for counts I and II should be reversed and the matter remanded for

resentencing.




16
   My colleagues cite to Myers v. State, 454 N.E.2d 861 (Ind. 1983) and Banks v. State, 265 Ind. 71, 351 N.E.2d
4 (1976) as supporting their finding of exigent circumstances. However, I believe these cases are inapplicable.
Both were handed down before the enactment of I.C. § 35-33-5-8(a)(2) (allowing for the use of telephonic
warrants) and before the Internet was developed (allowing for the use of electronic warrants). As I noted
above, the technological advancements in procuring warrants must be considered when assessing exigent
circumstances. See McNeely, 569 U.S. at 155.
17
   I believe that the drugs found by the K-9 in an area fifteen to twenty-five feet from the residence should
also have been suppressed. See Florida v. Jardines, 569 U.S. 1, 6 (2013) (holding that the curtilage—that “area
‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth
Amendment purposes’”) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). A person’s home
“‘protects and privileges all its branches and appurtenants.’” Id. at 6-7 (quoting California v. Ciraolo, 476 U.S.
207, 213 (1986)). Examples of appurtenances would include, but are not limited to, the property upon which
a detached garage is fixed, like the one in this case. New Orleans Pac. Ry. Co. v. Parker, 143 U.S. 42, 55 (1892)
(“The word ‘appurtenant,’ as ordinarily defined, is that which belongs to or is connected with something else,
to which it is subordinate or less worthy, and with which it passes as an incident,–such as an easement or
servitude to land; the tackle, apparel, rigging, and furniture of a ship; a right of common to a pasture; or a
barn, garden or orchard to a house or messuage.”). As a result, because the drugs found outside were
discovered in connection with the warrantless entry, they should be considered “‘fruit of the poisonous tree.’”
Segura v. United States, 468 U.S. 796, 804 (1984) (the exclusionary rule extends to indirect as well as direct
products of an unconstitutional search) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).

Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020                                    Page 27 of 27
