Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                          Mar 21 2014, 6:56 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CRAIG PERSINGER                                    GREGORY F. ZOELLER
Marion, Indiana                                    Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

HENRY D. HULL,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 27A02-1305-CR-471
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                          The Honorable Dana J, Kenworthy, Judge
                               Cause No. 27D02-1104-FD-92



                                         March 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Henry D. Hull was convicted after a jury trial of possession of marijuana1 as a Class

D felony and was sentenced to three years executed. He appeals, raising the following

restated issue for our review: whether the trial court committed fundamental error when it

admitted marijuana evidence at trial.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On April 22, 2011, Marion Police Department Officer David Bennett responded to

a dispatch of a disturbance at Dutch’s Bar in Marion, Indiana. When he arrived at the bar,

Officer Bennett encountered Hull, who identified himself to the officer as Kendall Hall.

Hull told Officer Bennett that he had been robbed of some money and a phone in the 600

block of North Washington Street. Officer Bennett took Hull to a liquor store in the 700

block, and along the way, Hull pointed out a house at 621 North Washington Street. Hull

changed his story several times, stating and then recanting that someone had pulled a gun

on him and that he had been hit.

       Other officers who responded to the disturbance spoke to the individuals at 621

North Washington Street and informed Officer Bennett that Hull’s real name was Henry

Hull and not Kendall Hall. When Officer Bennett asked Hull if Henry Hull was his real

name, Hull said yes. Upon learning that Hull had given a false name, Officer Bennett

called dispatch and asked them to run a warrant check. Officer Bennett was told by

dispatch that Hull had a warrant for his arrest; he then placed Hull into custody and




       1
           See Ind. Code § 35-48-4-11.

                                             2
transported him to the Grant County Jail. During the booking process, the jail staff

discovered a clear, plastic baggie, containing a brownish-green leafy substance, in one of

Hull’s shoes. The substance was later tested, and it was positive for marijuana and weighed

6.2 grams.

       The State charged Hull with Class A misdemeanor possession of marijuana and filed

a notice of intent to seek an enhanced penalty based upon a prior conviction. Prior to trial,

Hull orally moved to suppress the marijuana evidence based upon the issuance of an invalid

warrant for Hull’s arrest. Neither party presented evidence, but Hull argued that, because

he was arrested on a warrant that should not have been issued, the marijuana found in his

possession during the search incident to arrest should be suppressed.

       The trial court issued findings denying Hull’s motion to suppress and took judicial

notice of the procedures regarding warrants in Grant County. The trial court noted that, at

the time of Hull’s arrest on the warrant, the Grant County courts followed a long-standing

practice of requiring an arrest warrant to be included in the original packet of documents

in new case filings. Appellant’s App. at 30. The Prosecutor’s Office would put a sticky

note on the front of the packet that said “in jail,” although there was no evidence that a

sticky note was or was not put on Hull’s court documents. Id. The trial court found that,

“[w]ithin the past year, an error was committed, and a [d]efendant [was] arrested for

charges for which he had already been arrested,” which was likely Hull in this case. Id.

Following that error, Grant County courts’ procedure was changed so that arrest warrants

were only prepared in cases where defendants had not already been arrested. Id.



                                             3
       The trial court additionally took judicial notice of the CCS and pleadings in Hull’s

case in which the warrant had been issued. It noted that, although the probable cause

affidavit and the charging information indicated that Hull had already been arrested, the

CCS stated that the clerk of the court was to issue to the Grant County Sheriff a warrant

for Hull’s arrest. The trial court stated, “[i]t appears in this case that the Prosecutor’s Office

put the Court on clear notice in the pleadings that [Hull] had already been arrested; despite

that fact, the Court/Clerk issued the warrant anyway.” Id. at 31.

       Hull did not object to the admission of the marijuana at trial. A jury found Hull

guilty of Class A misdemeanor possession of marijuana. Hull then admitted that he had a

prior conviction, which elevated his conviction to a Class D felony. The trial court

sentenced him to three years executed. Hull now appeals.

                              DISCUSSION AND DECISION

       Generally, we review the trial court’s ruling on the admission of evidence for an

abuse of discretion. Whatley v. State, 908 N.E.2d 276, 280 (Ind. Ct. App. 2009) (citing

Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. However, as Hull

concedes, he did not object to the admission of the evidence at trial. Failure to object to

the admission of evidence at trial normally results in waiver and precludes appellate review

unless its admission constitutes fundamental error. Id. (citing Cutter v. State, 725 N.E.2d

401, 406 (Ind. 2000)). Therefore, to avoid waiver, Hull attempts to invoke the fundamental

error doctrine. The fundamental error doctrine is extremely narrow and requires an error

so prejudicial that a fair trial is impossible. Sasser v. State, 945 N.E.2d 201, 203 (Ind. Ct.

App. 2011), trans. denied. “To rise to the level of fundamental error, an error ‘must

                                                4
constitute a blatant violation of basic principles, the harm or potential for harm must be

substantial, and the resulting error must deny the defendant fundamental due process.’”

Whatley, 908 N.E.2d at 280 (quoting Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000)).

       Hull argues that the trial court committed fundamental error when it allowed the

marijuana evidence to be admitted into evidence at trial because it was discovered as a

result of an improper arrest. Because Hull had already been arrested and bonded out of jail

on the charge for which the warrant had been issued, he contends that he was illegally

arrested. He asserts that any search incident to that illegal arrest was in violation of the

Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana

Constitution, and it was fundamental error to admit such evidence.

       Our Supreme Court has held that “an error in ruling on a motion to exclude

improperly seized evidence is not per se fundamental error.” Brown v. State, 929 N.E.2d

204, 207 (Ind. 2010). The Court reasoned:

       [B]ecause improperly seized evidence is frequently highly relevant, its
       admission ordinarily does not cause us to question guilt. That is the case
       here. The only basis for questioning Brown’s conviction lies not in doubt as
       to whether Brown committed these crimes, but rather in a challenge to the
       integrity of the judicial process. We do not consider that admission of
       unlawfully seized evidence ipso facto requires reversal. Here, there is no
       claim of fabrication of evidence or willful malfeasance on the part of the
       investigating officers and no contention that the evidence is not what it
       appears to be. In short, the claimed error does not rise to the level of
       fundamental error.

Id. Here, Hull has not made any claim of fabricated evidence or willful misfeasance of

Officer Bennett and no contention that the evidence is not what it appears to be.




                                             5
Accordingly, Hull’s claimed error does not rise to the level of fundamental error under the

reasoning of Brown.

       In the present case, when Officer Bennett learned that Hull had given him a false

name, the officer contacted dispatch to run a warrant check and was advised that there was

a warrant issued for Hull’s arrest in a different case. Hull was taken into custody on the

basis of that warrant, and when he was booked into jail, the marijuana was discovered in

his shoe. However, it was later determined that Hull had already been arrested on the

warrant and bonded out of jail and that the warrant had been inadvertently reissued. Hull

conceded at trial that Officer Bennett acted in good faith when he arrested Hull because the

officer had no knowledge that the warrant was invalid. Tr. at 40.

       Under the Fourth Amendment, Hull concedes that, pursuant to the United States

Supreme Court’s opinion of Herring v. United States, 555 U.S. 135 (2009), his challenge

fails. In that case, one of the arresting officers encountered the defendant, who the officer

knew to be “no stranger to law enforcement,” and checked to see if there were any

outstanding warrants for the defendant’s arrest in his county or a neighboring county. Id.

at 137. The warrant clerk in the neighboring county advised the officer that the defendant

had an active warrant out of that county, and the defendant was arrested; during a search

incident to arrest, methamphetamine was found on the defendant’s person. Id. However,

there had been a mistake about the warrant, as it had been recalled five months earlier. Id.

at 137-38. The Supreme Court held that, although a Fourth Amendment violation did

occur, the evidence would not be excluded because the police conduct was not “sufficiently

deliberate that exclusion can meaningfully deter it” or “sufficiently culpable that such

                                             6
deterrence is worth the price paid by the justice system.” Id. at 144. The Court stated that

the exclusionary rule “was crafted to curb police rather than judicial misconduct” and was

improper when the error arises from “nonrecurring and attenuated negligence” and is “thus

far removed from the core concerns that led us to adopt the rule in the first place.” Id. at

142, 144. As Hull does not distinguish Herring from the present case and has made no

contention that Officer Bennett engaged in any sort of culpable conduct that should trigger

the exclusionary rule’s application, Hull’s argument under the Fourth Amendment fails.

       Under Article I, section 11 of the Indiana Constitution, to determine whether a

search violated the Indiana Constitution, our courts must evaluate the reasonableness of the

police conduct under the totality of the circumstances. Danner v. State, 931 N.E.2d 421,

431 (Ind. Ct. App. 2010), trans. denied. The Indiana Supreme Court has explained the

reasonableness evaluation as follows:

       [A]lthough we recognize there may well be other relevant considerations
       under the circumstances, we have explained reasonableness of a search or
       seizure as turning 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.

Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). The burden is on the State to show

that each relevant intrusion was reasonable in light of the totality of the circumstances.

Danner, 931 N.E.2d at 431 (citing State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004)).

       In the present case, after Officer Bennett found out that Hull lied to the officer about

his identity, the officer ran a warrant check and discovered that Hull had an arrest warrant.

Officers are permitted to rely upon information provided by dispatch and are not required


                                              7
to perform their own independent investigation into the validity of a warrant prior to relying

on the information and arresting an individual. See Kindred v. State, 524 N.E.2d 279, 292

(Ind. 1988) (“The police force being a unit wherein there is police-channel communication,

if an officer acts in good faith reliance upon such information, the arrest will be deemed to

have been based on probable cause so long as sufficient knowledge to establish probable

cause exists within the organization.”). Therefore, the degree of concern, suspicion, or

knowledge that a violation has occurred was very strong in the present case. The degree

of intrusion, Hull’s arrest and subsequent incarceration, was also very strong here.

However, Hull’s arrest was a necessary and reasonable intrusion considering the extent of

law enforcement needs and government interests at stake. See Shotts v. State, 925 N.E.2d

719, 727 (Ind. 2010) (finding that based on information from an Alabama officer and an

NCIC entry Indiana officers reasonably believed there was probable cause that defendant

had committed the crime and that he was armed and at large in Indiana). Under the totality

of the circumstances, Officer Bennett’s conduct was reasonable and not a violation of the

Indiana Constitution.

       We disagree with Hull’s claim that Shotts is distinguishable from the present case.

In Shotts, when the defendant was arrested based on a warrant issued in Alabama, a weapon

was found in his possession, and he was charged with a violation of Indiana’s gun laws.

Id. at 722. The defendant challenged his arrest and discovery of the evidence based on a

claim that the Alabama warrant was not supported by probable cause. Id. Our Supreme

Court considered whether the evidence in the Indiana case must be suppressed if the

Alabama warrant was defective and concluded it did not under both the Fourth Amendment

                                              8
and the Indiana Constitution. Id. at 724, 726, 727. Under the Fourth Amendment, the

Court concluded that the trial court correctly found that the officers acted in good faith

reliance on a warrant they reasonably presumed to be valid. Id. at 724-25. Pursuant to the

Indiana Constitution, the Court found that, under the totality of the circumstances, the

officers’ actions were reasonable considering the governmental interests and the steps they

took in investigating and arresting the defendant. Id. at 727.

       The same outcome should follow in the present case. Based upon the information

received from dispatch, Officer Bennett reasonably presumed that the warrant for Hull was

valid, and his conduct in investigating and arresting Hull were reasonable under the totality

of the circumstances. Hull’s claim under Article I, section 11 of the Indiana Constitution

fails. We conclude that the trial court did not commit fundamental error when it admitted

the evidence discovered during the search incident to Hull’s arrest.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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