MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 10 2019, 6:16 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana                                    Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kent Taderro Bailey, Jr.,                                January 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2020
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1608-F4-4469



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019               Page 1 of 12
                                       Statement of the Case
[1]   Kent Bailey, Jr. appeals his convictions for unlawful possession of a firearm by

      a serious violent felon, as a Level 4 felony; resisting law enforcement, as a Class

      A misdemeanor; and possession of marijuana, as a Class B misdemeanor.

      Bailey raises two issues for our review, which we restate as follows:


              1.       Whether the State demonstrated probable cause to support
                       a search warrant for Bailey’s residence.


              2.       Whether the State presented sufficient evidence to show
                       that Bailey constructively possessed a firearm found inside
                       his residence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 1, 2016, Evansville Police Department (“EPD”) Officer Greg

      Hosterman submitted a probable cause affidavit to the trial court in support of a

      search warrant for a residence located at 779 Line Street in Evansville. BMV

      records showed that Bailey lived at that residence. In relevant part, Officer

      Hosterman stated as follows in his affidavit:


              Officers have received multiple tips and complaints regarding
              drug dealing activity at 779 Line St. Officer Doane with the EPD
              has been flagged down by neighbors and concerned citizens
              concerning the dealing activity. On today’s date, your affiant
              was parked in an alley conducting surveillance of 779 Line St.
              Your affiant observed a black 1997 Chevy pick[up] . . . arrive at



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 2 of 12
              the residence, stay for a short time, and then leave after a female
              got into the vehicle.


              Officers Doane and Meeks were in the area and observed the
              pickup truck after your affiant called off the description. Doane
              and Meeks observed that the pickup truck had no license plate
              light and failed to signal 200 feet prior to turning. Officers
              conducted a traffic stop of [the] vehicle and identified David
              Flaherty as the driver and [Krissy] Kirk as the passenger.
              Flaherty has a suspended driver’s license. Kirk advised that she
              actually lives at 779 Line St. although her license provides a
              different address. Kirk further advised that she lives on Line St.
              with her boyfriend Kent T. Bailey.


              Officers removed both occupants and prepared for an inventory
              search . . . . Without any prompting or questioning, Kirk advised
              Officer Thomas that the purse inside the vehicle that she was
              sitting next to was not her purse. Officer Thomas asked who it
              belonged to, and Kirk replied that only the wallet inside the purse
              belonged to her. Officer Thomas went to retrieve the wallet from
              the purse and found a syringe in the wallet. Kirk then stated that
              the wallet was not in fact hers. Kirk was handcuffed. Officer
              Sarah Gibson arrived on scene and conducted a search of Kirk.
              Gibson found a clear plastic baggie with a field weight of 14
              grams of white crystal substance that field tested positive for
              methamphetamine . . . . Once the baggie of meth was retrieved,
              Kirk blurted out without any prompting that the baggie was 13.5
              grams of meth.


      Appellant’s App. Vol. 2 at 41-42. Based on those representations, the trial court

      issued a search warrant for the residence at 779 Line Street.


[4]   Officer Hosterman immediately returned to the address with other officers to

      execute the warrant. Upon arriving, he observed two males standing on the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 3 of 12
      front porch. As he approached them in full uniform and ordered them to stop,

      “they ran inside the house.” Tr. at 21. Bailey was one of the two men.


[5]   After officers secured the perimeter, they entered the residence. EPD Officer

      William Shirley entered the residence and found it “dark on the inside.” Id. at

      29. However, Officer Shirley observed Bailey “open[ing] the door” to a laundry

      room that had “a very bright light” on the inside. Id. Bailey was inside that

      room and opening the door away from his body such that Officer Shirley could

      clearly see who was standing in the doorway. The third time Bailey opened the

      door to the room, Bailey and the other individual exited the room. The two

      men were promptly detained.


[6]   The officers then searched the residence. Inside the laundry room, officers

      observed a “service hole” about two feet up from the floor and to which a panel

      covering had been removed. Id. at 48. Inside that hole, officers discovered a

      loaded handgun. Under a mattress in a bedroom, officers discovered a loaded

      handgun magazine. The magazine found in the bedroom fit the handgun found

      in the laundry room. Bailey admitted that the bedroom in which the magazine

      was found was his bedroom, and officers also found in that bedroom a

      prescription bottle with Bailey’s name on it and the 779 Line Street address.

      Officers also discovered some marijuana inside the residence.


[7]   The State charged Bailey with unlawful possession of a firearm by a serious

      violent felon, as a Level 4 felony; resisting law enforcement, as a Class A

      misdemeanor; possession of marijuana, as a Class A misdemeanor; and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 4 of 12
      possession of paraphernalia, as a Class C misdemeanor. At his ensuing jury

      trial, Bailey objected to the evidence seized pursuant to the search warrant on

      the theory that the State lacked probable cause to obtain the warrant. The trial

      court overruled Bailey’s objection, and the jury found him guilty of unlawful

      possession of a firearm, as a Level 4 felony; resisting law enforcement, as a

      Class A misdemeanor; and possession of marijuana, as a Class B misdemeanor.

      The court entered its judgment of conviction and sentence accordingly. This

      appeal ensued.


                                     Discussion and Decision
                        Issue One: Probable Cause to Support the Warrant

[8]   On appeal, Bailey first asserts that the trial court erred when it admitted the

      evidence seized pursuant to the warrant because, according to Bailey, the

      warrant was not supported by probable cause. Bailey’s arguments that “police

      violated his Fourth Amendment and Article 1, Section 11 rights” raise

      “questions of law we review de novo.” Redfield v. State, 78 N.E.3d 1104, 1106

      (Ind. Ct. App. 2017) (quotation marks omitted), trans. denied. As the United

      States Supreme Court has explained with respect to the Fourth Amendment,

      “as a general matter determinations of . . . probable cause should be reviewed de

      novo on appeal,” while “findings of historical fact” underlying those legal

      determinations are reviewed “only for clear error.” Ornelas v. United States, 517

      U.S. 690, 699 (1996). The Indiana Supreme Court applies the same standard

      under Article 1, Section 11. E.g., McIlquham v. State, 10 N.E.3d 506, 511 (Ind.

      2014). In other words, we review whether probable cause exists “under a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 5 of 12
       standard ‘similar to other sufficiency issues’—whether, without reweighing the

       evidence, there is ‘substantial evidence of probative value that supports the trial

       court’s decision.’” Id. (quoting State v. Richardson, 927 N.E.2d 379, 385 (Ind.

       2010)).


[9]    As our Supreme Court has explained:


               The existence of probable cause is evaluated pursuant to the
               “totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S.
               213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).
               Probable cause exists “when ‘there is a fair probability that
               contraband or evidence of a crime will be found in a particular
               place.’” U.S. v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499,
               164 L. Ed. 2d 195 (2006) (quoting Gates, 462 U.S. at 238, 103 S.
               Ct. 2317). Significantly, “probable cause requires only a
               probability or substantial chance of criminal activity, not an
               actual showing of such activity.” Gates, 462 U.S. at 245 n.13,
               103 S. Ct. 2317. The trial court’s task is to determine whether
               “there is a fair probability that contraband or evidence of a crime
               will be found in a particular place[,]” id. at 238, 103 S. Ct. 2317,
               while a reviewing court must “ensure that the magistrate had a
               ‘substantial basis for . . . conclud[ing]’ that probable cause
               existed.” Id. at 238-39, 103 S. Ct. 2317 (quoting Jones v. US, 362
               U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)).


       Eaton v. State, 889 N.E.2d 297, 299 (Ind. 2008) (alterations and omissions

       original to Eaton).


[10]   Bailey asserts that the totality of the circumstances presented to the issuing

       court failed to establish probable cause of criminal activity at Bailey’s residence.

       In particular, Bailey contends that Officer Hosterman’s probable cause affidavit


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 6 of 12
       cited uncorroborated hearsay from “neighbors and concerned citizens” about

       the residence. See Appellant’s App. Vol. 2 at 41. Bailey also argues that “the

       brief visit” of Kirk to the residence was “insufficient to corroborate the general

       hearsay statements . . . .” Appellant’s Br. at 14. Accordingly, Bailey continues,

       the issuance of the warrant was contrary to his Fourth Amendment and Article

       1, Section 11 rights.1


[11]   We cannot agree. “[A] probable-cause affidavit ‘need not reflect the direct

       personal observations of the affiant’ but may instead rely on hearsay

       information.” McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018) (quoting Aguilar

       v. Texas, 378 U.S. 108, 114 (1964), abrogated on other grounds by Illinois v. Gates,

       462 U.S. 213 (1983)). However, there must be either “some reliable

       information establishing the credibility of the source” or “information that,

       under the totality of the circumstances, corroborates the hearsay.” Id.

       (quotation marks omitted).


[12]   Here, whether or not Officer Hosterman’s recitation of general concerns from

       the neighbors even mattered to the issuing court, the totality of the

       circumstances presented in his probable cause affidavit readily corroborated

       that hearsay. Officers were surveilling the residence based on the concerns of




       1
         Bailey asserts that his Article 1, Section 11 rights were violated based on the three factors discussed by our
       Supreme Court in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). However, we have held that those
       factors are not applicable to determine whether there was probable cause for the issuance of a search warrant.
       Mehring v. State, 884 N.E.2d 371, 381 n.4 (Ind. Ct. App. 2008), trans. denied. Instead, as under the Fourth
       Amendment, we evaluate whether the totality of the circumstances before the issuing court demonstrates
       probable cause. E.g., McGrath v. State, 95 N.E.3d 522, 527-30 (Ind. 2018).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019                   Page 7 of 12
       neighbors. In the course of that surveillance, they observed a vehicle arrive for

       a short period of time, after which Kirk entered the vehicle.


[13]   At an ensuing traffic stop, Kirk stated she lived at 779 Line Street even though

       her driver’s license showed a different home address. She stated that a purse

       “that she was sitting next to” was not hers, only to then change her assertion to

       be that the wallet inside the purse was hers although the purse itself was not,

       only to then once again change her assertion to be that “the wallet was not in

       fact hers” once officers found a syringe inside the wallet. Appellant’s App. Vol.

       2 at 42. During a pat-down of Kirk, she repeatedly pulled away from the

       officer. Once officers discovered methamphetamine on her person, to which

       they gave a field weight of fourteen grams, Kirk “blurted out without any

       prompting” that the methamphetamine weighed the specific amount of 13.5

       grams. Id.


[14]   We conclude that the probable cause affidavit presented sufficient information

       that, under the totality of the circumstances, both corroborated the hearsay

       from the neighbors and, even without that hearsay, supported the issuance of

       the warrant. Thus, we cannot say that the trial court violated Bailey’s rights

       under either the Fourth Amendment or Article 1, Section 11 when it issued the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 8 of 12
       warrant or admitted the evidence seized pursuant to that warrant. We affirm

       the trial court’s admission of the evidence accordingly. 2


                                       Issue Two: Evidence of Possession

[15]   Bailey next asserts that the State failed to present sufficient evidence to show

       that he constructively possessed3 the firearm found inside his residence.


                 As we have explained:


                          In order to prove constructive possession of [contraband],
                          the State must show that the defendant has both: (1) the
                          intent to maintain dominion and control over the
                          [contraband]; and (2) the capability to maintain dominion
                          and control over the [contraband]. Wilkerson v. State, 918
                          N.E.2d 458, 462 (Ind. Ct. App. 2009) (emphasis added)
                          (quoting Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004)).
                          “The capability prong may be satisfied by ‘proof of a
                          possessory interest in the premises in which [the
                          contraband is] found.’” Monroe v. State, 899 N.E.2d 688,
                          692 (Ind. Ct. App. 2009) (citing Gee, 810 N.E.2d at 340).
                          “This is so regardless of whether the possession of the
                          premises is exclusive or not.” Id. . . .


                          With regard to the intent prong of the test, where, as here,
                          a defendant’s possession of the premises upon which
                          contraband is found is not exclusive, the inference of intent
                          to maintain dominion and control over the [contraband]



       2
          In the alternative, the State asserts that the trial court did not err when it admitted the seized evidence at
       trial because the good faith exception to an invalid warrant applies. Although the State’s argument is well
       taken, we need not consider it.
       3
           We need not consider the State’s argument that Bailey actually possessed the firearm.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019                       Page 9 of 12
                        must be supported by additional circumstances pointing to
                        the defendant’s knowledge of the nature of the
                        [contraband] and [its] presence. Id. (citing Gee, 810
                        N.E.2d at 341). Those additional circumstances include:


                                (1) incriminating statements made by the defendant,
                                (2) attempted flight or furtive gestures, (3) location
                                of substances like drugs in settings that suggest
                                manufacturing, (4) proximity of the contraband to
                                the defendant, (5) location of the contraband within
                                the defendant's plain view, and (6) the mingling of
                                the contraband with other items owned by the
                                defendant.


                        Wilkerson, 918 N.E.2d at 462.


               Houston v. State, 997 N.E.2d 407, 410 (Ind. Ct. App. 2013). In
               addition to the above six circumstances, we have also recognized
               that the nature of the place in which the contraband is found can
               be an additional circumstance that demonstrates the defendant’s
               knowledge of the contraband. E.g., Carnes v. State, 480 N.E.2d
               581, 587 (Ind. Ct. App. 1985), trans. denied. Those enumerated
               circumstances are nonexhaustive; ultimately, our question is whether
               a reasonable fact-finder could conclude from the evidence that the
               defendant knew of the nature and presence of the contraband. See Gray
               v. State, 957 N.E.2d 171, 174-75 (Ind. 2011).


       Johnson v. State, 59 N.E.3d 1071, 1073-74 (Ind. Ct. App. 2016) (last emphasis

       added; footnote omitted).


[16]   Bailey asserts that the State failed to show that he had a possessory interest in

       the premises. Bailey is mistaken. He admitted that the bedroom in which the

       loaded magazine was found was his bedroom; officers also found in that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 10 of 12
       bedroom a prescription bottle with his name and the 779 Line Street address on

       it. And Bailey’s BMV records show the 779 Line Street address as his “Legal”

       and “Mailing” address since at least 2010. Ex. Vol. 1 at 65. 4 The State

       presented sufficient evidence to show that Bailey had a possessory interest in

       the residence.


[17]   Bailey also asserts that the State failed to present sufficient evidence to show

       that he knew of the nature and presence of the firearm inside the residence.

       Again, we cannot agree. Officers found the firearm in a service hole inside the

       laundry room shortly after they had observed Bailey in that room. They also

       found a loaded magazine that fit the firearm underneath a mattress in a

       bedroom that Bailey admitted was his, which room also contained a

       prescription bottle belonging to Bailey. And upon the arrival of officers at the

       residence to execute the warrant, Bailey fled. Thus, in light of Bailey’s own

       statements, his attempted flight, the proximity of the firearm to him in the

       laundry room, the relationship of the firearm to the loaded magazine, and the

       mingling of the loaded magazine with his other items, the State presented

       sufficient evidence to enable a reasonable fact-finder to conclude that Bailey

       knew of the nature and presence of the firearm. Thus, we affirm his conviction

       for possession of a firearm by a serious violent felon, as a Level 4 felony.


[18]   Affirmed.




       4
           Our pagination of the Exhibits Volume is based on the .pdf pagination.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 11 of 12
Pyle, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2020 | January 10, 2019   Page 12 of 12
