MEMORANDUM DECISION
                                                                          Feb 25 2016, 6:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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
Alan K. Wilson                                           Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Dent,                                        February 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A05-1509-CR-1339
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C03-1502-F4-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016     Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Christopher Dent (Dent), appeals his conviction for

      dealing in a schedule I controlled substance, a Level 4 felony, Ind. Code §§ 35-

      48-4-2(a)(2); -2(d)(1) (2015); dealing in a schedule I controlled substance, a

      Level 6 felony, I.C. § 35-48-4-2(a)(1); and maintaining a common nuisance, a

      Level 6 felony, I.C. § 35-48-4-13(b)(2).


[2]   We affirm.


                                                     ISSUE

[3]   Dent raises one issue on appeal, which we restate as follows: Whether the trial

      court abused its discretion when it admitted the evidence found pursuant to

      Dent’s consent to search.


                           FACTS AND PROCEDURAL HISTORY

[4]   On January 8, 2015, Corporal Jeff Stanley (Officer Stanley) of the Delaware

      County Sheriff’s Department made a controlled buy of heroin from Dent with

      the help of an informant at Dent’s residence on South Hackley Street in

      Muncie, Indiana. At the time of the purchase, Dent was on home detention

      pending pre-trial on an unrelated offense and was required to wear an electronic

      monitoring device. The informant was given $60, which had been

      photocopied, and was outfitted with a video recording device. The video

      recording showed that the informant met with Dent, and Dent handed him a

      small piece of folded paper containing 0.10 grams of heroin.



      Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 2 of 13
[5]   On January 20, 2015, Officer Stanley and his colleague, Corporal Lenny Popp

      (Officer Popp), continued their investigation and went to Dent’s new residence

      on North Macedonia Avenue in Muncie to potentially arrest Dent. Officer

      Popp, wearing a full police uniform, knocked on the front door. Ricky

      Shannon (Shannon) answered the door. The officer explained they were

      looking for Dent, and Shannon “without saying come in, just kind of opened up

      the door … [and] acknowledged that [the officer] could come into the residence

      to talk to him.” (Transcript p. 40). Officer Popp entered the residence and

      Officer Stanley followed. Dent’s sister and her young child were also present in

      the residence. Neither Shannon nor Dent’s sister—who have a child together—

      ever asked the officers to leave. The officers asked Shannon where Dent’s

      home monitoring device was located. Shannon stated that it was in the kitchen

      and walked the officers there. While following Shannon to the kitchen, Officer

      Stanley noticed digital scales with a white powder on them in a bedroom

      through the open door. Officer Stanley did not go in the bedroom, but asked

      Officer Popp to look in as well. Officer Popp saw the digital scales and the

      residue. Shannon stated that it was Dent’s bedroom.


[6]   Officer Stanley learned that Dent might be at the community corrections office

      and left to verify. Officer Popp remained in the residence to prevent destruction

      of the evidence. He talked to Shannon and Dent’s sister without impeding their

      freedom of movement. Officer Popp learned that the residence was Dent’s and

      they rarely stayed there. During this time, neither Shannon nor Dent’s sister

      asked Officer Popp to leave.


      Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 3 of 13
[7]   Meanwhile, Officer Stanley went to the community corrections office, saw

      Dent sitting in the waiting room, and arrested him. Officer Stanley informed

      Dent of the reason for the arrest and stated that he wanted Dent’s consent to

      search Dent’s residence. Officer Stanley then drove Dent back to the residence.

      Once they arrived, Officer Stanley removed Dent’s handcuffs. They were

      outside of the residence when Dent stated that he wanted to speak with

      Shannon. Officer Stanley allowed the two to talk and then read a consent to

      search form to Dent. Dent became very belligerent, refused to sign the form,

      and told Officer Stanley to get a search warrant. Officer Popp, still inside the

      residence, heard a “ruckus” outside because Dent was “getting pretty fired up.”

      (Tr. pp. 44, 354). Officer Stanley explained to Dent that he was going to obtain

      a search warrant, that Dent would be arrested, and attempted to handcuff Dent,

      but Dent pulled away. At that point, Officer Stanley placed Dent against the

      outside wall of the residence and handcuffed him “us[ing] enough force to get

      the job done.” (Tr. p. 29). Officer Popp walked outside and placed Dent in his

      vehicle.


[8]   Inside the vehicle, Officer Popp explained to Dent that they were narcotics

      officers investigating him and reiterated that Officer Stanley was going to obtain

      a search warrant. Officer Popp, assuming that Dent had requested a lawyer,

      said that the officers could not talk to Dent because Dent had asked for a

      lawyer. Dent responded, “I never said that. I never lawyered up. I will talk to

      you guys and will give [my] consent.” (Tr. pp. 47, 357). Dent continued

      talking and asked if he would be allowed to go free or given consideration if he


      Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 4 of 13
       gave the officers permission to search. Officer Popp explained that because

       Dent had been selling drugs on in-home monitoring he would be going to jail

       and further stated he could not make any promises or coerce Dent into signing

       anything. Dent asked if he could talk to Officer Stanley.


[9]    Officer Popp called Officer Stanley and informed him that Dent had changed

       his mind and would consent to the search. The officers presented a consent to

       search form to Dent, which stated, in pertinent part, as follows:


               [H]aving been informed of my constitutional rights (Miranda
               Warning), my right to not have a search made of my premises
               and/or motor vehicle(s) hereinafter mentioned without a search
               warrant, my right to refuse to consent to a search, and my right
               to confer and speak with an attorney before I grant permission
               for a search, and my right to confer and speak to an attorney
               before I grant permission for a search and to have an attorney
               appointed by the court for such purposes if I cannot afford one,
               here by authorize, consent and allow. . . .

               ***

                                           Indiana Pirtle Warning

               You have the right to require that a search warrant be obtained
               before any search of your residence, vehicle or other premises.
               You have the right to refuse to consent to any such search. You
               have the right to consult with an attorney prior to giving consent
               to any such search. If you cannot afford an attorney, you have
               the right to have an attorney provided to you at no cost.

       (State’s Ex. 9).


[10]   Dent signed the form in three different places. The officers searched the house.

       In Dent’s bedroom, they discovered a loaded shotgun, a handgun underneath

       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 5 of 13
       the mattress, syringes, and an orange cologne box with 4.13 grams of heroin

       inside.


[11]   On January 27, 2015, the State filed an Information charging Dent with: Count

       I, dealing in a schedule I controlled substance, a Level 4 felony, I.C. §§ 35-48-4-

       2(a)(2); -2(d)(1); Count II, dealing in a schedule I controlled substance, a Level

       6 felony, I.C. § 35-48-4-2(a)(1); and Count III, maintaining a common

       nuisance, a Level 6 felony, I.C. § 35-48-4-13(b)(2). On June 17, 2015, Dent

       filed a motion to suppress the evidence found inside Dent’s residence, which

       the trial court denied following an evidentiary hearing on June 26, 2015. At the

       conclusion of a two-day jury trial, the jury found Dent guilty as charged on

       June 30, 2015. On August 10, 2015, the trial court sentenced Dent to an

       aggregate term of eight years executed at the Department of Correction.


[12]   Dent now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                             I. Standard of Review


[13]   We initially note that Dent frames our standard of review with regard to the

       trial court’s denial of his motion to suppress evidence. However, because Dent

       appeals after a completed trial, the question of whether the trial court erred in

       denying his motion to suppress is no longer viable. Reinhart v. State, 930 N.E.2d

       42, 45 (Ind. Ct. App. 2010) (internal citations omitted). The issue is more

       appropriately framed as whether the trial court abused its discretion when it

       admitted the evidence at trial. Id. When we review a trial court’s ruling on the
       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 6 of 13
       admissibility of evidence resulting from an allegedly illegal search, we do not

       reweigh the evidence, and we consider conflicting evidence most favorable to

       the trial court’s ruling. Id. We also defer to the trial court’s factual

       determinations unless clearly erroneous. Id. However, we consider afresh any

       legal question of the constitutionality of a search or seizure. Id.


                                     II. Officers Entry into the Residence


[14]   Dent claims that the officers’ initial entry into his residence was illegal. He

       specifically asserts that Shannon lacked either actual or common authority over

       the premises to consent to the officers’ entry.


[15]   We have previously stated that a third party may consent to police officers

       entering onto the property of another and searching the premises if actual

       authority exists. Starks v. State, 846 N.E.2d 673, 679 (Ind. Ct. App. 2006). If

       actual authority cannot be shown, then facts demonstrating that the consenting

       party had apparent authority to consent could prove a lawful search. Primus v.

       State, 813 N.E.2d 370, 374 (Ind. Ct. App. 2004). Under the apparent authority

       doctrine, a search is lawful if the facts available to the officer at the time would

       cause a person of reasonable caution to believe that the consenting party had

       authority over the premises. Id. at 374-75. The State bears the burden of

       proving that the third party possessed the authority to consent. Id. at 375.


[16]   In Starks, an officer knocked on the door and a third party, someone other than

       a homeowner, answered it. Starks, 846 N.E.2d at 679. The officer explained

       that he was there to check on the welfare of the homeowner, and the third party

       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 7 of 13
       stated that the homeowner could not come to the door because she had an

       amputated leg. Id. The third party let the officers in and then escorted one of

       the officers to the homeowner. Id. The third party clearly demonstrated his

       sufficient knowledge and relationship to the property and the homeowner.

       Because the third party was the homeowner’s grandson and a resident of the

       home, we held that he had the authority to admit the officers into the house.

       Id.


[17]   Here, similar to Starks, someone other than the homeowner opened the door,

       and Officer Popp explained that he was looking for Dent. Shannon stated Dent

       was not there. He then “without saying come in … opened up the door and

       just stepped back, so [the officers] walked in to talk to him.” (Tr. p. 40). See

       McIlquham v. State, 10 N.E.3d 506, 512 (Ind. 2014) (citing United States v.

       Villegas, 388 F.3d 317, 325 (7th Cir. 2004) (consent to enter held valid when the

       defendant opened the door and allowed the police officers to enter after the

       officers had identified themselves, asked permission to speak with the

       defendant, and did not threaten the defendant or brandish their weapons) and

       United States v. Walls, 225 F.3d 858, 863 (7th Cir. 2000) (consent to enter held

       valid when the defendant opened the door and stepped back to allow the

       agents’ entrance after they had identified themselves and what they were

       investigating)). In essence, Shannon non-verbally consented to the officers’

       entry.


[18]   When asked about Dent’s home monitoring device, Shannon stated that it was

       in the box in the kitchen and then escorted the officers there. Shannon

       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 8 of 13
       demonstrated his sufficient relationship to or mutual use of the property

       because at the time of the entry he had knowledge of Dent’s whereabouts, had

       knowledge of the location of Dent’s home monitoring device, and was familiar

       with the layout of Dent’s residence. Later, the officers learned that Shannon

       knew Dent for several years, had blood relations to Dent, had his weapons in

       Dent’s bedroom, and had an explicit permission to stay there that day and the

       previous night. As such, it was reasonable for the officers to believe Shannon

       had apparent authority to admit them into the house to check the monitoring

       device and talk to the individuals inside. See Starks, 846 N.E.2d at 679.


                                             III. Consent to Search


[19]   Dent further asserts that his consent to search his residence was not voluntary.

       Generally, a search warrant is a prerequisite to a constitutionally proper search

       and seizure. Primus, 813 N.E.2d at 374 (internal citations omitted). When a

       search is conducted without a warrant, the State has the burden of proving that

       an exception to the warrant requirement existed at the time of the search. Id.

       Warrantless searches and seizures inside the home are presumptively

       unreasonable. Id. However, one well-recognized exception to the warrant

       requirement is a voluntary and knowing consent to search. Id. The theory

       underlying the consent exception is that, when an individual gives the State

       permission to search either his person or property, the governmental intrusion is

       presumably reasonable. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 9 of 13
[20]   Whether consent to a search was given voluntarily is a question of fact to be

       determined from the totality of all the circumstances. State v. Cunningham, 26

       N.E.3d 21, 25 (Ind. 2015) (internal quotation marks and citations omitted). We

       consider conflicting evidence most favorably to the trial court's ruling, as well as

       undisputed evidence favorable to the defendant. Id. It is the State's burden to

       prove that consent to a search was in fact voluntarily given, and not the result of

       duress or coercion, express or implied. Id.


[21]   Dent specifically claims that the language of the Pirtle warning in the form

       signed by him was not sufficient because it failed to state that he was “entitled

       to the presence and advice of counsel prior to” consenting to the search.

       (Appellant’s Br. p. 13) (emphasis original).


[22]   In Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), our supreme court held that “a

       person who is asked to give consent to a search while in police custody is

       entitled to the presence and advice of counsel prior to making the decision

       whether to give such consent.” Id. at 640. Our supreme court, however, further

       refined the doctrine in Jones v. State, 655 N.E.2d 49 (Ind. 1995), stating that a

       “person in custody must be informed of the right to consult with counsel about

       the possibility of consenting to a search before a valid consent can be given.”

       Id. at 54 (citations omitted). Here, following a Miranda warning, the officers

       informed Dent of his Pirtle rights. The officers advised Dent that he had the

       right to require a warrant before consenting to the search; that he had the right

       to refuse to consent; that he had the right to consult with an attorney prior to

       consenting; and that he had the right to have an attorney appointed at no cost if

       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 10 of 13
       he could not afford one. Dent later testified at the suppression hearing that he

       did, in fact, voluntarily signed the form. Now, Dent invites us to give the

       original language of the Pirtle warning special powers. We are reluctant to do

       that because it would require us to elevate form over substance. See, e.g., French

       v. State, 754 N.E.2d 9, 15 (Ind. Ct. App. 2001) (where the purpose of a rule is

       satisfied, this court will not elevate form over substance). We find that, in line

       with the Jones decision, the language of the Pirtle warning contained in the

       police form voluntarily signed by Dent was sufficient to inform Dent that he

       had the right to consult with counsel before consenting to the search of his

       residence.


[23]   Dent finally contends that he was coerced into signing the consent form because

       the officers told him that they would get a search warrant if he refused to

       consent to the search. In Daniel v. State, 582 N.E.2d 364 (Ind. 1991), cert.

       denied, our supreme court ruled that it was not improper for an officer to inform

       a defendant that a warrant will be sought if consent is not given. Id. at 369.

       In State v. Barker, 734 N.E.2d 671 (Ind. Ct. App. 2000), we also recognized that

       there is a difference between an officer telling a defendant that a warrant will be

       “obtained as opposed to merely sought.” Id. at 674.


[24]   In Barker, the officers were investigating an anonymous tip that sixty-one year-

       old Barker was growing marijuana in her home. Id. at 672. The officers went

       to Barker’s residence, asked Barker if they could enter the house, and told her

       they could get a search warrant if she refused them entrance. Id. Barker

       cooperated and told the officers she had nothing to hide and that they could
       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 11 of 13
       come in and look around. Id. The officers went inside and found ten

       marijuana plants, potting soil, and lights in the basement. Id. After the search

       and seizure, the officers presented Barker a “Permit to Search” form that Barker

       signed. Id. Because of Barker’s age and relative inexperience with law

       enforcement, we held that she was coerced into signing the form under the

       circumstances. Id. at 674.


[25]   Here, unlike the defendant in Barker, Dent was not inexperienced in his

       dealings with law enforcement. He knew his rights and clearly revoked his

       consent to search at least once. The record does not show that the officers used

       the threat of a search warrant to make Dent sign the consent form at any point.

       After revoking his initial consent, Dent was placed in Officer Popp’s vehicle

       and then raised the issue again himself. Dent was hoping to get some leniency

       for his cooperation and his consent to search. Officer Popp was very careful in

       his conversation with Dent; he made it clear that the officers would not make

       any promises and would not coerce him into signing anything. Also, unlike

       Barker, where the reason for the search was an informant tip, here, the reason

       for the search was more substantial—the video recording of the controlled buy

       of heroin from Dent on January 8, 2015. The officers’ statement and ability to

       get a search warrant were not illusory here. As such, we find that Dent’s

       consent to the search of his residence was voluntary.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 12 of 13
                                               CONCLUSION

[26]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in admitting the evidence found in Dent’s residence because Dent voluntarily

       consented to the search.


[27]   Affirmed.


[28]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A05-1509-CR-1339 | February 25, 2016   Page 13 of 13
