      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                          May 30 2017, 10:07 am

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


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Timothy J. O’Connor                                     Curtis T. Hill, Jr.
      O’Connor & Auersch                                      Attorney General of Indiana
      Indianapolis, Indiana                                   Larry D. Allen
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Desmond Hayes,                                          May 30, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              49A02-1606-CR-1391
              v.                                              Appeal from the Marion Superior
                                                              Court
      State of Indiana,                                       The Honorable Marc T.
      Appellee-Plaintiff.                                     Rothenberg, Judge
                                                              Trial Court Cause No.
                                                              49G02-1504-F2-11881



      Mathias, Judge.


[1]   Desmond Hayes (“Hayes”) was convicted after a jury trial in Marion Superior

      Court of Level 2 felony burglary, Level 3 felony robbery, and two counts of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017         Page 1 of 7
      Level 3 felony criminal confinement. Hayes was sentenced to a seventeen-year

      term on the burglary conviction, partly executed and partly suspended, and to

      concurrent four-year terms on the remaining counts. Hayes now appeals,

      claiming the trial court abused its discretion by admitting the fruits of a search

      warrant issued for one of Hayes’s social media accounts.


[2]   We affirm.


                                 Facts and Procedural Posture

[3]   On the evening of April 3, 2015, Marcellus Adams (“Adams”) and Shawn Lee

      (“Lee”), two young men and lifelong friends, were passing the time together in

      Adams’s apartment on the northwest side of Indianapolis, Indiana. While

      browsing a social media website, Adams saw one of his connections offering a

      .40 caliber Smith and Wesson handgun for sale under the username “Brasi

      LilAntfamila.” The user, another young man, was not personally known to

      Adams, but Adams knew of him by the nickname “Lil Bob.” Through private

      messages exchanged over the website, Adams negotiated the purchase of the

      gun for $130 and an eighth of an ounce of marijuana. On Lee’s behalf, Adams

      also negotiated the sale of Lee’s old cell phone. Adams and Lee awaited “Brasi

      LilAntfamila” in the apartment.


[4]   Around 11:00 p.m., “Brasi LilAntfamila” arrived in the company of another,

      and both were directed up to the apartment by Adams. As Adams went to open

      the front door to let them in, the visitors pushed through the door and burst into

      the apartment. “Brasi LilAntfamila” produced the Smith and Wesson Adams

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017   Page 2 of 7
      had planned to buy and pointed it at Adams and Lee; his associate did the same

      with what appeared to be a large, long-barreled revolver. Adams and Lee were

      ordered to the ground; Adams was ordered to strip to his underwear; and the

      two intruders proceeded to rob the apartment of a large television, clothes, hats,

      cash, marijuana, and Adams’s and Lee’s cell phones.


[5]   “Brasi LilAntfamila” proposed killing Adams and Lee, but his associate refused

      and left the apartment. “Brasi LilAntfamila” then marched Adams and Lee at

      gunpoint out of the apartment and down the building’s stairs. At an opportune

      moment, Adams bolted and fled into the night. Lee, resigned, prepared to meet

      his fate in the parking lot before the robbers’ waiting car. “Brasi LilAntfamila”

      turned Lee around, struck him in the back of the head several times with the

      butt of his gun, and fled in the car.


[6]   Around this time, an officer of the Indianapolis Metropolitan Police

      Department (“IMPD”) was nearby investigating a report of a suspicious person

      prowling about the back yard of a home. The officer saw Lee in the parking lot

      where the robbers had left him; Lee relayed the substance of the night’s events

      to the officer. More IMPD officers and a robbery detective, Rodney Bradburn

      (“Bradburn”), were dispatched to the scene and arrived shortly after. Adams

      soon returned to the apartment as well. Adams, now without his cell phone,

      borrowed one of the officers’ and showed Bradburn the social media account of

      “Brasi LilAntfamila.” The profile picture associated with the account matched

      the appearance of the man who had just robbed the apartment.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017   Page 3 of 7
[7]   Around 2:00 a.m. the following morning, April 4, 2015, on the west side of

      Indianapolis, an IMPD patrol officer pulled over a sedan for having license

      plates registered to an SUV. In the front passenger’s seat sat Hayes. As the

      officer approached the driver’s window, he saw a glass jar full of marijuana in

      the center console between the two front seats. The officer ordered Hayes, the

      driver, and a second passenger out of the car, and the butt of what appeared to

      be a large, long-barreled revolver — but was actually a revolver-style BB gun —

      protruded from between the center console and the now-vacant driver’s seat.

      The officer radioed for help; a second officer arrived quickly. The second officer

      searched the car while the first minded its occupants. A search of the glove

      compartment produced a second jar of marijuana and a .40 caliber Smith and

      Wesson handgun. Hayes admitted the marijuana was his but denied owning the

      handgun. Hayes was arrested. A search incident to that arrest produced one .40

      caliber round from his pants pocket.


[8]   Bradburn, meanwhile, began investigating “Brasi LilAntfamila.” The user’s

      social media account listed a birthday. Bradbury was able to match the birthday

      and the account’s profile picture to a suspect who shared the same birthday and

      the same appearance: Hayes. On April 4 and 6, 2015, Bradburn presented first

      Adams and then Lee with a six-person photo array, showing a previously taken

      picture of Hayes together with five others. Both Adams and Lee identified

      Hayes as “Brasi LilAntfamila” and the robber. Bradburn then sought and

      obtained a search warrant directed at the social media website for Hayes’s

      account. The fruits of that search included Hayes’s original post advertising the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017   Page 4 of 7
       handgun for sale; a log of the messages sent by Adams and Hayes as they

       negotiated the sale of the handgun and Lee’s cell phone; and a picture taken

       and uploaded around 11:45 p.m., April 3, 2015, showing a wad of cash, a

       handgun, two cell phones, and a glass jar of marijuana with the caption, “I got

       six jobs IDGT.”1 Ex. Vol., State’s Ex. 17.


[9]    On April 6, 2015, the State charged Hayes by information filed in Marion

       Superior Court with one count of Level 2 felony burglary, two counts of Level 3

       felony robbery, and two counts of Level 3 felony criminal confinement. On

       May 16, 2016, Hayes moved to suppress the fruits of the search warrant. The

       court denied the motion after hearing brief argument. Hayes was tried before a

       Marion County jury over two days, from May 16, 2016, to May 17, 2016.

       Fruits of the warrant were admitted without objection. The jury found Hayes

       guilty as charged on all counts.

[10]   On June 1, 2016, the court merged the two robbery counts and entered

       judgment against Hayes for burglary, robbery, and two counts of criminal

       confinement. Hayes was sentenced to a seventeen-year term for burglary: seven

       years executed in the Department of Correction, four years executed in Marion

       County Community Corrections, and six years suspended with one year on




       1
        A witness for the State testified that “IDGT” stood for “I don’t got time.” Tr. p. 258. In the context of
       Hayes’s social media username, it more likely stood for “I don’t get tired.” See Kevin Gates, I Don’t Get Tired,
       on Luca Brasi 2 (Atlantic Records 2014) (“I got six jobs, I don’t get tired.”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017                  Page 5 of 7
       probation. On each of the three remaining counts, the court imposed four-year

       terms concurrent to the first.

[11]   Hayes now appeals, claiming the trial court abused its discretion by denying his

       motion to suppress the fruits of the search warrant because the warrant was

       unsupported by probable cause.


                                      Discussion and Decision

[12]   Our review of denials of motions to suppress, when following a trial at which

       the challenged evidence was admitted, is properly a review of the trial court’s

       decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.

       2014). This decision is not subject to review for abuse of discretion unless

       contemporaneous objection was made at trial, irrespective of any pretrial

       motion to suppress. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). Hayes

       did not object at trial to the admission of any of the warrant’s fruits. Hayes’s

       claim on appeal was therefore waived unless he alleges fundamental error. Trice

       v. State, 766 N.E.2d 1180, 1182 (Ind. 2002).


[13]   Our supreme court has held that “a claim [for error in admitting

       unconstitutionally obtained evidence at trial], without more, does not assert

       fundamental error.” Brown v. State, 929 N.E.2d 204, 205 (Ind. 2010). Errors are

       fundamental only where they “make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process.” Id. at 207

       (internal citation and quotation omitted). With respect to Fourth Amendment

       protections, erroneous denial of these protections is fundamental only when

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017   Page 6 of 7
       coupled with a “claim of fabrication of evidence,” “willful malfeasance,” or a

       “contention that the evidence is not what it appears to be.” Id.


[14]   Hayes does not allege fabrication, willful malfeasance, or “that the evidence

       [was] not what it appear[ed] to be.” Id. Hayes therefore cannot allege

       fundamental error under Brown. Having waived review for abuse of discretion,

       and unable to assert fundamental Fourth Amendment error, Hayes’s claim on

       appeal fails at the threshold. Even had Hayes crossed it, he would have faced

       the heavy burdens of showing a protectable privacy interest in his social media

       activity, see United States v. Jones, 565 U.S. 400, 417-18 (2012) (Sotomayor, J.,

       concurring) (discussing vitality of third-party doctrine in “the digital age”),

       overcoming the “great deference” we owe a magistrate’s probable cause

       determinations, Illinois v. Gates, 462 U.S. 213, 236 (1983), and avoiding the

       application of United States v. Leon, 468 U.S. 897, 920 (1984) (good-faith

       exception to exclusionary rule).


                                                 Conclusion

[15]   Hayes waived abuse-of-discretion review of the trial court’s evidentiary ruling

       by failing contemporaneously to object, and cannot allege fundamental error.

       The judgment of the trial court is therefore affirmed.


[16]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1391 | May 30, 2017   Page 7 of 7
