                                                                      FILED
                                                                 Mar 19 2018, 5:26 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                     Curtis T. Hill, Jr.
Appellate Public Defender                                 Attorney General of Indiana
Crown Point, Indiana                                      Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isiah L. Barker,                                          March 19, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A03-1701-CR-123
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G04-1211-MR-12



Brown, Judge.




Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                   Page 1 of 32
[1]   Isiah L. Barker appeals his convictions for murder and feticide as a class B

      felony. Barker raises one issue which we revise and restate as whether the trial

      court abused its discretion in admitting certain evidence. We affirm.


                                       Facts and Procedural History

[2]   In June 2011, Cynthia Funches, a certified nursing assistant employed at

      Renaissance Park South, was in a relationship with Barker and was pregnant

      with his child. Funches lived in an apartment in Highland, Indiana, and her

      lease listed her as the only resident and provided in part that “[t]he premises

      shall be occupied solely for residential purposes by Resident and those persons

      listed in the Application for the Lease” and that “[v]isitors will be limited to 2

      persons staying with Resident for a maximum of 14 days, whether consecutive

      or individually during each year of the Lease term.” State’s Suppression

      Hearing Exhibit 3. Funches listed Barker as her emergency contact on her

      application for residency and his address as 9350 South Green.


[3]   On June 21, 2011, Funches called Genett Clay, a nurse, and told her that she

      wanted to call off from work because she was bleeding and needed to go to the

      hospital. Clay heard a male voice instructing Funches to “hang up the damn

      phone, because we have to go.” Trial Transcript Volume 2 at 34. Funches

      called Clay again, and Clay heard the same male voice state: “I don’t have time

      for this shit. Hang up the phone. We have to go to the hospital.” Id.


[4]   Around 11:00 p.m. on June 21, 2011, Vivian Pettigrew, who lived in the same

      apartment complex as Funches, left her apartment and went to her car to


      Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018    Page 2 of 32
      retrieve her laundry. She observed two men coming down the stairs with a bin

      and recognized one of the men as Funches’s boyfriend, Barker. Pettigrew made

      eye contact with Barker, he “ducked his head real quick,” and “it troubled [her]

      spirit.” Trial Transcript Volume 3 at 186, 202. She observed the men struggle

      with the bin and head towards a green Caravan that Pettigrew recognized as the

      same Caravan that Barker had previously driven. She also observed that the

      Caravan had two mattresses on top.


[5]   On June 22, 2011, Funches’s sister, Shaunte Ruth, called the office of Funches’s

      apartment complex, told a woman that she was trying to contact her sister and

      had not heard from her, and asked if she would go to the apartment and see if

      she received a response at the door. Laura Newton and her co-worker, Pamela

      Heeringa, went to Funches’s apartment, knocked on the door, received no

      response, and then entered the door using a key.


[6]   Heeringa found the apartment in “complete disarray.” Transcript of

      Suppression Hearing Volume 2 at 10. Newton and Heeringa looked for

      Funches, but did not find her. They observed a rolled-up carpet in the living

      room and that the carpet was missing from the dining room and the hallway

      area. Newton went into the dining room and down the hall where she could

      see in the bedroom and the bathroom and “went to where [she] would have

      been able to see [Funches] if she had been there.” Trial Transcript Volume 2 at

      94. Newton observed that there was furniture located in various areas of the

      apartment where it should not have been such as a dresser in the kitchen and



      Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 3 of 32
      that the apartment looked like it had been ransacked. Heeringa locked the

      door, returned to the leasing office, and called the police.


[7]   Highland Police Officer Brandon Norris received a dispatch regarding a welfare

      check or “[c]hecking the wellbeing of somebody that somebody hasn’t had

      contact with in a little while or something of that nature.” Id. at 121. Officer

      Norris spoke with the apartment employees, and they gave him information as

      to the apartment that he needed to check. At some point, Highland Police

      Officer Wright also arrived. The leasing agents informed Officer Norris that “a

      female had not been seen or heard from in a while, so they were going to let

      [them] into the apartment, if we could have a welfare check on her.” Transcript

      of Suppression Hearing Volume 2 at 162. The leasing agents mentioned to

      Officer Norris that they had “peeked in and seen some things which then led

      them to believe that they should back out and call the police.” Id. One of the

      leasing agents told Officer Norris that there were blood stains on some rolled-up

      carpet inside the apartment. Officer Norris inquired whether there were any co-

      tenants that lived there at that time and was advised that Funches was the only

      lessee. Heeringa let the officers into the apartment.


[8]   When Officer Norris first entered the apartment, he saw that the door trim

      looked as if it had been damaged. He observed that “everything was stacked up

      in the kitchen” and “everything was in disarray,” and the officers proceeded in

      “to make sure that there was no – nothing – you know, foul play or anything –

      anything crazy inside, because just how things were stacked up and everything

      was in disarray, and it looked a little suspicious.” Id. at 165. Officer Norris

      Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 4 of 32
      called out “Hello Highland Police” to make sure no one was present and, as he

      and Officer Wright were going down the hallway, they noticed other things out

      of place or out of the ordinary. Id. at 168. Officer Norris smelled an odor “that

      could be recognizable as a cleaning product or bleach” and observed that the

      kitchen was full of furniture and what he thought was rolled-up fragments of

      carpet in the living room. Trial Transcript Volume 2 at 146. The bedroom did

      not have any mattresses or carpet, stains were present on the floor, and the

      closet mirror was cracked. Officer Norris believed he was standing in a crime

      scene. He canvassed the entire apartment and did not find Funches. He “went

      over to the carpet, pulled a piece or two and rolled it back and noticed

      immediately that there was some blood stain on the carpet.” Transcript of

      Suppression Hearing Volume 2 at 175. Officer Norris then saw Corporal

      Potesta, his immediate supervisor, standing at the front of the apartment.

      Corporal Potesta took a look and then said, “[A]ll right, let’s – no more

      touching anything. Let’s call Detective Santino.” Id. Officer Norris then

      stayed in the immediate hallway outside the door to secure the scene and spoke

      to Highland Police Detective Mark Santino when he arrived.


[9]   After speaking briefly with the family and with the knowledge that Funches

      apparently had been out of contact with her family and missing, Detective

      Santino entered the apartment as a “follow-up with patrol for their welfare

      check” or “an extension of their welfare check.” Id. at 42. At that time,

      Detective Santino believed that Funches was alive. During his walkthrough of

      the living room, kitchen, and hallway, Detective Santino did not see a cot, a


      Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018    Page 5 of 32
       sleeping bag, or anything to indicate that someone was staying there that day.

       The apartment appeared abandoned “[f]or all practical purposes.” 1 Id. at 85. In

       the bedroom, Detective Santino observed that there was not even a mattress or

       box spring and it did not appear to him that anyone was staying in the

       bedroom. Detective Santino also observed some sort of dark substance on the

       concrete which he believed to be blood, a couple of speckles of blood in the

       hallway, and a bucket with a liquid and a rag inside that had a red-like

       substance on it. Detective Santino did not collect any property during that

       initial walkthrough. He told a patrolman to close the door and secure it.


[10]   Detective Santino asked Heeringa who was on the lease, and she confirmed

       that Funches was the leaseholder. Detective Santino had contact with

       Funches’s family and learned that Funches might be in the company of Barker

       and that she was potentially being held against her will. Detective Santino was

       not sure if the victim was deceased or still alive, and he then called the Lake

       County Crime Lab to obtain a second opinion and start processing the

       apartment with the goal of finding Funches. The crime lab took photographs of




       1
         At the suppression hearing, Detective Santino was asked during cross-examination: “You made some
       speculation earlier in your testimony that you believe the apartment appeared to be abandoned, is that
       correct?” Transcript of Suppression Hearing at 113-114. He answered: “Abandon slash disarray.” Id. at
       114. When asked if it was his assumption that the apartment was abandoned, Detective Santino answered:
       “I mean it’s a hard question to answer because, again, it’s – I can tell you what my personal observations
       were. And I guess it’s going to be, you know, what each individual’s opinion. To me it was just – you know,
       it was – there was a lot of things out of place. It would not be indicative of a regular apartment.” Id.

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                        Page 6 of 32
       the apartment and collected pieces of carpeting, a piece of paper, and swabs of

       an unknown red substance.


[11]   Meanwhile that same day, Chicago Police Detective Stan Kalicki responded to

       a call regarding a body found in a garage in Chicago by a homeowner.

       Detective Kalicki arrived at the scene and observed it to be an abandoned house

       and garage. The homeowner informed the police that he had arrived there

       earlier in the day and observed the side door that he had just screwed shut was

       kicked up and a padlock had been placed on it to prevent access. The

       homeowner cut off the lock, entered the garage, opened a plastic tote container,

       and discovered a body. The police observed that the body had a uniform for

       Renaissance Rehabilitation Center, contacted the Center, and learned that

       Funches was employed there but was not there that day. The police observed a

       tattoo on the forearm and tentatively identified the body as Funches. It was

       later determined that Funches suffered stab wounds and died from multiple

       blunt force trauma2 and the fetus within her died from asphyxiation anoxia.




       2
         When asked for his conclusion as to the cause of death, Dr. John Feczko testified: “So I would have called
       it, just as the Cook County coroner or pathologist did, multiple blunt force trauma, but the main vital blow –
       a lot of these stab wounds are very superficial, but the main blow that would have resulted in death would
       have been the strike on the head resulting in subarachnoid and subdural hemorrhage of the brain, which
       causes you to stop breathing. You cannot get oxygen in. Obviously, multiple blunt force trauma.” Trial
       Transcript Volume 5 at 90. When asked on cross-examination if Funches died from multiple injuries or just
       one, Dr. Feczko answered: “I would say that the fatal blow is the injury to the head.” Id. at 100. He later
       stated: “On the report, I would have signed it out the same way, multiple blunt force trauma. Because with
       multiple blunt force trauma, you can have bleeding that can result in loss of blood and, you know, death
       from, again, asphyxia, not having oxygen, but certainly, that and the head injury was the cause of death.” Id.
       at 107.

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                          Page 7 of 32
[12]   Approximately “[a]n hour, ninety minutes,” after Detective Santino arrived at

       Funches’s apartment, Chicago Police called Detective Santino and informed

       him that there was a tentative identification of a body found as being Funches

       based on tattoos of the victim. Trial Transcript Volume 3 at 28.


[13]   After the crime lab left and after Detective Santino learned that Funches was

       presumed dead, Officer Norris went back into the apartment and collected

       some pieces of evidence left behind by the crime lab. Detective Santino learned

       that Officers Norris and Munoz looked through some papers including a

       Highland Police traffic ticket and a ticket issued to Barker which listed Barker’s

       address as 8350 South Green in Chicago. The police recovered a number of

       documents from the apartment including: a document containing a picture of

       Barker’s identification listing his address as 8350 South Green in Chicago; a

       receipt dated May 20, 2010, for a vehicle tow for the City of Chicago listing

       Barker’s address as 8350 South Green in Chicago; and a credit card statement

       for a time period of January 7th to February 5th, 2011, addressed to Barker

       listing his address as 8350 South Green Street in Chicago. Also on June 22,

       2011, police impounded Barker’s minivan found in Chicago.


[14]   On June 23, 2011, Highland Police Detective Lester John Siple prepared a

       warrant on the basis that the investigation went from a welfare check to a

       homicide investigation. The warrant was signed by a judge and issued at 11:13

       a.m. That day, Indiana State Police Trooper Scott Gilbert focused on the blood

       stain evidence and collected swabs and a piece of drywall.



       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 8 of 32
[15]   Also on June 23, 2011, La Porte County Sheriff Captain Patrick G. Cicero, a

       member of the International Association of Bloodstain Pattern Analysts,

       responded to Funches’s apartment and completed a bloodstain pattern analysis.

       Captain Cicero took photographs of the apartment including a photograph of

       the floor with a “fairly significant[,] stain, reddish brown in color” on the

       concrete floor and bloodstains on the wall. Trial Transcript Volume 4 at 24.

       Captain Cicero observed wooden tack strips for carpeting on the concrete floor,

       but the carpeting was not present. He also observed the glass on a panel of a

       folding closet door was cracked and there was dried blood in the channel or

       track of the door. He determined that the mirror had evidence of bloodstains

       that had been cleaned, and determined the presence of blood in the bedroom,

       hallway, and bathroom. He also determined that there were impact patterns in

       the bathroom and cast off patterns in the hallway.


[16]   The police learned that Barker dropped off a minivan that he typically drove

       with an Illinois license plate to Towanna Johnson’s house in Chicago and took

       her green Taurus which had an Illinois license plate. The Taurus contained a

       parking permit with an expiration date of June 30, 2011, affixed to the

       windshield so the vehicle could be legally parked in Chicago. The police

       discovered a sixty pound bag of Quickrete concrete in the passenger seat as well

       as a spray cleaner and a brand new brush. In the rear seat of the vehicle, the

       police discovered a brand new bucket, a brand new gallon sized jug of Liquid

       Fire, and sulfuric acid. The police determined that these items were purchased

       from a True Value Hardware Store in Chicago and the bin in which Funches’s


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018    Page 9 of 32
       body was discovered was purchased at Walmart. Video surveillance from these

       stores showed Barker and Octavius Barlow, Barker’s childhood friend.

       Detective Santino also discovered that there was “a flurry of cell phone activity

       between” the cell phones of Barker and Barlow from midnight or the late night

       hours of June 21st into the early morning hours of June 22nd. Trial Transcript

       Volume 3 at 55.


[17]   On November 1, 2012, the State charged Barker with Count I, murder, and

       Count II, feticide as a class B felony. On October 7, 2013, Forest Park Police

       Officer Joseph Carrico executed a traffic stop on a vehicle in which Barker was

       traveling as a passenger in Georgia. When Officer Carrico asked Barker for his

       name, Barker told him it was Zoe Lyons. Barker attempted to flee but was

       eventually arrested.


[18]   On February 10, 2015, Barker filed a motion to suppress evidence seized from

       “Defendant’s apartment located at 9059 Southmoor Street, Apartment 20,

       Highland, Indiana.” Appellant’s Appendix Volume 2 at 144. He alleged that

       he had an expectation of privacy in the apartment because he lived there with

       Funches and that evidence was collected without a warrant or exigent

       circumstances. On July 20, 2015, and January 22, 2016, the court held a

       hearing on the motion to suppress. Heeringa testified that she had the authority

       to enter the apartment as an employee and that an addendum in the lease

       required residents to agree that “at any time for pretty much any reason we’re

       allowed to go in their apartment” and “by any means that we see suitable.”

       Transcript of Suppression Hearing Volume 2 at 12. Heeringa testified that she

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 10 of 32
       never received any complaints of an unauthorized individual living with

       Funches. When asked if he recalled whether or not Funches’s family said

       anything about Barker living with Funches, Detective Santino answered: “No.

       No one ever said anything about them.” Id. at 57.


[19]   After the State rested, Barker presented the testimony of several witnesses.

       Tashika Walker, Barker’s sister, testified that Barker and Funches lived together

       in the apartment on Southmoor Avenue, Barker paid the rent, and that Funches

       “was just putting it in her name and taking it in.” Id. at 139. She testified that

       certain items in the apartment belonged to Barker. On cross-examination, she

       testified that she visited Barker and Funches at that apartment but “[n]ot too

       often” and that she last saw Barker and Funches “a few days before the 21st” in

       Chicago. Id. at 145, 149. She also testified that Barker received mail at her

       father’s house at 8350 South Green Street in Chicago.


[20]   On June 1, 2016, the court entered an eight-page order concluding that Barker

       did not have standing to contest any possible unlawful search of the apartment

       and that, even if he did have standing, the search was reasonable under

       Litchfield and the Indiana Constitution, and denying Barker’s motion to

       suppress. In part, the order states that Barker had not provided sufficient

       evidence to establish that he lived in the apartment and that “[i]n fact, if

       [Barker] claims to have lived in the apartment, that would be a violation of the

       lease agreement.” Appellant’s Appendix Volume 3 at 5. The court found that

       Barker “did not reside in Ms. Funches’ apartment and therefore he does not



       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 11 of 32
       have standing to contest any unlawful search or seizure of Ms. Funches’

       apartment.” Id. at 6.


[21]   In October and November 2016, the court held a jury trial. Prior to trial,

       Barker’s counsel renewed her request to suppress all evidence from Funches’s

       apartment, and the court denied the motion. The State presented the testimony

       of numerous witnesses. Ruth, Funches’s sister, testified on cross-examination

       that Barker resided in the same apartment with Funches. In part, the State

       presented evidence that a screwdriver was recovered from the apartment. See

       Trial Transcript Volume 3 at 235. The DNA profile obtained from the swab of

       the screwdriver matched Barker’s DNA profile. Trial Transcript Volume 6 at 8.

       Dr. John D. Feczko testified that some of the wounds could have been caused

       by a screwdriver. Trial Transcript Volume 5 at 108. Sharon Pollock, the

       forensic DNA analyst, testified that Funches’s DNA was not found on the

       screwdriver. Trial Transcript Volume 6 at 32.


[22]   After the State rested, Walker, Barker’s sister, testified that Barker stayed with

       “Angela” in the apartments in Highland and clarified that she was referring to

       Funches and indicated that Barker lived with Funches. Id. at 80. She testified

       that she had seen Barker and Funches together at that apartment previously and

       that Barker kept items there including personal belongings, clothes, furniture,

       jewelry, and a television. She testified that Barker had previously lived with his

       father, Frank Barker, at 8350 South Green Street, and that Barker and Funches

       were dating and expecting a baby together. She stated that Barker used

       construction materials for work on her father’s house and that he used Quikrete

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 12 of 32
       or concrete and in June 2011 was fixing the piping and a hole in the ground in

       the basement.


[23]   On cross-examination, when asked why she called Funches Angela, Walker

       answered: “Just thinking of something else. I know who she is.” Id. at 100.

       Walker indicated that Barker did not continue the work at her father’s house

       and that he was not “around to fix it up” after Funches’s death. Id. at 104. On

       redirect examination, Walker testified that she was not surprised that Barker

       moved in June of 2011 without notifying her because it was not unusual.

       Walker also testified that she did not have any communication with him from

       June 2011 until October 2013 when he was on the news.


[24]   The jury found Barker guilty as charged. The court sentenced him to sixty-four

       years for murder and nineteen years for feticide as a class B felony and ordered

       the sentences to be served consecutively to each other for an aggregate sentence

       of eighty-three years.


                                                    Discussion

[25]   The issue is whether the trial court erred in admitting certain evidence.

       “Because the trial court is best able to weigh the evidence and assess witness

       credibility, we review its rulings on admissibility for abuse of discretion and

       reverse only if a ruling is ‘clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights.’” Carpenter v.

       State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252,

       260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018     Page 13 of 32
       search or seizure is a question of law that we consider de novo.” Id. Even if the

       trial court’s decision was an abuse of discretion, we will not reverse if the

       admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.

       Ct. App. 1999), reh’g denied, trans. denied.


[26]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter, 18

       N.E.3d at 1001. If the foundational evidence at trial is not the same as that

       presented at the suppression hearing, the trial court must make its decision

       based upon trial evidence and may consider hearing evidence only if it does not

       conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).


[27]   Barker argues that he had standing to object to the warrantless search of the

       apartment under both the Fourth Amendment and the Indiana Constitution.

       He points to evidence that he lived in the apartment with Funches, he paid rent

       and other bills, and a number of items such as clothing and furniture belonged

       to him. He asserts that, even if he did not live at the apartment full-time, he

       was a frequent guest and had a reasonable expectation of privacy. The State

       argues that Barker did not have a reasonable expectation of privacy in

       Funches’s apartment and did not have standing to challenge the initial entry

       and brief search of the apartment.


[28]   We note that Fourth Amendment rights are personal and may not be

       vicariously asserted. Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (citing

       Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S. Ct. 421, 425 (1978)), reh’g denied,


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 14 of 32
       cert. denied, 522 U.S. 1078, 118 S. Ct. 858 (1998). “A defendant ‘aggrieved by

       an illegal search and seizure only through the introduction of damaging

       evidence secured by the search of a third person’s premises has not had any of

       his Fourth Amendment rights infringed.’” Id. (quoting Rakas, 439 U.S. at 134,

       99 S. Ct. at 425). “[I]n order to challenge a search as unconstitutional, a

       defendant must have a legitimate expectation of privacy in that which is

       searched.” Id. “To challenge a search ‘a defendant must establish ownership,

       control, possession, or interest’ in the premises searched.” Campos v. State, 885

       N.E.2d 590, 598 (Ind. 2008) (quoting Peterson, 674 N.E.2d at 532-534). The

       defendant must show a subjective and objective expectation of privacy in the

       premises. Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577

       (1979)). See also Peterson, 674 N.E.2d at 532 (“The burden is on the defendant

       challenging the constitutional validity of a search to demonstrate that he had a

       legitimate expectation in the premises searched.”) (citing Livingston v. State, 542

       N.E.2d 192, 194 (Ind. 1989)).


[29]   One difference between the federal and state analyses is terminology. Allen v.

       State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), reh’g denied, trans. denied.

       “In short, the U.S. Supreme Court has abandoned the concept of ‘standing.’”

       Id. In Rakas, the United States Supreme Court determined that the “definition

       of those [personal] rights [that is, whether the proponent is asserting his own

       legal rights and interests rather than basing his claim for relief upon the rights of

       third parties] is more properly placed within the purview of substantive Fourth




       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 15 of 32
       Amendment law than within that of standing.” Id. (quoting Rakas, 439 U.S. at

       140, 99 S. Ct. 421 (bracketed text inserted in Allen)).


[30]   In Allen, we observed that the principal difference between the Fourth

       Amendment and Article 1, Section 11 regarding the concept of standing was

       articulated by the Indiana Supreme Court in Peterson:


               We note that the federal inquiry into standing under the Fourth
               Amendment focuses, in most part, on the defendant’s privacy
               expectation in the premises searched. While cases interpreting
               our state constitutional provision have also placed significant
               focus on the premises searched, independent consideration is directed
               to the defendant’s interest in the property seized.


       Id. at 1097 (quoting Peterson, 674 N.E.2d at 534 (emphasis added in Allen)).

       “The court recently acknowledged this difference: ‘the Indiana Constitution

       provides protection for claimed possessions irrespective of the defendant’s

       interest in the place where the possession was found.’” Id. (quoting Campos,

       885 N.E.2d at 598; and citing Sisk v. State, 785 N.E.2d 271, 274 (Ind. Ct. App.

       2003) (“While the inquiry into standing under the Indiana constitutional

       provision places a significant focus on the premises searched, like the applicable

       Fourth Amendment focus, independent consideration is directed to the

       defendant’s interest in the property seized.”)). “Notwithstanding this

       significant analytical difference, a review of our jurisprudence does not

       demonstrate much of a difference, if any, in result when a defendant’s interest

       in seized property is not at issue.” Id.



       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018    Page 16 of 32
[31]   Despite the differences between the federal and state constitutional analyses, the

       Indiana Supreme Court has noted that “‘[m]any search and seizure issues are

       resolved in the same manner under both the Indiana and Federal

       Constitutions.’” Id. at 1098 (quoting Campos, 885 N.E.2d at 596).3 With this

       background in mind, we turn to the instant case. Barker does not claim that he

       has an interest in any seized item. Rather, his challenge is based solely on his

       asserted interest in the apartment. Thus, as stated in Campos, state

       constitutional protection for claimed possessions is not at issue here. See id. at

       1099. We see no reason why our resolution of this issue would be different

       under the Indiana Constitution than it would be under the United States

       Constitution. See id.


[32]   Our focus then is whether Barker has established ownership, control,

       possession, or interest in the premises. See Peterson, 674 N.E.2d at 534. Barker

       must also show “a subjective and objective expectation of privacy in the

       premises.” See Campos, 885 N.E.2d at 598 (citing Smith, 442 U.S. at 740, 99 S.

       Ct. 2577).




       3
           In Allen, we noted:

                  Even so, Indiana courts have continued to use the “standing” terminology when discussing
                  Fourth Amendment claims. See, e.g., Campos, 885 N.E.2d at 598; Peterson, 674 N.E.2d at
                  532; Strangeway v. State, 720 N.E.2d 724, 726 (Ind. Ct. App. 1999). On the other hand, at
                  times we have acknowledged that the U.S. Supreme Court has dispensed with this
                  terminology. See Smith v. State, 744 N.E.2d 437, 439 (Ind. 2001); Edwards v. State, 832
                  N.E.2d 1072, 1075 n.2 (Ind. Ct. App. 2005); Best [v. State], 821 N.E.2d [419, 424 n.2 (Ind.
                  Ct. App. 2005)[, reh’g denied, trans. denied]; Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct.
                  App. 2002); Mays v. State, 719 N.E.2d 1263, 1266 (Ind. Ct. App. 1999), trans. denied (2000).

       893 N.E.2d at 1097 n.4.

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                            Page 17 of 32
               This inquiry . . . normally embraces two discrete questions. The
               first is whether the individual, by his conduct, has exhibited an
               actual (subjective) expectation of privacy—whether . . . the
               individual has shown that he seeks to preserve [something] as
               private. The second question is whether the individual’s
               subjective expectation of privacy is one that society is prepared to
               recognize as reasonable—whether . . . the individual’s
               expectation, viewed objectively, is justifiable under the
               circumstances.


       Smith, 442 U.S. at 740, 99 S. Ct. at 2580 (quotations and citations to Katz v.

       United States, 389 U.S. 347, 88 S. Ct. 507 (1967), omitted). “A person may

       maintain more than one home or place of habitation with the expectation that

       both will be free from an unlawful intrusion.” Mitchell v. State, 259 Ind. 418,

       423, 287 N.E.2d 860, 863 (1972). “As the United States Supreme Court has

       held, ‘an overnight guest in a home may claim the protection of the Fourth

       Amendment, but one who is merely present with the consent of the

       householder may not.’” Fox v. State, 983 N.E.2d 1165, 1168 (Ind. Ct. App.

       2013) (quoting Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469 (1998)).


[33]   The record contained evidence that Barker lived in Chicago. Funches listed

       him as her emergency contact on her application for residency and his address

       as 9350 South Green. Multiple documents which were introduced by the

       defense and admitted by the court found in Funches’s apartment listed Barker’s

       address as Chicago. The record reveals that Funches was the only individual

       listed as a resident on the lease which she signed on January 29, 2011.




       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 18 of 32
[34]   At the suppression hearing, Walker testified that Barker lived in Indiana with

       Funches “[f]rom the time she signed the lease” and stated “[m]eaning her

       moving in there.” Transcript of Suppression Hearing Volume 2 at 152. At

       trial, when asked how long Funches and Barker had lived in the apartment,

       Walker answered: “It wasn’t long. I believe they moved in March there.” Trial

       Transcript Volume 6 at 81. At trial, on cross-examination, Ruth, Funches’s

       sister, testified that it was fair to say that Funches lived with Barker, that he

       resided in the same apartment with Funches, and that Barker was not an

       overnight guest. Trial Transcript Volume 2 at 61. On cross-examination,

       Mattie Parker, a person who grew up with Funches, testified that Barker lived

       with Funches in June 2011. Id. at 83. The lease provided that “[v]isitors will be

       limited to 2 persons staying with Resident for a maximum of 14 days, whether

       consecutive or individually during each year of the Lease term.” State’s

       Suppression Hearing Exhibit 3. Given that Funches was the only individual

       listed on the lease and the lease limited visitors to stays of no more than

       fourteen days, we cannot say that Barker has demonstrated a reasonable

       objective expectation of privacy in the premises.


[35]   We also note the condition of the apartment. The apartment was described as

       being in “complete disarray” by Heeringa. Transcript of Suppression Hearing

       Volume 2 at 10. Officer Norris observed that “everything was stacked up in the

       kitchen” and “everything was in disarray.” Id. at 165. The bedroom did not

       have any mattresses or carpet, what appeared to be stains were present on the

       floor, and the closet mirror was cracked. During his walkthrough of the living


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018    Page 19 of 32
       room, kitchen, and hallway, Detective Santino did not see a cot, a sleeping bag,

       or anything to indicate that someone was staying there that day. In the

       bedroom, Detective Santino observed that there was not even a mattress or box

       spring and it did not appear to him that anyone was staying in the bedroom.

       Detective Santino indicated that the apartment appeared abandoned “[f]or all

       practical purposes.” Id. at 85.


[36]   We conclude that Barker has not demonstrated that he could contest the search

       of Funches’s apartment. See Peterson, 674 N.E.2d at 533 (observing in part that

       the apartment was leased to the defendant’s mother and sister, the mother paid

       the rent, and mother had the sole determination as to whether or not he could

       reside at the apartment, and concluding that the defendant lacked standing to

       challenge the search); Allen, 893 N.E.2d at 1099-1100 (holding that a defendant

       must show a legitimate right to the premises searched, that the defendant was a

       trespasser, and that he made no showing that he had a legitimate right to

       control and possess the residence, and concluding that the defendant lacked

       standing to challenge the searches of the residence).


[37]   Even assuming that Barker could challenge the initial searches of the

       apartment, we cannot say that reversal is warranted under either the Fourth

       Amendment or the Indiana Constitution. We first consider the Fourth

       Amendment.


       A. Fourth Amendment




       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 20 of 32
[38]   Barker argues an exigency in determining whether Funches was in the

       apartment and in need of assistance did not exist at the time that the police

       entered the apartment without a warrant. He cites Mincey v. Arizona, 437 U.S.

       385, 394 (1978), in which the United States Supreme Court held that there was

       no “murder scene exception” to the Fourth Amendment’s search warrant

       requirement. He asserts the admission of all of the evidence from the apartment

       and any derivative evidence was not harmless error.


[39]   Barker does not cite to the record or point to specific testimony or exhibits that

       were retrieved by the Highland Police after receiving information from the

       Chicago Police that Funches’s body had been tentatively identified. Without

       citation to the record, Barker asserts that the “erroneously admitted evidence

       includes all of the descriptions and photographs of the scene” and “the blood

       and DNA evidence from the scene.” Appellant’s Brief at 19. He argues that

       any evidence derivatively gained as a result of the information or leads obtained

       during the unlawful search should be barred from admission at trial under the

       fruit of the poisonous tree doctrine.


[40]   The State argues that the search was reasonable and justified by exigent

       circumstances and valid consent. The State also argues that, even if the trial

       court erred by admitting the photographs, the error was harmless.


[41]   The Fourth Amendment to the United States Constitution provides, in

       pertinent part: “[t]he right of people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures, shall not be


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 21 of 32
       violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a

       warrant, the State bears the burden to show that one of the well-delineated

       exceptions to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329,

       331 (Ind. 2016).


[42]   One well recognized exception to the warrant requirement is for an entry under

       emergency circumstances. Vitek v. State, 750 N.E.2d 346, 348-349 (Ind. 2001),

       reh’g denied. “It is not necessary for police to have a warrant to enter a residence

       when the circumstances suggest a reasonable belief that a person within the

       premises is in need of aid.” Id. at 349 (citing Stewart v. State, 688 N.E.2d 1254,

       1257 (Ind. 1997)). The Indiana Supreme Court has “recognized that there can

       be a reasonable belief that a person may be in need of aid within a premises

       when the occupant has been missing.” Id. “Most cases upholding this

       exception have found that a person’s absence, combined with other

       circumstances, have created the exigent circumstances necessary for a

       warrantless search.” Id. “Other courts have also recognized that warrantless

       searches may be appropriate to seek an occupant reliably reported missing.” Id.

       (citing 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 6.6(a) (1996) at 396;

       United States v. Presler, 610 F.2d 1206 (4th Cir. 1979) (upholding a warrantless

       search where the defendant’s landlady had not seen him for some time and an

       unusual odor was emanating from his room); State v. Blades, 225 Conn. 609, 626

       A.2d 273 (1993) (upholding warrantless search where victim’s relatives worried

       about her whereabouts and she had been involved in a troubled marriage and

       her mother believed her husband had harmed her)).

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 22 of 32
[43]   The record reveals that Officer Norris received a dispatch regarding a welfare

       check, one of the leasing agents told him that there were blood stains on some

       rolled-up carpet inside of the apartment, and the leasing agents mentioned to

       him that they had “peeked in and seen some things which then led them to

       believe that they should back out and call the police.” Transcript of

       Suppression Hearing Volume 2 at 162. We conclude that the initial entry into

       the apartment by police was not improper. See Vitek, 750 N.E.2d at 349

       (holding that the circumstances of the case supported the officer’s search of the

       defendant’s home). See also JOHN WESLEY HALL, JR., SEARCH AND SEIZURE

       1238 (4th ed. 2012) (“Entries are justified to look for missing persons.”) (citing

       People v. Wharton, 809 P.2d 290 (Cal. 1991), cert. denied, 502 U.S. 1038, 112 S.

       Ct. 887 (1992); Chaney v. State, 612 P.2d 269 (Okla. Crim. App. 1980), cert.

       denied, 450 U.S. 1025, 101 S. Ct. 1731 (1981)).


[44]   “Although the warrant requirement is relaxed somewhat where, as in this case,

       there is a legitimate missing persons claim, there is no unlimited ‘missing

       persons’ exception.” Vitek, 750 N.E.2d at 349. “Even in a missing persons

       case, there must be exigent circumstances to justify a warrantless search.” Id.

       See also WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE

       FOURTH AMENDMENT § 6.6(a) (5th ed. October 2017 Update) (“As to what may

       be done by the police or other public authorities once they are inside the

       premises, this must be assessed upon a case-by-case basis, taking into account

       the type of emergency which appeared to be present. . . . The officer’s post-

       entry conduct must be carefully limited to achieving the objective which

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 23 of 32
       justified the entry—the officer may do no more than is reasonably necessary to

       ascertain whether someone is in need of assistance and to provide that

       assistance.”).


[45]   The record reveals that the officers were not informed that the Chicago Police

       had tentatively identified the body as that belonging to Funches until ninety

       minutes to two hours after Detective Santino arrived at the apartment. We

       cannot say that some further investigation prior to being informed that a body

       was discovered was improper. See Wharton, 809 P.2d at 325 (“Because there

       existed the possibility that the victim was still alive, we cannot fault the officers’

       decision to investigate further.”).4


[46]   With respect to consent, “[c]onsent to search is valid when it is given

       voluntarily, voluntariness is a question of fact determined from the totality of

       the circumstances.” Garcia-Torres v. State, 949 N.E.2d 1229, 1237 (Ind. 2011).

       We observe that Heeringa testified that she had the authority to enter the

       apartment as an employee and that an addendum in the lease requires residents

       to agree that “at any time for pretty much any reason we’re allowed to go in

       their apartment” and “by any means that we see suitable.” Transcript of




       4
         In his statement of facts, Barker asserts that the CSI unit was processing the scene when Detective Santino
       received the notice from the Chicago Police regarding the discovery of the body. He points to a portion of
       the transcript of the suppression hearing at which Detective Santino indicated that the crime lab “was there
       and they were still processing it” when he received information about the body from the Chicago Police.
       Transcript of Suppression Hearing Volume 2 at 91. However, Barker later asserts, without citation to the
       record, in his argument section that Detective Santino “called in the CSI unit and had it process the
       apartment. This was all prior to getting a warrant and prior to receiving notification from the Chicago Police that
       [Funches’s] body had been found.” Appellant’s Brief at 16 (emphasis added).

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                               Page 24 of 32
       Suppression Hearing Volume 2 at 12. An addendum to the lease was signed by

       Funches and provides in part: “ACCESS. Resident shall allow Owner and his

       agents free access to the apartment at all reasonable times to exhibit, repair or

       inspect the same or for any other reasonable business purpose connected with

       the operation of the building.” State’s Suppression Hearing Exhibit 3.

       Heeringa also testified that taking time to check on the welfare of the tenants

       was a good business practice. Newton, the leasing consultant, testified that a

       welfare check was something they did upon request and that they did it a few

       times a year. Further, Officer Norris spoke with the apartment employees, and

       they gave him information as to the apartment that he needed to check. The

       leasing agents informed Officer Norris that “a female had not been seen or

       heard from in a while, so they were going to let [them] into the apartment, if we

       could have a welfare check on her.” Transcript of Suppression Hearing Volume

       2 at 162. When asked if she “let [the police] back into the apartment,”

       Heeringa answered: “I did.” Id. at 11. Under these circumstances, we

       conclude that the officers had consent to enter Funches’s apartment.


[47]   Even assuming the collection of evidence following the initial walkthrough was

       improper, admissions of evidence in violation of the Fourth Amendment are

       subject to harmless error analysis. Smock v. State, 766 N.E.2d 401, 407 (Ind. Ct.

       App. 2002) (citing Jackson v. State, 669 N.E.2d 744, 750 (Ind. Ct. App. 1996)).

       Harmless error occurs when the conviction is supported by substantial

       independent evidence of guilt which satisfies the reviewing court that there is no

       likelihood that the erroneously admitted evidence contributed to the conviction.


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 25 of 32
       Morales v. State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). Violations of the

       Fourth Amendment must be harmless beyond a reasonable doubt. Id. We

       must find that there is no substantial likelihood the error contributed to the

       verdict, or, in other words, that the error was unimportant in relation to

       everything else before the jury on the issue in question. Id.


[48]   Newton, a leasing consultant, testified without objection that she entered

       Funches’s apartment to check on her welfare and observed that the carpet was

       missing from the dining room and the hallway area, it had been ripped out, and

       there was rolled-up carpet in the living room. She testified that there was

       furniture located in various areas of the apartment where it should not have

       been, such as a dresser in the kitchen, and the apartment looked like it had been

       ransacked.


[49]   Pettigrew testified that she lived at the apartment complex and observed two

       men coming down the stairs with a bin on June 21, 2011, around 11:00 p.m.

       and recognized one of the men as Barker. She testified that she made eye

       contact with Barker, he “ducked his head real quick,” and “it troubled [her]

       spirit.” Trial Transcript Volume 3 at 186, 202. She stated that the men

       struggled with the bin and headed towards a green Caravan that Barker

       recognized as the same Caravan that Barker had driven previously. She also

       observed that the Caravan had two mattresses on top. She testified that she did

       not identify anyone in the photo lineups she was shown by the police “right

       then and there,” but she identified Barker as Funches’s boyfriend whom she

       saw that night. Id. at 192. On cross-examination, when asked if it “[d]idn’t

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 26 of 32
       look like” Barker on the photo lineup, she answered: “I wasn’t quite sure.

       Maybe I should say that. But I know it’s him now.” Id. at 196.


[50]   During cross-examination, Detective Santino indicated that Barker’s Illinois

       driver’s license, a traffic warning issued to Barker, a receipt for motor vehicle

       immobilization and/or impound vehicle with Barker’s name on it, and Barker’s

       application for a truck driving school, were found in the apartment. Defense

       counsel introduced and the court admitted these documents, all of which

       indicated Barker’s address as being in Chicago.


[51]   FBI Special Agent Peasley testified that he investigated identifying markers on

       the bin in which Funches’s body was found. He was able to locate the

       manufacturer of the tote in which Funches’s body was found and determined

       that totes with that UPC code were sold only at Walmart. Surveillance video

       and photos taken from the video on the evening of June 21, 2011, from the

       Walmart in Schererville were admitted. Highland Police Investigator Shaginaw

       testified that Barker and Barlow were seen in the Walmart video.


[52]   Highland Police Investigator Douglas Shaginaw testified that he investigated

       where the items found in the green Taurus were purchased. He retrieved a

       video from a True Value located in Chicago, determined that a vehicle arrived

       on the morning of June 22, 2011, recognized a person on the surveillance video

       as Barker, and learned that the person to Barker’s left in the video was Barlow.

       Investigator Shaginaw took photographs of certain pieces of merchandise inside

       the store, including Quickrete, blue and white handled scrub brushes, Liquid


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 27 of 32
       Fire, and a plastic bucket, which were all similar to the evidence that was

       collected from the Taurus. He also photographed a Fortress brand lock at the

       store. The court admitted a sales receipt from True Value, and Investigator

       Shaginaw testified that the prices on the receipt correlated to the prices of the

       items found in the Taurus as well as a price of $6.49 which correlated to the

       Fortress brand lock. He testified that the lock in the True Value was identical to

       the lock that was used to secure the garage which contained Funches’s body.


[53]   Sharon Pollock, a forensic DNA analyst employed by the Indiana State Police

       Laboratory, testified that the partial Y-STR DNA profile obtained from

       Funches’s fingernail clipping was consistent with the Y-STR DNA profile

       obtained from Barker.5


[54]   In light of the evidence, particularly the evidence placing Barker at the

       apartment complex on the day of the murder, of him moving a bin out of the

       apartment that night, and of the purchases including a bin and a Fortress brand

       lock that were the same bin and lock later discovered at the scene where

       Funches’s body was found, we conclude that any error in the admission of

       evidence obtained from the apartment was harmless. We cannot say that

       Barker’s rights under the Fourth Amendment were violated.




       5
        Specifically, Pollock testified that the partial Y-STR DNA profile obtained from the clipping was
       “consistent with the Y-STR DNA profile obtained from Isiah Barker and is not consistent with the Y-STR
       DNA profile obtained from Octavius Barlow. Therefore, Isiah Barker and all of his male paternal relatives
       cannot be excluded as potential Y-STR DNA contributors to the sample.” Trial Transcript Volume 6 at 43.

       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018                      Page 28 of 32
       B. Article 1, Section 11


[55]   Article 1, Section 11 of the Indiana Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, 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 person or thing to be
               seized.


[56]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson

       v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11

       claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d

       1200, 1205-1206 (Ind. 2008), reh’g denied). “The focus of the exclusionary rule

       under the Indiana Constitution is the reasonableness of police conduct.”

       Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). “We consider three factors

       when evaluating reasonableness: ‘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.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield

       v. State, 824 N.E.2d 356, 361 (Ind. 2005)).


[57]   Barker argues that the degree of concern, suspicion, or knowledge that the

       police had was not terribly strong and that the fact that Funches was not in the

       apartment rendered the need to enter the apartment not strong. He contends
       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 29 of 32
       there was no indication that something illegal was occurring at that time in the

       apartment and that the degree of intrusion was significant because law

       enforcement repeatedly entered the apartment. He further asserts that law

       enforcement’s needs were minimal. The State maintains that the degree of

       suspicion was significant, the degree of intrusion was reasonable, and the extent

       of law enforcement needs indicated that the entry into the apartment was

       reasonable.


[58]   With respect to the degree of concern, suspicion, or knowledge that a violation

       had occurred, Officer Norris received a dispatch regarding a welfare check and

       spoke with the apartment employees who told him that they saw things which

       led them to believe they should back out and call the police. One of the leasing

       agents also told Officer Norris that there were blood stains on some rolled-up

       carpet inside the apartment. As for the degree of intrusion, we acknowledge

       that the warrantless entry of a home is generally considered a large intrusion.

       See Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct. App. 2010) (“It is well

       established that ‘[h]ouses and premises of citizens receive the highest

       protection’ under our constitution.”) (quoting Moran v. State, 644 N.E.2d 536,

       540 (Ind. 1994), reh’g denied, abrogated on other grounds by Litchfield, 824 N.E.2d

       356). In this case, however, the officers did not break down the door and barge

       into the home. On the contrary, the police were contacted by a leasing agent at

       the apartment complex regarding a welfare check and the leasing agent opened

       the door. The officers walked through the apartment, Funches was listed on the

       lease as the only resident, and Detective Santino did not see a cot, a sleeping


       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 30 of 32
       bag, a mattress, or anything to indicate that someone was staying in the

       apartment. We also observe that Detective Santino stated that the apartment

       appeared abandoned “[f]or all practical purposes.” Transcript of Suppression

       Hearing Volume 2 at 85. Under the circumstances, the degree of intrusion was

       not high.


[59]   With respect to the third factor listed above, we observe that police officers have

       a caretaking function as well as an investigatory function. See Montgomery v.

       State, 904 N.E.2d 374, 382 (Ind. Ct. App. 2009), trans. denied. “It is because of

       concerns among citizens about safety, security, and protection that some

       intrusions upon privacy are tolerated, so long as they are reasonably aimed

       toward those concerns.” Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). The

       extent of law enforcement needs was strong given the circumstances leading to

       the search including the welfare check for Funches. Under the totality of the

       circumstances, we conclude that the search was reasonable and did not violate

       Barker’s rights under Article 1, Section 11 of the Indiana Constitution.


                                                    Conclusion

[60]   We conclude that reversal is not warranted under the Fourth Amendment of

       the United States Constitution or Article 1, Section 11 of the Indiana

       Constitution.


[61]   For the foregoing reasons, we affirm Barker’s convictions.


[62]   Affirmed.



       Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 31 of 32
Najam, J., and Kirsch, J., concur.




Court of Appeals of Indiana | Opinion 45A03-1701-CR-123 |March 19, 2018   Page 32 of 32
