                                                                        FILED
                                                                    Jun 28 2018, 7:37 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                         Curtis T. Hill, Jr.
KEATING & LAPLANTE, LLP                                    Attorney General of Indiana
Evansville, Indiana                                        Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin Shawn Carter,                                        June 28, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           17A-CR-3024
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1612-F2-7290



Bailey, Judge.




Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                           Page 1 of 18
                                                   Case Summary
[1]   A jury convicted Kevin Shawn Carter (“Carter”) of Dealing in a Narcotic Drug,

      as a Level 2 felony,1 and Dealing in Methamphetamine, as a Level 2 felony.2

      Thereafter, Carter admitted to being a habitual offender.3 Carter now appeals.


[2]   We affirm.



                                                      Issues
[3]   Carter presents the following two restated issues:


                  I.          Whether the trial court abused its discretion by admitting
                              evidence obtained from a search of a cell phone because
                              the underlying warrant was impermissibly general,
                              allowing an exploratory search; and


                  II.         Whether the trial court committed fundamental error by
                              admitting testimony from an officer who opined that the
                              amount of heroin seized was a dealer-level quantity.


                                  Facts and Procedural History                         4




      1
          Ind. Code § 35-48-4-1(a)(2), -1(e)(1).
      2
          I.C. § 35-48-4-1.1(a)(2), -1.1(e)(1).
      3
          I.C. § 35-50-2-8.
      4
       We heard oral argument on this case on June 7, 2018, at Ivy Tech Community College in Sellersburg,
      Indiana. We thank Ivy Tech and its guests from the Sherman Minton American Inn of Court for their
      hospitality, and we thank counsel for their advocacy.

      Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                            Page 2 of 18
[4]   After seeing a Ford Mustang cross the center line several times, Deputy

      Brandon Mattingly (“Deputy Mattingly”) of the Vanderburgh County Sheriff’s

      Department conducted a traffic stop. Deputy Mattingly approached the vehicle

      and observed the front passenger—Carter—making furtive movements and

      appearing to place an item under his seat. Deputy Mattingly then spoke with

      the driver, Tiffani Colschen (“Colschen”). At some point, Carter stated that he

      co-owned the vehicle, and both Colschen and Carter consented to a vehicle

      search. During the ensuing search, Deputy Mattingly found a bag between the

      front seats. Inside, there was a container holding a syringe and a spoon. Below

      the container there were several plastic bags that appeared to contain drugs;

      subsequent lab testing revealed that the bags contained, in the aggregate,

      approximately 205 grams of methamphetamine and approximately 27.5 grams

      of heroin. Carter and Colschen were arrested and their cell phones were

      confiscated. The police later obtained a warrant to search the cell phones.


[5]   Carter was brought to trial on charges of Dealing in a Narcotic Drug and

      Dealing in Methamphetamine, both as Level 2 felonies. The State also alleged

      that Carter was a habitual offender. Before the trial began, Carter moved to

      suppress evidence obtained from the search of his cell phone; the trial court

      denied Carter’s motion. At trial, Carter objected to the admission of cell phone

      evidence, and the court held a conference outside the presence of the jury. At

      the conference, the State tendered an exhibit containing several pages of text

      messages. The court determined that eight messages were admissible, and that,

      among the eight, any messages from third parties were admissible only to give


      Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018       Page 3 of 18
      context to Carter’s messages. The State prepared a redacted exhibit containing

      the eight admissible text messages. See State’s Ex. 23-1. Those messages—later

      admitted with a limiting instruction—indicated that Carter met with three

      individuals in the hours preceding the traffic stop, and had instructed one

      individual to pull around to the back, behind his Mustang, to avoid being seen.


[6]   The State’s evidence also included testimony from Detective James Budde

      (“Detective Budde”), who was assigned to the local drug task force and had

      encountered heroin and methamphetamine hundreds of times as a police

      officer. Detective Budde opined that the quantity of heroin seized was “typical

      of a dealer amount,” to which Carter did not object. Tr. Vol. IV at 224.


[7]   The jury found Carter guilty of the dealing counts, and Carter admitted to being

      a habitual offender. Following a sentencing hearing, the trial court imposed an

      aggregate sentence of thirty-six years in the Indiana Department of Correction.


[8]   Carter now appeals.



                                  Discussion and Decision
                                         Cell Phone Records
[9]   Carter frames his argument as a challenge to the denial of his motion to

      suppress evidence, but Carter did not seek interlocutory review of that denial.

      We therefore treat Carter’s argument as a challenge to the admission of the

      evidence. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). “The trial

      court has broad discretion to rule on the admissibility of evidence.” Thomas v.

      Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018       Page 4 of 18
       State, 81 N.E.3d 621, 624 (Ind. 2017). Ordinarily, we review evidentiary rulings

       for an abuse of discretion, evaluating whether the court’s ruling was “clearly

       against the logic and effect of the facts and circumstances.” Id. “However,

       when a challenge . . . is predicated on the constitutionality of the search or

       seizure of evidence, it raises a question of law that we review de novo.” Id.


[10]   Both the Fourth Amendment to the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution proscribe unreasonable searches of

       “persons, houses, papers, and effects.”5 Moreover, under the Fourth

       Amendment, “reasonableness generally requires the obtaining of a judicial

       warrant.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995).


[11]   There are a few “specifically established and well-delineated exceptions” to the

       warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). Among

       those exceptions “is a search incident to a lawful arrest,” Arizona v. Gant, 556

       U.S. 332, 338 (2009), whereby the Fourth Amendment permits “a warrantless

       search of the arrestee’s person and the area ‘within his immediate control,’”

       Davis v. United States, 564 U.S. 229, 232 (2011) (quoting Chimel v. California, 395

       U.S. 752, 763 (1969)). Under this exception, officers generally may search the




       5
         The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers,
       and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
       but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be
       searched, and the persons or things to be seized.”
       Using nearly identical language, 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.”

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                                   Page 5 of 18
       containers they encounter. See United States v. Robinson, 414 U.S. 218, 236

       (1973) (determining that the Fourth Amendment permitted a search of a

       package of cigarettes that was found during a search incident to arrest); cf.

       Garcia v. State, 47 N.E.3d 1196, 1205 (Ind. 2016) (“Under Article 1, Section 11,

       opening a container found on the person of an arrestee in the course of a search

       incident to [a]valid arrest will not automatically be deemed unreasonable.”).


[12]   However, as the United States Supreme Court noted in Riley v. California, “[a]

       search of the information on a cell phone bears little resemblance to

       the . . . brief physical search” of a container found on an arrestee’s person. 134

       S. Ct. 2473, 2485 (2014). Namely, modern cell phones—as a “particular

       category of effects” subject to Fourth Amendment protection, id. at 2485—

       “implicate privacy concerns far beyond those implicated by the search of a

       cigarette pack, a wallet, or a purse.” Id. at 2488-89. “Indeed, a cell phone

       search would typically expose to the government far more than the most

       exhaustive search of a house.” Id. at 2491 (emphasis removed). In view of

       these privacy concerns, the Riley Court concluded that “officers must generally

       secure a warrant” before searching a cell phone. Id. at 2485.


[13]   Recently, the United States Supreme Court addressed similar privacy concerns

       in deciding Carpenter v. United States, No. 16-402, 585 U.S. ____, 2018 WL

       3073916 (June 22, 2018). There, law enforcement had obtained, without a

       warrant, location-related data from an individual’s wireless carrier’s cell-site

       record that the cell phone had logged “by dint of its operation.” Id. at *12. The

       Court rejected arguments that the information was rendered less private

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018         Page 6 of 18
       because it was part of business records or because, by using the phone, the

       individual had technically disclosed the location information to the wireless

       carrier. Id. at *11-12. The Court reflected on the “unique nature of cell phone

       location records,” id. at *9, and ultimately concluded “that the Government

       must generally obtain a warrant supported by probable cause before acquiring

       such records,” id. at * 13.


[14]   Here, unlike in Riley and Carpenter, the police secured a warrant before

       searching the cell phone data. Thus, we must look beyond these cases to

       resolve the issue Carter presents—which is whether the warrant was defective,

       rendering the evidence unconstitutionally obtained and, thereby, inadmissible.


                                               Probable Cause
[15]   As an initial matter, for a valid warrant to issue, the police must first set forth

       probable cause to conduct the search.6 U.S. Const. amend. IV; Ind. Const. art.

       1, § 11; I.C. §§ 35-33-5-2, -8 (codifying constitutional principles and establishing

       requirements for affidavits or other testimony in support of search warrants).

       Probable cause is a “fluid concept incapable of precise definition . . . [and] is to

       be decided based on the facts of each case.” Figert v. State, 686 N.E.2d 827, 830

       (Ind. 1997). In determining whether a police affidavit sets forth probable cause

       “to issue a search warrant, ‘[t]he task of the issuing magistrate is simply to make




       6
        At oral argument, Carter conceded that there was probable cause to issue a search warrant. However, we
       must engage in some discussion of probable cause, as the topic informs other aspects of our analysis.

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                            Page 7 of 18
       a practical, common-sense decision whether, given all the circumstances set

       forth in the affidavit . . . there is a fair probability that contraband or evidence of

       a crime will be found in a particular place.’” State v. Spillers, 847 N.E.2d 949,

       952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).7 Put

       differently, the central question in a probable cause determination is whether

       the affidavit presents facts, together with reasonable inferences, demonstrating a

       sufficient nexus between the suspected criminal activity and the specific place to

       be searched. See Eaton v. State, 889 N.E.2d 297, 300 (Ind. 2008); Figert, 686

       N.E.2d at 830 (determining that a warrant to search a residence was not

       supported by probable cause where the underlying affidavit indicated that drug

       sales occurred in two residences that were merely nearby the residence to be

       searched, and that unidentified individuals had frequented all three residences).


[16]   Here, law enforcement sought a warrant to search the cell phone for evidence of

       the crime of dealing methamphetamine. As to suspected criminal activity, the

       affiant stated that the police found a baggie inside Carter’s co-owned vehicle

       that contained a substance field-tested to be methamphetamine, with a field

       weight of 207 grams. The affiant also stated that, based on training and

       experience, methamphetamine is typically purchased in one-gram quantities,




       7
         Upon a challenge to whether probable cause supported the issuance of a search warrant, “[t]he duty of the
       reviewing court is to determine whether the magistrate had a ‘substantial basis’ for concluding that probable
       cause existed.” Id. at 953 (quoting Gates, 462 U.S. at 238-39). There is a substantial basis when “reasonable
       inferences drawn from the totality of the evidence support the determination of probable cause.” Jackson v.
       State, 908 N.E.2d 1140, 1142 (Ind. 2009). Appellate courts review de novo whether a substantial basis
       supported the determination of probable cause, Spillers, 847 N.E.2d at 953, while affording deference to the
       magistrate’s decision to issue the warrant. McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018).

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                                 Page 8 of 18
       and that the quantity in the vehicle was consistent with dealing activity. The

       affiant further stated that another baggie in the vehicle contained an amount of

       heroin consistent with drug dealing. As to the cell phone, the affidavit stated

       that the phone was recovered from Carter, and that those involved in drug

       activity primarily use cell phones and electronic devices to communicate with

       one another through calls, text messages, and applications such as Facebook.


[17]   In Eaton, law enforcement had obtained evidence that the defendant was

       involved in drug-trafficking activity taking place at a muffler shop. 889 N.E.2d

       at 299. In the affidavit in support of a search warrant for the defendant’s home,

       the affiant set forth factual background regarding the defendant’s connection to

       the drug trafficking. Id. The affiant also “stated that drug traffickers commonly

       keep U.S. currency within quick access and maintain records in a variety of

       forms including ledgers, computers, cell phones, pagers, phone bills, and wire

       transfer receipts.” Id. at 300 (internal quotation marks omitted). It does not

       appear that the affiant specifically stated that drug traffickers typically kept such

       records at their residences. See id. Nonetheless, in resolving Eaton, our supreme

       court upheld the underlying probable cause determination, concluding that the

       affidavit presented “facts showing that the defendant was involved in drug

       trafficking” along with “facts and reasonable inferences establishing a fair

       probability that records and equipment related to such drug trafficking were

       likely to be found in the defendant’s home.” Id. In so concluding, the Court

       observed that “other courts ha[d] recognized that it is reasonable to believe that

       drug dealers keep evidence of their activities in their residences.” Id.


       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018          Page 9 of 18
[18]   Examining the instant case in light of Eaton, here, the supporting affidavit even

       more directly set forth the nexus between the asserted criminal activity—

       dealing methamphetamine—and the place to be searched—the cell phone,

       through which dealers typically communicate concerning their illegal activity.

       Thus, the affidavit provided a substantial basis for determining that probable

       cause existed to support the issuance of a warrant to search the phone. Yet,

       underlying probable cause is not the only facet of a constitutional warrant.


                                                  Particularity
[19]   In addition to requiring probable cause, both the United States Constitution and

       the Indiana Constitution provide that a warrant must contain a particular

       description of the place to be searched and the persons or things to be seized.

       U.S. Const. amend. IV; Ind. Const. art. 1, § 11. This particularity requirement

       “ensures that the search will be carefully tailored to its justifications, and will

       not take on the character of the wide-ranging exploratory searches the Framers

       intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). Indeed, the

       requirement aims to prevent “a general, exploratory rummaging in a person’s

       belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).


[20]   Although the warrant must describe “with some specificity” where officers are

       to search and what they are to seize, “there is no requirement that there be an

       exact description.” Overstreet v. State, 783 N.E.2d 1140, 1158 (Ind. 2003).

       Nonetheless, the warrant must be specific enough so that officers can, “with

       reasonable effort,” ascertain the place to be searched and the items to be seized.


       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018          Page 10 of 18
       Steele v. United States, 267 U.S. 498, 503 (1925). This requirement “prevents the

       seizure of one thing under a warrant describing another. As to what is to be

       taken, nothing is left to the discretion of the officer executing the warrant.”

       Marron v. United States, 275 U.S. 192, 198 (1927); see also Griffith v. State, 59

       N.E.3d 947, 958 (Ind. 2016) (observing that a sufficient description avoids

       giving the police unbridled discretion). Ultimately, the description in a search

       warrant should “‘be as particular as circumstances permit.’” State v. Foy, 862

       N.E.2d 1219, 1227 (Ind. Ct. App. 2007) (quoting United States v. Lievertz, 247 F.

       Supp. 2d 1052, 1062 (S.D. Ind. 2002)). Moreover, to satisfy the particularity

       requirement, it is permissible if a warrant incorporates by reference certain

       supporting documents—such as the probable cause affidavit—that collectively

       “serv[e] to identify the scope of . . . items that could properly be seized.”

       Membres v. State, 889 N.E.2d 265, 276 (Ind. 2008).


[21]   Here, the warrant authorized searching the phone for:


               fruits, instrumentalities and evidence pertaining to the crime(s) of
               DEALING, POSSESSION and/or CONSPIRACY TO
               COMMIT DEALING OR POSSESSION OF
               METHAMPHETAMINE, as more particularly described as
               follows: [] Permission to search the above described phone for
               any information relating to calls, messages, including Facebook
               messages and accounts, and all information including but not
               limited to photographs, images, emails, letters, applications, and
               folders as well as any messages that may be stored on the phone
               that would indicate the identity of the phone’s owner/user and
               permission to view and copy said information if deemed
               necessary for preservation.



       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018           Page 11 of 18
       Pre-trial Hearing Exhibit 1 (emphasis added).


[22]   Carter asserts that the warrant authorized a broad search of his device for all

       information that might supply indicia of ownership, rendering the warrant an

       impermissible general warrant. Carter points out that the police extracted “all

       the information on the cell phone,” thereby generating “a document of roughly

       a thousand pages, which was then analyzed for criminal activity.” Appellant’s

       Br. at 16-17. Directing our attention to the privacy concerns articulated in

       Riley, Carter essentially argues that a warrant is unconstitutionally general

       where it permits law enforcement to review all the information on a cell phone

       to look for indicia of identity of the phone’s owner. 8


[23]   However, the warrant specifically described the place law enforcement could

       search—the phone recovered from Carter—and specifically described what law

       enforcement could search for—(1) “any information relating to calls, messages,

       including Facebook messages and accounts,” and (2) “all information . . . that

       would indicate the identity of the phone’s owner/user.” Pre-trial Hearing

       Exhibit 1. Moreover, the first clause permitting the search for calls and

       messages enjoys a close nexus to the probable cause that justified issuing the

       search warrant—which is that Carter was a suspected drug dealer, and drug




       8
         Carter also relies on Ogburn v. State, 53 N.E.3d 464 (Ind. Ct. App. 2016), trans. denied, but that case did not
       involve an insufficiently particular search warrant. Rather, in Ogburn, this Court determined that a warrant
       was not supported by probable cause and that, in the alternative, the ensuing search “clearly exceeded the
       scope of the warrant.” 53 N.E.3d at 474. To the extent Ogburn comments on particularity, we regard its
       statements as dicta. See Koske v. Townsend Eng’g Co., 551 N.E.2d 437, 443 (Ind. 1990) (“[S]tatements not
       necessary in the determination of the issues presented . . . are not binding and do not become the law.”).

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                                   Page 12 of 18
       dealers use cell phones to communicate with others involved in illicit drug

       activity. See Eaton, 889 N.E.2d at 300. Thus, this aspect of the search warrant

       was “tailored to its justifications.” Maryland, 480 U.S. at 84.


[24]   In carrying out the search, law enforcement did extract more than one thousand

       pages of information using a “logical extraction” device that created an “auto

       generated” report of the file architecture on the phone. Tr. Vol. IV at 142-43.

       Although Carter draws our attention to the quantity of data extracted, he has

       not demonstrated that there was any other way to practically conduct the

       permitted search. As the State observes, “[a] great deal of other information

       will likely have to be sifted through in order to find the relevant information—

       similar to looking through drawers in a home or office file cabinet for specific

       files or letters that are relevant to the investigation.” Appellee’s Br. at 15.

       Ultimately, we discern no indication that law enforcement had the ability to

       determine, ex ante, that certain pages could not have contained any of the

       information sought. See United States v. Stabile, 633 F.3d 219, 238 (3d Cir. 2011)

       (“‘[A] computer search may be as extensive as reasonably required to locate the

       items described in the warrant’ based on probable cause.” (quoting United States

       v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)); Wheeler v. State, 135 A.3d

       282, 301 (Del. 2016) (“Some irrelevant files may have to be at least cursorily

       perused to determine whether they are within the authorized search ambit.”).


[25]   With respect to Carter’s assertion that the second clause was impermissibly

       general—that is, the clause permitting a search for all indicia of ownership of

       the phone—the challenged evidence consisted only of text messages. Assuming

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018          Page 13 of 18
       arguendo that the second clause was insufficiently particular, even where a

       portion of a search warrant is too general, the Indiana Supreme Court has

       explained that “[t]he infirmity . . . does not doom the entire warrant.” Warren

       v. State, 760 N.E.2d 608, 610 (Ind. 2002). Rather, the infirmity requires

       “only . . . suppression of the evidence seized pursuant to that part of the

       warrant but not the suppression of the evidence obtained pursuant to the valid

       specific portions of the warrant.” Id. (citing United States v. Greene, 250 F.3d

       471, 477 (6th Cir. 2001) and United States v. Reed, 726 F.2d 339, 342 (7th Cir.

       1984)); see also United States v. Galpin, 720 F.3d 436, 448-50 (2d Cir. 2013).

       Here, the challenged text messages were seized pursuant to the other, specific

       portion of the warrant that authorized searching the phone for messages.9


[26]   Based on the foregoing, we conclude that the challenged text messages were not

       seized pursuant to an impermissible general warrant. Therefore, the court did

       not abuse its discretion by admitting the text messages over Carter’s objection.


                                                Reasonableness
[27]   Carter briefly argues that the search was unreasonable under Article 1, Section

       11 of the Indiana Constitution. Under the Indiana Constitution, the legality of



       9
         At oral argument, there was some discussion about the possibility of officers coming across evidence of a
       different crime while combing through electronic files pursuant to a warrant. Because the case before us does
       not present such facts, our opinion does not extend to that hypothetical situation. See Snyder v. King, 958
       N.E.2d 764, 786 (Ind. 2011) (observing that courts should decide cases “only on the specific facts of the
       particular case and not on hypothetical situations”). Nonetheless, we expect that existing caselaw provides
       ample analogues should this issue arise in the electronic context. See, e.g., Overstreet, 783 N.E.2d at 1160
       (determining that the plain view doctrine permitted the seizure of evidence that officers came across while
       carrying out a valid search warrant).

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                               Page 14 of 18
       a search “turns on an evaluation of the reasonableness of the police conduct

       under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359

       (Ind. 2005). In evaluating the reasonableness of a search, we balance three

       factors: (1) the degree of suspicion of unlawful activity; (2) the degree of

       intrusion the method of the search imposes on the citizen’s ordinary activities;

       and (3) the extent of law enforcement needs. Id. at 361.


[28]   Here, the search did not greatly intrude upon Carter’s activities. Nonetheless,

       the search was intrusive in nature, as it involved searching a personal cell

       phone—a device that often contains highly personal information. However,

       law enforcement had located contraband in Carter’s vehicle—specifically, a

       quantity of methamphetamine with a street value around $20,000 and a

       quantity of heroin with a street value between $9,000 and $12,000. Thus, law

       enforcement had a high degree of suspicion of unlawful activity. Furthermore,

       searching the phone advanced law enforcement needs related to identifying

       drug-dealing activity and protecting the community from the hazards of

       methamphetamine and heroin. On balance, we conclude that the search was

       reasonable under the totality of the circumstances.


                                          Opinion Testimony
[29]   Carter argues that the trial court abused its discretion by admitting testimony

       from Detective Budde, who opined that the quantity of heroin seized was

       “typical of a dealer amount.” Tr. Vol. IV at 224. Because Carter failed to raise

       a contemporaneous objection, Carter’s only available argument with respect to


       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018         Page 15 of 18
       admission of the testimony is that the admission constituted fundamental

       error.10 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Yet, Carter

       declined to argue fundamental error, despite the opportunity to do so.11 Thus,

       Carter has waived any fundamental-error argument. See Ferguson v. State, 40

       N.E.3d 954, 957 (Ind. Ct. App. 2015), trans. denied. Waiver notwithstanding,

       Carter argues that Detective Budde’s testimony was inadmissible because it was

       inaccurate and contrary to law.12 To the extent Carter’s argument involves

       statutory interpretation, we interpret statutes de novo. Johnson v. State, 87

       N.E.3d 471, 472 (Ind. 2017).


[30]   Carter directs us to Indiana Code Section 35-48-4-1(a)(2), which criminalizes

       the possession of heroin with the intent to deliver the drug. Under the statutory

       framework, an individual can be convicted of dealing under either of two

       circumstances: (1) if the amount possessed is at least twenty-eight grams or (2)

       “there is evidence in addition to the weight of the drug that the person intended

       to . . . deliver . . . the drug.” I.C. § 35-48-4-1(b). Here, the amount of heroin




       10
         In his Appellant’s Brief, Carter states that the evidence was admitted over his objection. However, the
       record indicates that no objection was made at the time the evidence was admitted, and it does not appear
       that the trial court entered a continuing objection that would have preserved the issue. See, e.g., Kindred v.
       State, 524 N.E.2d 279, 292 (Ind. 1988).
       11
         In its brief, the State pointed out that Carter had failed to raise a contemporaneous objection and had not
       argued fundamental error on appeal. Thereafter, Carter did not argue fundamental error in his Reply Brief.
       12
         In a footnote, Carter briefly asserts that Detective Budde was not qualified to give opinion testimony as a
       skilled witness pursuant to Indiana Evidence Rule 701. At oral argument, however, Carter conceded that
       Detective Budde was qualified to give the opinion testimony, but maintained that the legislature preempted
       the particular type of opinion testimony due to the framework of the statute at issue.

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                                  Page 16 of 18
       was less than twenty-eight grams, and so a conviction required additional

       evidence of Carter’s intent to deliver the heroin. See id.


[31]   According to Carter, the very existence of the twenty-eight-gram presumption

       precludes the admission of testimony indicating that less heroin could constitute

       a “dealer quantity” of heroin. He argues that “[t]he legislature has made a

       decision about the quantity of drug which may be interpreted as presumptive of

       dealing, and the officer has rendered an opinion that is contrary to what the

       legislature found.” Reply Br. at 6. However, we conclude that the statute does

       not operate to bar admission of probative evidence related to the defendant’s

       intent to deal the drug. Rather, the statute eliminates the State’s burden of

       presenting additional intent evidence when there is evidence that the drug

       weighed at least twenty-eight grams. Put another way, once the State has

       introduced evidence that the defendant possessed the statutory amount, there is

       sufficient evidence to establish the defendant’s intent to deliver the drug. Yet,

       the State is not foreclosed from presenting additional evidence of intent, and the

       statutory framework does not otherwise affect the admissibility of evidence of

       intent where, as here, the quantity possessed is less than twenty-eight grams.13




       13
         Moreover, it is not as though the weight and weight-based opinion testimony constituted the only evidence
       indicative of Carter’s intent to deliver the heroin. Rather, the evidence indicated that Carter possessed
       multiple types of drugs with a collective street value around $30,000, and that he had met with several
       individuals prior to the traffic stop, at one point instructing an individual to covertly pull behind his vehicle.

       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018                                   Page 17 of 18
[32]   Thus, we conclude that the trial court did not err by admitting the challenged

       testimony.



                                                Conclusion
[33]   The court did not abuse its discretion by admitting text messages procured from

       the search of Carter’s cell phone; the search was conducted pursuant to a valid

       search warrant and the search was reasonable under the totality of the

       circumstances. The court did not err in admitting Detective Budde’s testimony.


[34]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018        Page 18 of 18
