 Pursuant to Ind.Appellate Rule 65(D),


                                                                 FILED
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
 establishing the defense of res judicata,                    Nov 01 2012, 9:15 am
 collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

JEFF SHOULDERS                                      GREGORY F. ZOELLER
Law Offices of Steven K. Deig, LLC                  Attorney General of Indiana
Evansville, Indiana
                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFREY S. HEIRONIMUS,                              )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 82A01-1204-CR-152
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                           The Honorable Carl A. Heldt, Judge
                            Cause No. 82C01-1105-FB-654


                                         November 1, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                    Case Summary

       Jeffrey S. Heironimus appeals the trial court’s admission of evidence of witness

identifications made of him after police officers’ warrantless entry into an accomplice’s

residence. He contends that the entry was an unconstitutional search and seizure, and any

subsequent identifications made as a result of it should be excluded from evidence. We

find that it was not an abuse of discretion to admit this evidence because Heironimus

does not have standing to assert a Fourth Amendment violation. He had no legitimate

expectation of privacy in the house, as it was not his, nor was he an overnight guest. We

therefore affirm.

                            Facts and Procedural History

       On May 26, 2011, Heironimus robbed the First Federal Savings Bank in

Evansville wearing a dark-colored hooded sweatshirt and carrying a backpack.

Heironimus insinuated that he had a gun by placing his hand in his backpack and took

over $3900 in cash, which included $200 in recorded bait money. The bank’s alarm

service immediately notified police. Witnesses Bradford Talley and James Hendrix saw

a man with a dark hooded sweatshirt and a backpack leave the bank, walk quickly to an

alley behind the bank, and get into a red pickup truck that had quickly pulled into the

alley. The truck was described as a red Ford F-250 extended cab truck with damage on

both sides. Tr. p. 56.

       Fourteen minutes after receiving the alert from the bank, Evansville Police

Department Sergeant Brian Hildebrandt saw a truck matching the given description

parked across the street from 1000 North Third Avenue, which was one mile from the

                                           2
bank. The truck’s headlights were on, the keys were in the ignition, and the exhaust pipe

was still warm. Sergeant Hildebrandt called for a canine unit, and a police dog arrived

that was certified and trained to detect ground disturbances and human odor. The dog

sniffed the outside of the truck and followed the scent to the back door of 1000 North

Third Avenue. Despite the officer’s attempt to get the dog to move on, the dog returned

to the back door of the house and would not leave. The officer and the dog stayed at the

back door to ensure that no one could leave that way.

      More officers arrived at the scene, and based on their belief that the robbery

suspects were in the house and might be armed, they decided to secure and clear the

house. Officers knocked on the front door and were let inside by a resident of the home,

Billy Hack. The officers cleared the house, bringing the approximately seven occupants

outside, but did not otherwise search the house. Heironimus and Vincent Driskell, the

man who drove the truck away from the robbery, were two of the occupants brought

outside. They were handcuffed and detained for show-up identifications.

      Sergeant Hildebrandt brought Talley and Hendrix to the scene, and Talley

identified Heironimus as the passenger of the red truck.      Both Talley and Hendrix

identified Driskell as the driver. The bank teller was also brought to the scene and saw

that Heironimus matched the physical description of the robber; she later saw

Heironimus’s photograph on television and definitively recognized him as the robber.

      Officers later obtained a search warrant for the house and found $1500 in cash in a

room upstairs. The bait money was also surrendered to the police by Driskell’s wife,

Melissa Hall, the day after the robbery. Additionally, police searched the red truck,

                                            3
finding the registration indicating it belonged to Driskell. An officer with previous

knowledge of the truck also confirmed that the truck was Driskell’s.

       The State charged Heironimus with Class C felony robbery with a habitual-

offender enhancement.       Heironimus filed a motion to suppress the identification

evidence, arguing that the identifications were the fruits of an illegal entry by police into

the home. The trial court conducted a hearing, and the State argued that the house was

not Heironimus’s residence. The trial court denied the motion to suppress. A jury trial

was held, and Heironimus was found guilty. Heironimus was sentenced to eight years at

the Department of Correction, with an additional ten years for the habitual-offender

enhancement, for a total executed sentence of eighteen years.

       Heironimus now appeals.

                                    Discussion and Decision

       Heironimus contends that the trial court abused its discretion by admitting the

witness identifications at trial.     A trial court has broad discretion in ruling on the

admission or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct.

App. 2009). The trial court’s ruling on the admissibility of evidence will be disturbed on

review only upon a showing of an abuse of discretion. Id. An abuse of discretion occurs

when the trial court’s ruling is clearly against the logic, facts, and circumstances

presented. Id. Error may not be predicated upon a ruling that admits or excludes

evidence unless a substantial right of the party is affected. Ind. Evidence Rule 103.

       Heironimus contends that the trial court abused its discretion in admitting the

identification evidence because it was the product of an unconstitutional search, in

                                              4
violation of his Fourth Amendment rights.1 The Fourth Amendment to the United States

Constitution provides that

       “[t]he 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
       person or things to be seized.”

The Fourth Amendment is made applicable to the States via the Due Process Clause of

the Fourteenth Amendment.          Mapp v. Ohio, 367 U.S. 643, 656 (1961).              Evidence

obtained in violation of a defendant’s Fourth Amendment rights may not be introduced

against him at trial. Id. at 648-60.

       In order to assert that a police entry into a home is unlawful and therefore a

violation of the Fourth Amendment, the defendant must have standing, which requires a

legitimate expectation of privacy in the premises. Arcuri v. State, 775 N.E.2d 1095, 1100

(Ind. Ct. App. 2002), trans. denied. One way to have that legitimate expectation of

privacy is for the defendant to have control over or ownership of the premises searched.

Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996). An overnight guest can also have a

“legitimate expectation of privacy in his host’s home and may claim the protection of the

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

premises may not.” Matson v. State, 844 N.E.2d 566, 570 (Ind. Ct. App. 2006) (citing

Minnesota v. Olson, 495 U.S. 91, 98 (1990); Hanna v. State, 726 N.E.2d 384, 390 n.4

(Ind. Ct. App. 2000)), trans. denied.



       1
          Heironimus makes no claim under Article 1, Section 11 of the Indiana Constitution and has
therefore waived review under that provision.
                                                5
       In this case, the evidence shows that Heironimus did not live at 1000 North Third

Avenue, nor was he an overnight guest at the time of the bank robbery.                Rather,

Heironimus was merely present at the premises with the consent of the owner, so he does

not have standing to challenge the constitutionality of the warrantless entry. Heironimus

did give 1000 North Third Avenue as his address in his unsworn claim when he was

booked into jail, Defense’s Ex. A, but the State disputed that fact at the suppression

hearing. Supp. Hr’g Tr. p. 67 (“I don’t think that’s accurate . . . . I don’t think he lived

there.”).

       Further, all of the other evidence adduced at trial supports the fact that he did not

live at that address.   Heironimus’s driver history information lists his previous and

current residences and mailing addresses, and none includes 1000 North Third Avenue.

Defense’s Ex. A. His handwriting exemplar listed his address as 3500 Harlan, and when

Heironimus sent a letter encouraging Talley not to testify against him at trial, he listed his

return address as 712 Hess Avenue. Finally, at trial, Dylan Hall, a resident of 1000 North

Third Avenue, testified that Heironimus “stayed there a few times,” but that the attic

bedroom wasn’t his. Tr. p. 162-63. Looking at this evidence together, the trial court did

not abuse its discretion in admitting the identification evidence against Heironimus. He

does not have standing to raise a constitutional challenge against the warrantless entry by

police into the home because he was merely a visitor and therefore had no legitimate

expectation of privacy in the premises. The identification evidence is therefore not the

product of an unconstitutional search.




                                              6
      Affirmed.

MATHIAS, J., and BARNES, J., concur.




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