      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                               Jul 21 2015, 6:43 am
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Terry A. White                                            Gregory F. Zoeller
      Olsen & White, LLP                                        Attorney General of Indiana
      Evansville, Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Shawn Wayne Kinningham,                                   July 21, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A01-1411-CR-503
              v.                                                Appeal from the Vanderburgh
                                                                Circuit Court

      State of Indiana,                                         The Honorable Kelli E. Fink,
                                                                Magistrate
      Appellee-Plaintiff
                                                                Trial Court Case No.
                                                                82C01-1306-FC-634




      Mathias, Judge.

[1]   Shawn Wayne Kinningham (“Kinningham”) was convicted in Vanderburgh

      Circuit Court of three counts of Class D felony attempted theft. Kinningham

      appeals his convictions and sentence raising four issues. We conclude that the

      following issue is dispositive: whether the trial court abused its discretion when

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015           Page 1 of 13
      it admitted evidence derivatively obtained as a result of the illegal search of

      Kinningham’s hotel room.

[2]   We reverse and remand for proceedings consistent with this opinion.


                                     Facts and Procedural History

[3]   From April 27, 2013 to May 1, 2013, Kinningham and his partner David Slaton

      approached several car dealerships in the Evansville area, negotiated purchase

      prices for numerous vehicles, and attempted to purchase the vehicles with

      checks drawn on Kinningham’s account. Kinningham’s checking account was

      closed several days before Kinningham entered into negotiations with the

      dealerships. Thereafter, on June 7, 2013, Kinningham was charged in

      Vanderburgh Circuit Court with four counts of attempted theft and four counts

      of check deception.

[4]   Specifically, on Saturday, April 27, 2013, Kinningham, accompanied by Slaton,

      spoke to a salesman at D Patrick Ford in Evansville and negotiated the

      purchase an Audi and a BMW for $105,000. Kinningham gave the dealership a

      “hold check” in the amount of $2,000 drawn on Kinningham’s Citibank

      account. An employee of the dealership explained that the purchase of the

      vehicles could not be completed until the dealership could verify that

      Kinningham had funds available.


[5]   Slaton attempted to apply for a loan for the BMW, and he completed a

      purchase order for the BMW. However, Slaton’s loan application was rejected

      because of his low credit score. Kinningham and Slaton were unable to obtain

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 2 of 13
      an automobile from D Patrick and never returned to the dealership. Therefore,

      D Patrick never presented Kinningham’s check to the bank for payment.

[6]   After they left D Patrick, Kinningham and Slaton proceeded to Expressway

      Dodge dealership in Evansville. After they were told that the dealership closed

      at 8:30 p.m., they went to eat dinner and returned fifteen minutes before

      closing. Kinningham negotiated a purchase price of $37,075 for a Chrysler 300,

      and the salesman drafted a purchase agreement. Kinningham told the salesman

      that Slaton would be the vehicle owner, and Slaton signed the sales agreement.


[7]   Kinningham wrote a check for the entire purchase price of the vehicle.

      However, the dealership would not allow them to take the car because it could

      not verify the availability of funds in Kinningham’s account. The check was

      presented to the bank the following Monday, and it was returned for

      insufficient funds.

[8]   On April 30, 2013, Kinningham and Slaton test drove a Lexus LX at Kenny

      Kent Lexus. Later that day, Kinningham called the dealership and offered to

      pay $93,000 for the vehicle. Kinningham told the salesperson that he was too

      intoxicated to drive, and the salesperson agreed to meet Kinningham and

      Slaton to complete the sale.


[9]   The salesperson proceeded to the Le Merigot Hotel where Kinningham and

      Slaton were staying, and he was met by Slaton who gave him a $93,000 check

      signed by Kinningham. Slaton returned to the dealership with the salesperson

      who ran Slaton’s credit report. The credit check listed multiple credit checks

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 3 of 13
       from other car dealerships raising a “red flag.” Because it was also too late in

       the day to verify Kinningham’s account balance, the dealership refused to give

       the vehicle to Slaton and took him back to the hotel.


[10]   On May 1, 2013, Kinningham and Slaton negotiated the purchase of a 2007

       Mercedes Benz from Wright Select Motors. Slaton completed the purchase

       agreement and made a $500 non-refundable payment. Kinningham wrote a

       check for the remainder in the amount of $17,304. Because Slaton had made

       the $500 non-refundable payment, the dealership allowed them to take the

       Mercedes, which they had in their possession until their arrest the next day. The

       Mercedes was returned to Wright Select Motors.

[11]   Detective Rick Chambers of the Jasper Police Department was investigating

       similar activities of Kinningham and Slaton in Dubois County when he learned

       that they were staying at the Le Merigot Hotel in Evansville. On May 2, 2013,

       the detective proceeded to the hotel and arrested Kinningham and Slaton

       without a warrant. The detective then searched the hotel room without a

       warrant and collected Kinningham’s checkbook, two phones, and an iPad.


[12]   A federal agent present at the hotel during the search contacted Agent Moore

       and told him that he suspected that Kinningham and Slaton had written bad

       checks to various car dealerships in the area. Later that same day, United States

       Secret Service Agent Michael Moore proceeded to the Le Merigot Hotel, and

       hotel employees gave him the remainder of Kinningham’s and Slaton’s




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 4 of 13
       belongings.1 These items included business cards from Evansville car

       dealerships and a note with the name of the sales person at Wright Select

       Motors where Kinningham and Slaton obtained the Mercedes.


[13]   Agent Moore then began to investigate Kinningham’s and Slaton’s activities at

       the dealerships from April 27 through May 1, 2013. As a result of Moore’s

       investigation, four counts of attempted theft and four counts of check deception

       were filed against Kinningham.


[14]   A jury trial was held on June 25, 2014. Kinningham was found guilty of Class

       D felony attempted theft and Class A misdemeanor check deception for his

       activities at D Patrick Ford, Class D felony attempted theft and Class D felony

       check deception for his activities at Expressway Dodge, and Class D felony

       attempted theft and Class D felony check deception for his activities at Kenny

       Kent Lexus. Kinningham was found not guilty of attempted theft and check

       deception for the Mercedes he and Slaton acquired at Wright Select Motors.


[15]   At the sentencing hearing, which was not held until October 30, 2014, the trial

       court declined to enter judgment of conviction on the check deception charges

       due to double jeopardy concerns. The court ordered Kinningham to serve

       concurrent terms of two and one-half years for the three attempted theft



       1
         On the dates relevant to the case before us, Kinningham was on supervised release for a wire fraud
       conviction in the United States District Court, Eastern District of Pennsylvania. Specifically, Kinningham
       was convicted of fraudulently representing that he was the president of a corporation and paid for air travel
       and limousine services with a corporate credit card, knowing that he did not have sufficient credit to cover
       the cost of the services, more than $167,000. See Appellant’s App. p. 175.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015                Page 5 of 13
       convictions. However, the trial court ordered Kinningham to serve his sentence

       consecutive to previously imposed sentences in Dubois County and in federal

       court. Kinningham was also given credit for time served in jail from May 3 to

       October 29, 2014. Kinningham now appeals. Additional facts will be provided

       as needed.


                                          Discussion and Decision

[16]   Citing the “fruit of the poisonous tree” doctrine and its application to both the

       Fourth Amendment and Article 1, Section 11, Kinningham argues that the trial

       court abused its discretion when it admitted evidence derivatively obtained

       from the illegal, warrantless search of his hotel room.2 Questions regarding the

       admission of evidence are entrusted to the sound discretion of the trial court.

       Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 2013), trans. denied.

       Accordingly, we review the court’s decision on appeal only for an abuse of that

       discretion. Id. The trial court abuses its discretion only if its decision regarding

       the admission of evidence is clearly against the logic and effect of the facts and

       circumstances before it, or if the court has misinterpreted the law. Id.




       2
         The State contends that Kinningham waived this argument by failing to object to the evidence obtained as a
       result of the warrantless search of his hotel room. However, Kinningham objected on these grounds at trial
       and requested a continuing objection to the admission of evidence related to Kinningham’s actions at the car
       dealerships. Tr. p. 119. He renewed his continuing objection throughout the trial. See e.g. Tr. pp. 144-45.
       Moreover, Indiana Rule of Evidence 103(b) states that “[o]nce the court rules definitively on the record at
       trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015             Page 6 of 13
[17]   Prior to trial, the trial court determined that Detective Chambers’s warrantless

       search of Kinningham’s hotel room was illegal.3 Detective Chambers and a

       federal agent present during the search provided information to Agent Moore

       found during the search including the duplicate copies of the checks

       Kinningham gave to the car dealerships. Therefore, Kinningham argues that

       “[b]ut for the unconstitutional seizure of the documents, law enforcement

       would have had no knowledge of the alleged acts of check deception and

       attempted theft.” Appellant’s Br. at 16. The evidence gathered as a result of the

       search of his hotel room should have been suppressed as “fruit of the poisonous

       tree.” Id.


[18]   The “fruit of the poisonous tree” doctrine bars the admissibility in a criminal

       proceeding of evidence obtained in the course of unlawful searches and

       seizures. See Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000). “The

       doctrine operates to bar not only evidence directly obtained, but also evidence

       derivatively gained as a result of information learned or leads obtained during

       an unlawful search or seizure.” Id.


[19]   For example, in Gyamfi v. State, 15 N.E.3d 1131 (Ind. Ct. App. 2014), Gyamfi

       made purchases with a stolen credit card in Hancock County and attempted

       purchases in Boone County. While investigating Gyamfi’s attempt to make

       purchases with the stolen credit card in Boone County, a Boone County law

       enforcement officer illegally searched Gymafi’s vehicle and discovered the

       3
           The State does not challenge this ruling on appeal.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 7 of 13
       receipt from the Hancock County transaction. A Boone County detective

       contacted the Hancock County Sheriff’s Department to provide information

       about the Hancock County purchase Gyamfi made with the stolen credit card.

       Gymafi was charged in Hancock County with fraud, theft, and forgery.

[20]   The Boone County charges were eventually dismissed after the trial court

       granted Gyamfi’s motion to suppress evidence obtained during the illegal

       search of his person and vehicle. Gyamfi also moved to suppress the evidence

       in the Hancock County prosecution and argued that the State’s evidence was

       derivatively obtained as a result of the illegal search during the Boone County

       investigation. The trial court suppressed only the receipt found in Gyamfi’s

       vehicle and denied his motion to suppress all other evidence derived from the

       illegal search, and he was found guilty as charged.


[21]   On appeal, Gyamfi argued that the evidence of the Hancock County purchase

       was inadmissible under the doctrine of the fruit of the poisonous tree. Our court

       observed that discovery of the receipt of the Hancock County transaction

       prompted Boone County law enforcement to contact the Speedway store in

       Hancock County and obtain the surveillance video of the transaction. A Boone

       County detective then contacted a Hancock County sheriff’s deputy, a

       representative of the credit card company, and the Speedway gas station’s

       corporate office. The Hancock County sheriff’s deputy testified that “all evidence

       presented in the Hancock County case was ‘all derived from those [] officers

       making the stop there in Boone County.’” Id. at 1136 (record citation omitted).

       The Hancock County detective stated that he obtained most of the information

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 8 of 13
       on the case from Boone County law enforcement officers. Therefore, our court

       concluded that the Gyamfi’s motion to suppress should have been granted

       because “the contested evidence that was nevertheless admitted amounted to

       evidence obtained as a direct result of information that [the Boone County

       officer] had learned during the illegal search.”4 Id. at 1136-37.

[22]   N.S. v. State, 25 N.E.3d 198 (Ind. Ct. App. 2015), similarly involved evidence

       derived from an illegal vehicle search. In that case, N.S. was arrested after

       police officers received a stolen vehicle report. N.S. was a back seat passenger in

       the vehicle, and both he and the driver were arrested. After N.S. was arrested,

       his backpack, which was located in the backseat of the vehicle, was searched,

       and officers discovered a firearm and marijuana.

[23]   During the delinquency proceedings, N.S. argued that admission of the firearm,

       marijuana, and any derivative testimony violated his Fourth Amendment

       rights.5 The juvenile court granted N.S.’s motion to suppress after concluding

       that his backpack was illegally searched but allowed the driver, D.M., to testify

       that N.S. had shown him the firearm and marijuana, which contraband was

       also admitted into evidence.

[24]   On appeal, the State argued that the D.M.’s knowledge of the contraband was

       gained independently from the officer’s illegal search of N.S.’s backpack. We

       observed:


       4
        Our court declined to address the State’s arguments under the attenuation and inevitable discovery
       doctrines because neither doctrine has application under the Indiana Constitution. Id. at 1137-38.
       5
        At the delinquency hearing, N.S. also argued that his Indiana Constitutional rights had been violated, but
       our court resolved the issue on Fourth Amendment grounds.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015              Page 9 of 13
               [N]o facts of record point to an intervening circumstance to clear
               the taint of the illegal search. D.M. did not, on his own initiative,
               direct officers to contraband. Rather, for a favorable plea bargain,
               he made an in-court identification of contraband he claimed to
               know that N.S. had possessed. D.M., who had been discovered
               driving the stolen vehicle, specifically acknowledged receiving a
               benefit in exchange for his testimony. At the same time, he
               denied that he had ever spoken with police officers regarding the
               contents of N.S.'s backpack prior to his testimony.

               Both the physical exhibits and D.M.'s testimony were fruit of the
               illegal search. When “none of [the] evidence should have been
               admitted . . . the conviction cannot stand.”

       Id. at 202 (citation omitted). Our court noted that “while a companion may

       possess independent knowledge, he or she is an ‘independent source’ only if the

       illegal search or seizure did not produce a ‘lead’ to law enforcement.” Id. (citing

       Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013)).


[25]   In this case, Agent Moore began to investigate Kinningham only after he

       received information that was obtained due to Detective Chambers’s illegal

       search of Kinningham’s hotel room. Detective Chambers had no knowledge of

       Kinningham’s negotiations with the car dealerships at issue in this case prior to

       entering his hotel room. Tr. p. 20. The federal agent who contacted Agent

       Moore did so because “he saw other evidence laying around the room and

       thought that it linked [Kinningham and Slaton] to Evansville area crimes.” Tr.

       p. 24. The federal agent also told Agent Moore about Kinningham’s “crimes

       involving vehicles in Dubois County.” Tr. p. 27. After receiving this

       information, Agent Moore “canvassed all the major dealerships in Evansville



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 10 of 13
       for information regarding [Kinningham and Slaton] and possibly stolen vehicles

       purchased with bad checks.” Id.


[26]   Agent Moore believed that Kinningham and Slaton had been arrested pursuant

       to a warrant. Tr. pp. 37-38. On the date of arrest, he searched the hotel room

       after a friend of Kinningham and Slaton had gathered their belongings. The

       hotel manager told Agent Moore that anything remaining in the room had been

       abandoned. Agent Moore found business cards for salesmen at D Patrick Ford

       and Expressway Dodge.

[27]   The day after Detective Chambers’s warrantless search of Kinningham’s hotel

       room, Agent Moore looked at the checkbook that Detective Chambers seized

       during that search. During his investigation, Agent Moore initiated contact

       with and collected copies of Kinningham’s checks and sales documents from D

       Patrick Ford, Expressway Dodge, Kenny Kent Lexus, and Wright Select

       Motors. None of the car dealerships involved contacted law enforcement to

       report possible criminal activity.

[28]   Without question, Agent Moore’s investigation of Kinningham and his

       activities with car dealers in Vanderburgh County derived solely from evidence

       obtained during the illegal search of Kinningham’s hotel room. Therefore, the

       evidence Agent Moore gathered from the car dealerships, the duplicate copies

       of Kinningham’s checks and evidence of purchase price negotiations, was the

       fruit of the poisonous tree pursuant to Article 1, Section 11 of the Indiana

       Constitution. See Gyamfi, 15 N.E.3d at 1138.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 11 of 13
[29]   Under the Fourth Amendment, the “fruit of the poisonous tree” doctrine “has

       no application when the derivative evidence has an independent source, when

       the connection between the lawless conduct of the police and the discovery of

       the challenged evidence has ‘become so attenuated as to dissipate the taint, and

       when the challenged evidence would inevitably have been properly obtained.”

       Id. (citations and internal quotations omitted). “The question is if the derivative

       evidence has been come at by exploitation of that illegality or instead by means

       sufficiently distinguishable to be purged of the primary taint.” Clark v. State, 994

       N.E.2d 252, 266 (Ind. 2013). Courts generally consider the time elapsed

       between the illegality and the acquisition of the evidence, the presence of

       intervening circumstances, and the purpose and flagrancy of the official

       misconduct. Id. The defendant must first prove the Fourth Amendment

       violation and that the evidence was a “fruit” of that search; the State must then

       show that the evidence may nevertheless be admitted. Id. at 267; see also Hanna,

       726 N.E.2d at 389.


[30]   Agent Moore did not engage in any official misconduct as he had no reason to

       know that Detective Chambers and other federal law enforcement officers

       illegally searched Kinningham’s hotel room. However, nothing in the record

       could lead us to conclude that Agent Moore would have independently

       discovered evidence that Kinningham attempted to purchase vehicles from car

       dealerships with checks written on a closed account. Also, no intervening

       circumstance exists to remove the taint of the illegal search. We acknowledge

       the State’s argument that the employees from the dealerships voluntarily


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015   Page 12 of 13
       testified at trial, but Agent Moore never would have investigated Kinningham’s

       negotiations with those dealerships absent evidence derived from the illegal

       search. Therefore, we reach the same conclusion under a Fourth Amendment

       analysis and hold that the evidence obtained by Agent Moore should not have

       been admitted as fruit of the poisonous tree.6


[31]   For these reasons, the trial court abused its discretion when, over Kinningham’s

       continuing objection, it allowed employees from the four dealerships to testify,

       and admitted into evidence the checks drawn on Kinningham’s Citibank

       account and the documents detailing Kinningham’s and Slaton’s sales

       negotiations with car dealerships. We therefore reverse Kinningham’s

       convictions for attempted theft and check deception and remand this case to the

       trial court for proceedings consistent with this opinion.


[32]   Reversed and remanded for proceedings consistent with this opinion.

       May, J., and Robb, J., concur.




       6
         The State unpersuasively relies on United States v. Ceccolini, 435 U.S. 268 (1978). The facts of Ceccolini are
       distinguishable from those in this appeal. In that case, the law enforcement officer accidentally discovered
       information concerning an illegally gambling operation while visiting with his friend, an employee of the
       defendant’s flower shop. The FBI had the flower shop under surveillance prior to the incident, and therefore,
       the FBI was aware of the shop employee’s relationship with the defendant. Four months elapsed between the
       date of the illegal search and FBI’s initial contact with the shop employee. In holding that the defendant’s
       employee’s testimony was admissible, the Supreme Court observed that there was “not the slightest evidence
       to suggest” that the police officer entered the shop or looked in the envelope left on the counter “with the
       intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he
       entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify
       against respondent.” Id. at 279-80.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-503 | July 21, 2015               Page 13 of 13
