MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Feb 22 2017, 5:41 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Jenkins,                                           February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1602-CR-399
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-1410-MR-46576



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 1 of 12
[1]   James Jenkins appeals his conviction for murder. Jenkins raises one issue

      which we revise and restate as whether the court abused its discretion in

      admitting certain evidence. We affirm.


                                      Facts and Procedural History

[2]   In the early morning hours of October 1, 2014, Raul Castaneda-Martinez,

      Emmanuel Phillips, and others were gathered at a bonfire behind a house on

      Minnesota Street in Indianapolis. After obtaining methamphetamine, they

      went across the street to the home of Emmanuel’s aunt, Kim Phillips. While

      there, Castaneda-Martinez decided to purchase more methamphetamine, and

      another person phoned Jenkins for that purpose.


[3]   Jenkins arrived at Kim’s house and sold methamphetamine to Castaneda-

      Martinez. Before Jenkins left, Castaneda-Martinez told Jenkins that he also

      was interested in purchasing cocaine. Jenkins later returned to the house, but

      Castaneda-Martinez informed him that he no longer wanted to buy the cocaine.

      Jenkins asked Castaneda-Martinez to speak outside. Emmanuel followed the

      two men out onto the porch, but Jenkins told Emmanuel that he wanted to

      speak to Castaneda-Martinez alone. Jenkins and Castaneda-Martinez then

      walked down the street while Emmanuel stayed outside on the front porch.


[4]   A few minutes later, Emmanuel heard gunshots. Kim, who was inside, heard

      two gunshots that sounded like they were right in front of the house, and she

      quickly locked the front door and crouched on the floor. Emmanuel ran to the

      edge of the porch and looked in the direction that Castaneda-Martinez and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 2 of 12
      Jenkins had walked, and he saw two men run to a white SUV. In front of a

      house a couple of doors down, he observed Jenkins standing over the top of

      Castaneda-Martinez, who was on the ground. Jenkins faced Emmanuel,

      looked directly at him, and fired two more shots down into Castaneda-

      Martinez. He then ran to the white SUV and left with the other two men.

      Castaneda-Martinez died as a result of the gunshot wounds.


[5]   Emmanuel went to Castaneda-Martinez and observed that he was not

      breathing. Emmanuel then returned to Kim’s house. He was terrified,

      trembling, and kept saying that “Jay,” as he knew Jenkins, had shot his friend.

      Transcript at 188. Emmanuel called the police tip line and told them what had

      happened. Later that night, Emmanuel, Kim, and another person spoke with

      police, told them that “Jay” shot Castaneda-Martinez, provided a physical

      description of Jenkins, including his distinctive face and neck tattoos, and

      identified Jenkins in photo arrays. Id. at 218.


[6]   Later, Jenkins called Emmanuel and asked to meet him at a convenience store,

      but Emmanuel did not go because he was afraid that something would happen

      to him. The next time that Emmanuel saw Jenkins, Jenkins told him that he

      “better keep it solid and, uh, if I don’t something will happen to me and my

      family.” Id. at 136.


[7]   Also, a few days prior to the murder of Castaneda-Martinez, someone crashed

      a car into a gun store and stole twenty-five handguns. Jenkins became a suspect

      in the burglary investigation after someone reported that he was attempting to


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 3 of 12
      sell handguns stolen in the burglary. Officers conducting that investigation

      obtained his cell phone number and applied for a court order to determine the

      current location and historical locations of the phone. The affidavit detailed

      information to establish probable cause to believe that Jenkins was in

      possession of and trying to sell guns obtained in the burglary and that locating

      him would likely be achieved by locating the phone that was the target of the

      order. The affidavit was sworn to and submitted by Detective Ronald Gray of

      the Indianapolis Metropolitan Police Department.


[8]   The court ruled that probable cause existed to believe that Jenkins had

      committed theft or receiving stolen property and that he could be apprehended

      by locating the phone “through the use of Precision Location by way of GPS

      technology to determine the location of the user of the Target Phone.”

      Appellant’s Appendix at 216. The court ordered that the service provider

      would give the police “GPS Precision Location for the Target Phone to

      determine the movements of the Target Phone for a period of thirty (30) days.”

      Id. The court ordered the service provider to supply the police with subscriber

      identifying information, information to identify the phone, and cell site and

      GPS location information from September 28, 2014, to the present. The order

      states that, pursuant to Title 18 U.S.C. § 3124:

              the Indiana State Police shall be authorized to initiate a signal to
              determine the location of the subject’s mobile device on the
              service provider’s network or with such other reference points as
              may be reasonably available, Global Position System Tracing
              and Tracking, Mobile Locator tools, R.T.T. (Real Time Tracking
              Tool), Precision Locations and any and all locations, without
      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 4 of 12
              geographical boundaries, and such provider shall initiate a signal
              to determine the location of the subject’s mobile device on the
              service provider’s network or with such other reference points as
              may be reasonably available and at such intervals and times as
              directed by the law enforcement agent / agencies serving the
              Order.


      Id. at 218.


[9]   Officers from the burglary investigation assisted homicide detectives in locating

      Jenkins’s phone during the midmorning hours of October 1, 2014, the day

      Castaneda-Martinez had been shot and killed. Utilizing an electronic

      surveillance device, police narrowed the location to a home on South State

      Avenue, and the police setup surveillance around the house, were provided a

      photograph of Jenkins, and watched for approximately an hour or more to see

      if they could locate him. At some point, police observed Jenkins and another

      man exit the house and begin walking down the street, and Jenkins nervously

      looked over his shoulder several times. After a detective recognized and

      positively identified Jenkins, officers decided to make an arrest, and after an

      officer activated his emergency lights Jenkins and the other man started

      running. Following a foot chase of approximately fifteen or twenty minutes,

      the police ultimately apprehended Jenkins. Police also recovered a silver and

      black handgun, in which subsequent testing showed that the handgun was the

      same gun used to kill Castaneda-Martinez, as well as Jenkins’s cell phone

      which had been used to track him and contained a photograph of Jenkins

      holding a gun similar to the handgun recovered at the scene.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 5 of 12
[10]   On October 6, 2014, the State charged Jenkins with murder. On October 19,

       2015, the court held a jury trial which ended in a mistrial. A second jury trial

       commenced on December 14, 2015. At trial, Jenkins objected to any and all

       evidence obtained by accessing the GPS for his cell phone, and the court

       overruled his objections but stated that a full hearing on the suppression claims

       would be held following the trial if he was convicted on the murder charge. On

       December 16, 2015, the jury found Jenkins guilty.


[11]   On December 30, 2015, Jenkins filed a Brief of Motion to Suppress Evidence,

       and the State filed its response on January 12, 2016. On January 20, 2016, the

       court held a hearing and denied Jenkins’s motion, ruling that “Whether the

       information provided to our Magistrate here was enough, in my view it was,

       but you’re kind of saying, maybe he didn’t understand it. And I can’t rule

       based on what he understands. Just on what sense it makes to me and whether

       his actions were reasonable.” Transcript at 1250.


[12]   On February 5, 2016, the trial court sentenced Jenkins to sixty-three years in the

       Department of Correction.


                                                    Discussion

[13]   The issue is whether the court abused its discretion in admitting certain

       evidence. Generally, we review the trial court’s ruling on the admission or

       exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d

       1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the decision is

       clearly against the logic and effect of the facts and circumstances. Joyner v.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 6 of 12
       State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Also, “[w]hen a trial

       court’s evidentiary ruling depends on the interpretation of a statute, case law, or

       a rule of evidence and not an ‘application [of those] to any particular set of

       facts’, it presents a legal question we review de novo.” Patchett v. Lee, 60 N.E.3d

       1025, 1028 (Ind. 2016). 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.


[14]   Jenkins argues that the cell tower simulator, or “Stingray,” used by officers is

       neither a pen register nor a trap and trace device, which are devices

       contemplated by 18 U.S.C. § 3124. Appellant’s Brief at 24. He asserts that that

       Ind. Code § 35-33-5-15(a)(1)(A), 1 read in conjunction with definitions provided

       by Ind. Code § 35-33-5-0.5, “make it clear that GPS communications from a

       cell phone must be considered telephonic communications that fall under Title

       35, Article 33.5.” Id. at 22. Jenkins makes a number of arguments for the

       proposition that the State failed to comply with Title 35, Article 33.5 of the

       Indiana Code.


[15]   The State argues that Jenkins waived appellate review of his statutory claims

       because such claims are being raised for the first time on appeal, and that,

       waiver notwithstanding, the police complied with Ind. Code § 35-33-5-12,

       which governs the use of tracking devices. It maintains that Jenkins’s statute-



       1
        Ind. Code § 35-33-5-15 became effective on March 21, 2016, when it was added by Pub. L. No. 57-2016, §
       3.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017      Page 7 of 12
       based arguments are “premised on assumptions about the nature of the

       technology employed in this case that is not supported by the record and, even

       if it was true, would be irrelevant to this case.” Appellee’s Brief at 16. The

       State asserts that, in the event police action did not comply with the court’s

       order, both the good faith exception and attenuation doctrine apply, and in any

       event any possible error in the court’s evidentiary ruling is harmless.


[16]   We begin with the State’s assertion of waiver. At trial, the following exchange

       occurred during the direct examination of Detective Gray:

               Q        Okay. And – now what – what specific action did you
                        take to assist?


               A        Uhm, I’d contacted some other people in our unit with the
                        Indiana State Police and asked them to assist us with
                        electronic surveillance.


               [Defense Counsel]:                Objection. May we approach.


               THE COURT:                You may.


               (THE FOLLOWING BENCH CONFERENCE WAS HELD AT
               SIDE BAR OUT OF THE HEARING OF THE JURY)


               [Defense Counsel]:                (Indiscernible.)


               THE COURT:           (Indiscernible) about the machinery or just
               the (indiscernible.)




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 8 of 12
        [Defense Counsel]:        The fact that he’s referencing the joint
        surveillance was through my client’s (indiscernible.) I suspect
        that will be coming up next. I could ask him a few questions to
        supplement the motion if – if the Court likes.


        THE COURT:                Response.


        [Prosecutor]:      I just want to say there’s nothing. There’s no
        improper influence here.


        THE COURT:          This is something – this is what I said you
        could argue about if there’s an adverse verdict.


        [Defense Counsel]: Well, but I still – I still have to object at the
        time that the reference is taking place (indiscernible.)


        THE COURT:                Are you satisfied the record’s been –


        [Prosecutor]: He made his objection.


        THE COURT:                Anything else?


        [Prosecutor]:       I probably want to cite case law on
        (indiscernible) and give a specific reference of that in Article 1,
        Section 11 in the Indiana Constitution for (indiscernible.)


        THE COURT:          We’re agreeing that you’ve made the record
        you need to make to preserve the issue. I think the State’s agreed
        that the procedure I recommended which is if the verdict is
        adverse to you, you can have that full blown hearing prior to
        sentencing. . . .




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 9 of 12
       Transcript at 271-273. The parties agreed to hold a motion to suppress hearing

       following the trial if Jenkins was found guilty.


[17]   In Jenkins’s Brief of Motion to Suppress Evidence, he moved the court for an

       order of suppression “based on the 4th and 14th Amendments to the United

       States Constitution and Article 1 Section 11 of the Indiana Constitution . . . .”

       Appellant’s Appendix at 192. In support thereof, he asserted that “[t]he

       application for the search warrant did not include any reference to the use of

       cell tower simulators and the court order did not authorize such a device,”

       noting that IMPD officers “used an electronic device (‘Stingray’) to search for

       the cellular phone with the [Target Phone number] which led to” Jenkins’s

       location. Id. He asserted that a cell tower simulator such as a Stingray

       “simulates a cell site” which “causes or forces cell phones in an area to send

       their signals – with all the information contained therein – to the cell-site

       simulator,” and that the device “captures a vast array of information, including,

       but not limited to, the cell phones’ electronic serial number (‘ESN’) or

       international mobile subscriber identification (‘IMSI’).” Id. at 193. He argued

       that the “law enforcement officer failed to disclose the use of ‘Stingray’ in the

       application for the warrant effectively making it invalid,” and that the good

       faith exception did not apply. Id. at 195. The State argued in its response that

       the court’s order authorized the police activity and that “the type of device

       employed is irrelevant, so long as law enforcement complied with the existing

       law by obtaining prior judicial approval to activate its equipment.” Id. at 206.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 10 of 12
       At no point did Jenkins mention Title 35, Article 33.5 of the Indiana Code or

       make any argument related to any other violations of Indiana statute.


[18]   Based upon our review of Jenkins’s objection and brief in support of his motion

       to suppress, we find that he did not raise an objection at the trial court level

       concerning purported violations of Indiana statute. Accordingly, we conclude

       that he has waived his statutory arguments on appeal. See Moore v. State, 669

       N.E.2d 733, 742 (Ind. 1996) (“Where a defendant fails to object to the

       introduction of evidence, makes only a general objection, or objects only on other

       grounds, the defendant waives the suppression claim.”) (emphasis added), reh’g

       denied. Moreover, we agree with the State that the record is incomplete to

       attempt to address Jenkins’s claims on the merits.


[19]   We also observe that, even if Jenkins did not waive his arguments that the use

       of the Stingray device violated the Indiana Code, the officers did not rely upon

       the court’s order in good faith, and the attenuation doctrine did not apply under

       these circumstances, we would find that any such error was harmless. On the

       night of the shooting, Emmanuel Phillips, Kim Phillips, and another person

       spoke with police, told them that “Jay” shot Castaneda-Martinez, provided a

       physical description of Jenkins, including his distinctive face and neck tattoos,

       and identified Jenkins in photo arrays. Transcript at 218. At trial, Emmanuel

       testified that he and Castaneda-Martinez left a bonfire to go to Kim’s home,

       that someone phoned Jenkins so that Castaneda-Martinez could obtain

       methamphetamine, that when Jenkins arrived he sold methamphetamine to

       Castaneda-Martinez, who indicated that he was also interested in purchasing

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 11 of 12
       cocaine, and that when Jenkins returned with cocaine Castaneda-Martinez told

       him he was no longer interested in purchasing it. Following this exchange,

       Jenkins and Castaneda-Martinez left to speak outside, Emmanuel attempted to

       follow, but Jenkins told Emmanuel that he wanted to speak to Castaneda-

       Martinez alone. He testified that a few minutes later he heard gunshots, he

       looked in the direction that Castaneda-Martinez and Jenkins had walked, saw

       two men run to a white SUV and soon after observed Jenkins standing over the

       top of Castaneda-Martinez, who was on the ground. Emmanuel testified that

       Jenkins faced Emmanuel, looked directly at him, fired two more shots down

       into Castaneda-Martinez, and ran to the white SUV and left with the other two

       men. Accordingly, we conclude that any error was at most harmless. See

       Tolliver v. State, 922 N.E.2d 1272, 1279 (Ind. Ct. App. 2010) (holding that

       regardless of the admissibility of certain evidence, “two independent

       eyewitnesses . . . whose testimony was wholly unrelated to and unaffected by”

       the questioned evidence, “identified Tolliver as the shooter, and [one

       eyewitness] connected Tolliver to a gun like the one used to kill [the victim],”

       and that accordingly any alleged error in admitting the evidence was harmless),

       trans. denied.


                                                   Conclusion

[20]   For the foregoing reasons, we affirm Jenkins’s conviction for murder.


[21]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-399 | February 22, 2017   Page 12 of 12
