                                                                         FILED
                                                                     Mar 22 2019, 8:47 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew W. Foster                                          Curtis T. Hill, Jr.
The Law Office of Andrew W. Foster,                       Attorney General of Indiana
LLC
Rockport, Indiana                                         Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Zachary J. Taylor,                                        March 22, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1757
        v.                                                Appeal from the Spencer Circuit
                                                          Court
State of Indiana,                                         The Honorable Jon A. Dartt,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          74C01-1801-F4-12


May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019                           Page 1 of 14
[1]   Zachary J. Taylor appeals his convictions of Level 5 felony possession of

      methamphetamine 1 and Level 6 felony possession of marijuana. 2 Taylor argues

      the search of his apartment violated his rights against illegal search and seizure

      under the Fourth Amendment of the United States Constitution and Article 1,

      Section 11 of the Indiana Constitution. We affirm.



                               Facts and Procedural History                            3




[2]   On January 5, 2018, Rockport Police Officer Shon Shourds responded to an

      anonymous tip of drug activity at Taylor’s apartment. Officer Shourds drove by

      the location and did not see any suspicious activity. After a second anonymous

      call reporting drug activity at Taylor’s apartment, Officer Shourds contacted

      Police Chief Kyle Maldonado, who directed Officer Shourds to go to Taylor’s

      apartment to “do a knock and talk.” (Tr. Vol. II at 132.) Chief Maldonado met

      Officer Shourds there and accompanied him to Taylor’s apartment door.


[3]   Officers heard voices from inside Taylor’s apartment as they approached. The

      door had a window, which was covered with blinds, with the exception of a few

      inches at the bottom of the window. Before knocking, Officer Shourds “peeked

      through or glanced through” the gap under the blinds, (id. at 49), and saw




      1
          Ind. Code § 35-48-4-6.1(b) (2014).
      2
          Ind. Code § 35-48-4-11(c) (2017).
      3
       We held oral argument in this case on February 21, 2019, at Vincennes University. We thank the
      University for its hospitality and counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019                           Page 2 of 14
      Taylor and a female who was holding a small, cylindrical glass pipe used to

      consume tobacco or illegal substances. Officer Shourds testified he had to

      “adjust his body” to see through the gap. (Id.) Officer Shourds did not knock

      on the door. Instead the officers returned to the parking lot to obtain a search

      warrant.


[4]   While the officers were in the parking lot pursuing the search warrant, they saw

      Taylor and the woman exit Taylor’s apartment and go separate directions.

      Officer Shourds recognized Taylor, exited the patrol car, and asked Taylor if he

      knew the woman’s name. Taylor told Officer Shourds the woman was Angela

      Stokes and gave him Stokes’ address. Officer Shourds proceeded to Stokes’

      nearby apartment.


[5]   Officer Shourds knocked on Stokes’ door, and she answered. He asked if he

      could speak with her, and she agreed. Officer Shourds told Stokes she was

      going to jail because he had observed her smoking methamphetamine at

      Taylor’s apartment. During the conversation, Stokes gave Officer Shourds a

      smoking device similar to the one he saw her holding in Taylor’s apartment, as

      well as multiple pills she claimed Taylor had given her to sell. Officer Shourds

      arrested Stokes.


[6]   While the officers were still waiting for the search warrant, Taylor returned to

      his apartment. Officers were concerned that Taylor would destroy evidence in

      the apartment, so they would not let Taylor enter his apartment. Taylor

      became angry, but eventually calmed down and left. Officers received the


      Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019       Page 3 of 14
      search warrant shortly thereafter, and Taylor returned to his apartment while

      officers were in the process of searching it. Other officers had arrived at the

      scene in the intervening moments and detained Taylor.


[7]   In Taylor’s apartment, officers found methamphetamine, marijuana, and a

      digital scale. Officers arrested Taylor. The State charged Taylor with Level 5

      felony dealing in a narcotic drug, 4 Level 6 felony possession of

      methamphetamine, 5 Level 6 felony maintaining a common nuisance, 6 Level 6

      felony dealing in marijuana, 7 and Class A misdemeanor possession of

      marijuana. 8 The State subsequently amended the charging information and

      added charges of Level 4 felony dealing in a narcotic drug, 9 Level 5 felony

      possession of methamphetamine, 10 Level 6 felony dealing in marijuana, 11 and

      Class B misdemeanor possession of marijuana. 12


[8]   On April 2, 2018, Taylor filed a motion to suppress the evidence found in his

      apartment, alleging the search of his apartment violated his Fourth Amendment




      4
          Ind. Code § 35-48-4-1(a) (2017).
      5
          Ind. Code § 35-48-4-6.1(a) (2014).
      6
          Ind. Code § 35-45-1-5(c) (2017).
      7
          Ind. Code § 35-48-4-10(c) (2016).
      8
          Ind. Code § 35-48-4-11(b) (2017).
      9
          Ind. Code § 35-48-4-1(c) (2017).
      10
           Ind. Code § 35-48-4-6.1(b) (2014).
      11
           Ind. Code § 35-48-4-10(c) (2017).
      12
           Ind. Code § 35-48-4-11(a) (2017).


      Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019        Page 4 of 14
       and Article 1, Section 11 rights against illegal search and seizure. He argued

       the evidence obtained as part of the search of his apartment was fruit of the

       poisonous tree because Officer Shourds conducted an illegal warrantless search

       when he repositioned his body to look in the gap between the blinds covering

       Taylor’s door window and the edge of the window. The trial court held a

       hearing on Taylor’s motion to suppress on April 13, 2018, and denied it on

       May 1, 2018.


[9]    The trial court held Taylor’s jury trial on May 9, 2018. During trial Taylor

       continued his objection to the admission of the evidence found in his

       apartment. The jury returned guilty verdicts on Level 6 felony possession of

       methamphetamine, Level 6 felony maintaining a common nuisance, and Class

       B misdemeanor possession of marijuana. Taylor subsequently pled guilty to

       having prior convictions that enhanced two of those convictions to Level 5

       felony possession of methamphetamine and Level 6 felony possession of

       marijuana. The trial court vacated the maintaining a common nuisance

       conviction due to double jeopardy concerns. On June 14, 2018, the trial court

       sentenced Taylor to an aggregate sentence of fourteen years, with one year

       suspended to probation.



                                  Discussion and Decision
[10]   The trial court denied Taylor’s pre-trial motion to suppress evidence, and

       Taylor made timely objections to the admission of evidence at trial. Because

       Taylor appeals following his conviction, rather than from the trial court’s order

       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019       Page 5 of 14
       denying his motion to suppress, the question before us is properly framed as

       whether the trial court abused its discretion in admitting the evidence. Shell v.

       State, 927 N.E.2d 413, 418 (Ind. Ct. App. 2010).


[11]   Admission of evidence at trial is left to the discretion of the trial court. Clark v.

       State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its determinations for an

       abuse of that discretion and reverse only when admission is clearly against the

       logic and effect of the facts and circumstances and the error affects a party’s

       substantial rights. Id. at 260. We will not reweigh evidence, and we consider

       conflicting evidence most favorable to the trial court’s ruling. Marcum v. State,

       843 N.E.2d 546, 547 (Ind. Ct. App. 2006). We also consider uncontested

       evidence favorable to the defendant. Id. The record must disclose substantial

       evidence of probative value that supports the trial court’s decision. Gonser v.

       State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006). The trial court’s ruling will be

       upheld if it is sustainable on any legal theory supported by the record, even if

       the trial court did not use that theory. Id.


                                           Fourth Amendment
[12]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting such searches

       without a warrant supported by probable cause. To deter State actors from

       violating that prohibition, evidence obtained in violation of the Fourth

       Amendment generally is not admissible in a prosecution of the citizen whose

       right was violated. Clark, 994 N.E.2d at 260. The State has the burden of


       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019          Page 6 of 14
       demonstrating the admissibility of evidence collected during a seizure or search.

       Id.


[13]   The threshold issue here is whether Officer Shourds’ actions while in the

       curtilage of Taylor’s apartment was an illegal search in violation of the Fourth

       Amendment. When approaching Taylor’s apartment to complete a knock and

       talk, Officer Shourds heard voices. He noticed there was a gap under the blinds

       covering Taylor’s door window. Officer Shourds leaned over and peered

       through the gap to see Taylor and Stokes. Taylor argues Officer Shourds’ act of

       peering through the gap in the blinds was an illegal search under the Fourth

       Amendment. To support his argument, he cites Florida v. Jardines, 569 U.S. 1

       (2013).


[14]   In Jardines, police received a tip that Jardines was growing marijuana in his

       home. Police took a drug-sniffing dog to the residence, and the dog alerted for

       the presence of marijuana while on Jardines’ porch. Based thereon, police

       obtained a search warrant to search Jardines’ house, where they found

       marijuana plants. The State charged Jardines with marijuana trafficking, and

       Jardines filed a motion to suppress the evidence against him, which the trial

       court granted. The State appealed all the way to the United States Supreme

       Court, which granted certiorari to answer “the question of whether the officers’

       behavior was a search within the meaning of the Fourth Amendment.” Id. at 5.


[15]   The Court first considered the limits of a person’s right of privacy in his home

       and curtilage. At the Fourth Amendment’s “‘very core’ stands the ‘right of a


       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019       Page 7 of 14
       man to retreat into his own home and there be free from unreasonable

       governmental intrusion.’” Id. at 6 (quoting Silverman v. United States, 365 U.S.

       505, 511 (1961)). The Court noted:


               This right would be of little practical value if the State’s agents
               could stand in a home’s porch or side garden and trawl for
               evidence with impunity; the right to retreat would be significantly
               diminished if the police could enter a man’s property to observe
               his repose from just outside the front window.


       Id. at 6. Curtilage is the area “immediately surrounding and associated with the

       home . . . [and is] part of the home itself for Fourth Amendment purposes.” Id.

       (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).


[16]   Whether an officer’s actions in the curtilage of a person’s home amount to a

       Fourth Amendment search hinges on whether the officer’s actions comply with

       an implicit or explicit license to enter from the residence’s occupant. Id. at 7.

       The Court stated, regarding an implicit license to enter the curtilage of a

       person’s home:


               We have accordingly recognized that “the knocker on the front
               door is treated as an invitation or license to attempt an entry,
               justifying ingress to the home by solicitors, hawkers and peddlers
               of all kinds.” This implicit license typically permits the visitor to
               approach the home by the front path, knock promptly, wait
               briefly to be received, and then (absent invitation to linger longer)
               leave. Complying with the terms of that traditional invitation
               does not require fine-grained legal knowledge; it is generally
               managed without incident by the Nation’s Girl Scouts and trick-
               or-treaters. Thus, a police officer not armed with a warrant may


       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019          Page 8 of 14
               approach a home and knock, precisely because that is “no more
               than any private citizen might do.”


       Id. at 8 (internal citations omitted). However, the Court explained,


               introducing a trained police dog to explore the area around the
               home in hopes of discovering incriminating evidence is
               something else. There is no customary invitation to do that. An
               invitation to engage in canine forensic investigation assuredly
               does not inhere in the very act of hanging a knocker. To find a
               visitor knocking on the door is routine (even if sometimes
               unwelcome); to spot that same visitor exploring the front path
               with a metal detector, or marching his bloodhound into the
               garden before saying hello and asking permission, would inspire
               most of us to - well, call the police. The scope of a license—
               express or implied - is limited not only to a particular area but
               also to a specific purpose. Consent at a traffic stop to an officer’s
               checking out an anonymous tip that there is a body in the trunk
               does not permit the officer to rummage through the trunk for
               narcotics. Here, the background social norms that invite a visitor
               to the front door do not invite him there to conduct a search.


       Id. at 9. The Jardines Court determined the use of a drug-sniffing dog in the

       curtilage of a private residence constituted a search under the Fourth

       Amendment. Id. at 11-12.


[17]   Jardines is distinguishable. In the case before us, Officer Shourds approached

       Taylor’s front door to perform a knock and talk, which Officer Shourds

       described as “we were just going to go to Mr. Taylor’s residence and speak with

       him. Tell him the allegations that had come in through dispatch and see if he

       would let us do a search of the property.” (Tr. Vol. II at 28-9.) This activity is


       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019          Page 9 of 14
       akin to that described in Jardines, wherein the Court recognized an implicit

       license to enter the curtilage of a person’s home, which “permits the visitor to

       approach the home by the front path, knock promptly, wait briefly to be

       received, and then (absent invitation to linger longer) leave.” Jardines, 569 U.S.

       at 8. However, Officer Shourds’ actions did not rise to the level intrusion found

       to violate the Fourth Amendment in Jardines.


[18]   Instead, Officer Shourds did what a girl scout or a trick of treater who

       approached the door in the same manner would – briefly observe the activity

       inside the apartment clearly visible from the front door window. The record

       does not suggest he lingered or attempted to peer through a window not located

       on the door, actions we explicitly found to violate the Fourth Amendment in

       J.K. v. State, 8 N.E.3d 222, 232 (Ind. Ct. App. 2014). While the area of the

       curtilage is a protected area under the Fourth Amendment, Officer Shourds did

       no more than an ordinary citizen is implicitly licensed to do under Jardines. The

       fact that Officer Shourds had to reposition his body to view this activity is of no

       consequence – if Taylor had intended for all of the activity within the

       apartment to be private, he would have ensured no one could see inside when

       arriving at his front door.


[19]   Finally, the activity observed by Officer Shourds that prompted the application

       for a search warrant – Stokes’ possession of a device that could be used to

       smoke illegal drugs – was in open view. Items are observed in “open view”

       when “law enforcement officers see contraband from an area that is not

       constitutionally protected, but rather is in [sic] a place where the officer is

       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019         Page 10 of 14
lawfully entitled to be.” Justice v. State, 765 N.E.2d 161, 165 (Ind. Ct. App.

2002), clarified on reh’g 767 N.E.2d 995 (Ind. Ct. App. 2002). An officer’s

observations of items in open view “do not constitute a search in the

constitutional sense.” Id. Officer Shourds was in area he was permitted to be –

outside Taylor’s front door – engaged in legitimate police business – a knock

and talk 13- when he observed in open view what he believed to be criminal

activity – Stokes’ possession of drug paraphernalia. Because Taylor had not

fully covered his window as to indicate he intended the activities therein to be

private, the situation is no different from an officer observing an illegal item on

the front porch of a residence. Officer Shourds’ actions did not constitute a

search and thus did not violate Taylor’s rights under the Fourth Amendment to

the United States Constitution. See Trimble v. State, 842 N.E.2d 798, 802 (Ind.

2006) (“The route which any visitor to a residence would use is not private in

the Fourth Amendment sense, and thus if police take that route for the purpose

of making a general inquiry or for some other legitimate reason, they are free to

keep their eyes open.”) (quoting 1 Wayne R. LaFave, Search and Seizure: A

Treatise on The Fourth Amendment § 2.3(e), at 592-3 (4th ed. 2004)).




13
  See Warren v. State, 73 N.E.3d 203, 207 (Ind. Ct. App. 2017) (holding a “knock and talk” was legitimate
police business and thus did not constitute a search under the Fourth Amendment).

Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019                             Page 11 of 14
                                          Article 1, Section 11
[20]   The language of Article 1, Section 11, the search and seizure provision of the

       Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth

       Amendment counterpart. Article 1, Section 11 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.


       Our Indiana Supreme Court has interpreted and applied Section 11

       independently from federal Fourth Amendment jurisprudence. Mitchell v. State,

       745 N.E.2d 775, 786 (Ind. 2001).


[21]   To determine whether a search violates Article 1, Section 11 of the Indiana

       Constitution, we must evaluate the “reasonableness of the police conduct under

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

       2005). “The totality of the circumstances requires consideration of both the

       degree of intrusion into the subject’s ordinary activities and the basis upon

       which the officer selected the subject of the search or seizure.” Id. at 360. In

       Litchfield, our Indiana Supreme Court outlined the evaluation we must

       undertake:


               In sum, although we recognize there may well be other relevant
               considerations under the circumstances, we have explained
               reasonableness of a search or seizure as turning on a balance of:

       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019        Page 12 of 14
               1) the degree of concern, suspicion, or knowledge that a violation
               has occurred, 2) the degree of intrusion the method of the search
               or seizure imposes on the citizens’ ordinary activities, and 3) the
               extent of law enforcement needs.


       Id. at 361.


[22]   Here, the degree of suspicion and the extent of law enforcement needs were not

       low, as Officer Shourds had received two calls indicating there were people

       engaging in drug-related activity in Taylor’s apartment. Additionally, Officer

       Shourds’ actions were minimally intrusive, if at all, as he acted in the manner a

       public citizen might when approaching Taylor’s front door for an innocuous

       reason such as to sell cookies or inquire regarding a political opinion. Based

       thereon, we cannot conclude Officer Shourds’ activities were unreasonable, and

       therefore his observations did not constitute an impermissible search under

       Article I, Section 11 of the Indiana Constitution. See Trimble v. State, 842

       N.E.2d 798, 804 (Ind. 2006) (search of curtilage permissible under Article 1,

       Section 11 based on concerned citizen’s report, officer’s minimal degree of

       intrusion, and officer’s concern for health and safety of those involved), adhered

       to on reh’g at Trimble v. State, 848 N.E.2d 278 (Ind. 2006).



                                                Conclusion
[23]   Officer Shourds’ act of peering through the inches-wide gap between the bottom

       of the blinds and the edge of the window on Taylor’s front door apartment

       window did not constitute an impermissible search under the Fourth


       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019       Page 13 of 14
       Amendment or Article 1, Section 11 of the Indiana Constitution. Thus, the

       trial court did not abuse its discretion when it admitted the items found as part

       of the search warrant prompted, in part, by Officer Shourds’ observations

       through the gap in the window. Accordingly, we affirm.


[24]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1757 | March 22, 2019      Page 14 of 14
