MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       May 28 2015, 9:02 am
Memorandum Decision shall not be regarded as
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
Patricia Caress McMath                                   Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Phillip Killebrew,                                      May 28, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1409-CR-648
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Steven R. Eichholtz,
Appellee-Plaintiff.                                     Judge

                                                        The Honorable Peggy Ryan Hart,
                                                        Commissioner

                                                        Cause No. 49G20-1308-FC-52802




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015       Page 1 of 16
[1]   Phillip Killebrew appeals his conviction for possession of a narcotic drug as a

      class C felony. Killebrew raises two issues which we revise and restate as:


        I.    Whether the trial court abused its discretion by admitting evidence
              obtained following the stop of his truck; and

       II.    Whether the evidence is sufficient to sustain his conviction.


      We affirm and remand.


                                      Facts and Procedural History

[2]   On August 11, 2013, Indianapolis Metropolitan Police Officer Carol Carson

      was working the late shift and responded to a run to assist Officer Rod Bradway

      with the search of a female. As Officer Carson approached, Officer Bradway

      jumped up and down, pointed toward a grey Dodge pickup truck that was

      pulling out onto Eagle Creek Parkway, and yelled: “Stop that truck, they are

      firing shots.” Transcript at 41. Officer Carson observed the truck pulling away,

      followed the truck northbound, and waited for the arrival of assisting units.

      Officer Carson saw Sergeant Rivers approaching, activated her overhead lights,

      and stopped the truck.


[3]   Officer Carson approached the driver’s side, looked inside, and saw a handgun

      in plain view between the driver’s seat and the console. Officer Carson

      handcuffed Killebrew, the driver and registered owner of the truck. Sergeant

      Rivers went to the passenger side and handcuffed the passenger, Michael

      Killebrew (“Michael”).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 2 of 16
[4]   At some point when Killebrew and Michael were handcuffed, Officer Aaron

      Trotter arrived, went to the truck, and observed the handgun in between the

      driver’s seat and the center console. He also leaned into the vehicle and

      observed what he believed to be a baggie of heroin on top of some papers in a

      storage tray in the center console. Officer Trotter did not have to open anything

      or move anything to see the baggie, and then searched for more guns or

      narcotics, opened the glove box, and discovered additional guns.


[5]   While Officer Trotter was at the stop, control operators informed the officers at

      the scene that a bullet had struck a residence on Gamay Lane which was about

      thirty or forty feet from Eagle Creek Parkway. Later analysis revealed that the

      revolver discovered in the glove box was the firearm that shot the bullet into the

      residence on Gamay Lane.


[6]   The State charged Killebrew with possession of a narcotic drug in excess of

      three grams as a class C felony and possession of a narcotic drug while in

      possession of a firearm as a class C felony. On July 29, 2014, the court held a

      bench trial. Officer Trotter testified without objection that he observed a baggie

      of heroin and a handgun in Killebrew’s truck. Defense counsel later objected to

      the admission of anything seized from inside the truck because there was

      nothing to warrant the actual stop of the truck, and the court overruled the

      objection. Defense counsel also objected to the admission of the guns found in

      the truck on the basis of the United States Constitution and Article 1, Section

      11 of the Indiana Constitution. The court overruled the objection.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 3 of 16
[7]   After the State rested, Killebrew’s counsel moved for a judgment on the

      evidence, and the court denied the motion. Killebrew testified that he was not

      the only person who had access to his vehicle, that his cousin drove his truck

      three or four times a week, and that he was not aware there was heroin in the

      truck. On cross-examination, Killebrew testified that he was aware there were

      guns in the truck on the night he was stopped. On redirect examination,

      Killebrew testified that he was not familiar with heroin and had never used

      drugs.


[8]   The court found Killebrew guilty as charged and merged Count I, possession of

      a narcotic drug as a class C felony, into Count II, possession of a narcotic drug

      while in possession of a firearm as a class C felony. The court sentenced

      Killebrew to six years with two years suspended, two years in the Department

      of Correction, and two years in the Marion County Community Corrections

      Program.


                                                  Discussion

                                                        I.


[9]   The first issue is whether the trial court abused its discretion by admitting

      evidence obtained following the stop of Killebrew’s truck. 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. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 4 of 16
       denied. 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. Also, we may affirm a

       trial court’s decision to admit evidence seized as a result of a search based on

       any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616 (Ind.

       Ct. App. 2000), trans. denied.


[10]   Killebrew argues that the search was illegal under the Fourth Amendment of

       the United States Constitution and Article 1, Section 11 of the Indiana

       Constitution. Killebrew asserts that he objected to the admission of the

       physical items of the heroin and guns on the grounds they were illegally seized

       when the State offered them at trial. The State contends that Killebrew waived

       his claim that the heroin and the two firearms in the glove box were discovered

       in an unconstitutional search because he did not object to Officer Trotter’s

       testimony about discovering the heroin and the firearms. Even assuming that

       Killebrew did not waive this issue, we cannot say that reversal is warranted.


[11]   The Fourth Amendment to the United States Constitution 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.


       Thus, the Fourth Amendment to the United States Constitution prohibits

       unreasonable searches and seizures by the government. Patterson v. State, 958


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 5 of 16
       N.E.2d 478, 482 (Ind. Ct. App. 2011). “Searches performed by government

       officials without warrants are per se unreasonable under the Fourth

       Amendment, subject to a ‘few specifically established and well-delineated

       exceptions.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v.

       United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). A search without a

       warrant requires the State to prove an exception to the warrant requirement

       applicable at the time of the search. Id.


[12]   Killebrew acknowledges that Officer Carson saw the handgun between the

       driver’s seat and the console without conducting a search, but argues that the

       guns in the glove box and the heroin were not discovered until Officer Trotter

       leaned into the truck and conducted his search. He asserts that Officer Trotter

       was not lawfully located in the truck when he saw the heroin and he did not

       have a lawful right of access to it, and that the officers did not have probable

       cause for an arrest, but acknowledges that the officers had reasonable suspicion

       to pull the truck over and freeze the situation.


[13]   The State argues that the officers had probable cause to search Killebrew’s truck

       for evidence of a crime as soon as Officer Carson saw the handgun wedged

       between the driver’s seat and the console. The State contends that once the

       report of gunshots fired from Killebrew’s truck was corroborated by the sight of

       a firearm within reaching distance of the driver’s seat, there was probable cause

       to believe that the truck contained evidence of criminal recklessness and

       criminal mischief.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 6 of 16
[14]   A search falls within the automobile exception when a vehicle is readily mobile

       and there is probable cause to believe it contains contraband or evidence of a

       crime. Meister v. State, 933 N.E.2d 875, 878-879 (Ind. 2010) (citing Maryland v.

       Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013 (1999)). Where there is probable

       cause to search a vehicle, a search is not unreasonable if it is based on facts that

       would justify the issuance of a warrant, even though a warrant has not been

       obtained. Id. The automobile exception is grounded in two notions: “1) a

       vehicle is readily moved and therefore the evidence may disappear while a

       warrant is being obtained, and 2) citizens have lower expectations of privacy in

       their vehicles than in their homes.” State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind.

       2010) (citing California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066 (1985)).

       The United States Supreme Court has specifically stated that when there is

       probable cause that a vehicle contains evidence of a crime, a warrantless search

       of the vehicle does not violate the Fourth Amendment. Meister, 933 N.E.2d at

       879 (citing California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982 (1991)); see

       also Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485 (1996) (“If a car is

       readily mobile and probable cause exists to believe it contains contraband, the

       Fourth Amendment thus permits police to search the vehicle without more.”)

       (citing Carney, 471 U.S. at 393, 105 S. Ct. 2066). Also, “when police officers

       have probable cause to believe there is contraband inside an automobile that

       has been stopped on the road, the officers may conduct a warrantless search of

       the vehicle, even after it has been impounded and is in police custody.”

       Cheatham v. State, 819 N.E.2d 71, 75 (Ind. Ct. App. 2004) (quoting Michigan v.

       Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 3080 (1982)).
       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 7 of 16
[15]   Further, “[f]acts necessary to demonstrate the existence of probable cause for a

       warrantless search are not materially different from those which would

       authorize the issuance of a warrant if presented to a magistrate.” Meister, 933

       N.E.2d at 879 (quoting Masterson v. State, 843 N.E.2d 1001, 1004 (Ind. Ct. App.

       2006), trans. denied). Probable cause to issue a search warrant exists where the

       facts and circumstances would lead a reasonably prudent person to believe that

       a search would uncover evidence of a crime. Esquerdo v. State, 640 N.E.2d

       1023, 1029 (Ind. 1994).


[16]   The record reveals that as Officer Carson approached Officer Bradway to assist

       with the search of a female, Officer Bradway jumped up and down, pointed at

       Killebrew’s truck, and yelled: “Stop that truck, they are firing shots.”

       Transcript at 41. Officer Carson eventually stopped the truck and observed a

       handgun in plain view from outside the vehicle. At some point when Killebrew

       and Michael were handcuffed, Officer Aaron Trotter arrived and observed a

       handgun in between the driver’s seat and the center console. He also leaned

       into the vehicle and observed a baggie of heroin on top of some papers in a

       storage tray in the center console without having to open or move anything.

       Officer Trotter then searched for more guns or narcotics, opened the glove box,

       and discovered additional guns. We note that, in his argument under the

       Indiana Constitution, Killebrew states: “One handgun had already been seen in

       plain view. That gave officers the probable cause they needed for a search warrant to see

       if other evidence of the shooting would be found in the truck, but no circumstances




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 8 of 16
       existed for them to search the truck without a search warrant.” Appellant’s

       Brief at 7 (emphasis added).


[17]   Under the circumstances, we conclude that probable cause existed for a

       reasonably prudent person to believe that a search of the vehicle would uncover

       evidence of a crime, and that the automobile exception to search warrant

       requirement applies. See Johnson v. State, 766 N.E.2d 426, 431-433 (Ind. Ct.

       App. 2002) (holding that the police had probable cause to search under the

       hood of a vehicle where police responded to a report of shots fired and an

       officer was informed by witnesses of a description of one of the shooters, the

       vehicle, and that a handgun had been stashed under the hood of the car, and

       police subsequently stopped a vehicle and driver matching the description given

       by the witnesses), trans. denied; Thurman v. State, 602 N.E.2d 548, 554 (Ind. Ct.

       App. 1992) (holding that the marijuana was in open view, that there was no

       search or initial intrusion into a constitutionally protected area, and that the

       marijuana was lawfully discovered and admissible, and noting that “[o]nce an

       item is discovered in open view, a search warrant or an exception thereto is

       required prior to the item being seized” and that “[i]n the case before us, the

       marijuana was properly seized without a warrant pursuant to the ‘automobile

       exception’”) (quoting Henry v. State, 269 Ind. 1, 9, 379 N.E.2d 132, 137 (1978)),

       trans. denied; Zavesky v. State, 558 N.E.2d 1124, 1127 (Ind. Ct. App. 1990)

       (holding that “with the plain view observation of the television set and slot

       machine, the police had probable cause to believe the van contained the fruits of




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 9 of 16
       a crime; therefore, the automobile exception to the search warrant requirement

       applied”).


[18]   Killebrew also argues that the search of the vehicle violated Article 1, Section

       11 of the Indiana Constitution, which 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.


[19]   “Although this language tracks the Fourth Amendment verbatim, we proceed

       somewhat differently when analyzing the language under the Indiana

       Constitution than when considering the same language under the Federal

       Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006), adhered to on

       reh’g, 848 N.E.2d 278 (Ind. 2006). “Instead of focusing on the defendant’s

       reasonable expectation of privacy, we focus on the actions of the police officer,

       concluding that the search is legitimate where it is reasonable given the totality

       of the circumstances.” Id. “We will consider the following factors in assessing

       reasonableness: ‘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 citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 10 of 16
[20]   Killebrew concedes that law enforcement had a reasonable suspicion that a

       violation had occurred because they had a report of shots being fired from his

       truck. He argues that the degree of intrusion was fairly high because Officer

       Trotter searched his truck while he was handcuffed on the side of the road, and

       that law enforcement did not have a need to search his truck without securing a

       search warrant.


[21]   In addition to the automobile exception to the warrant requirement, the State

       argues that the search of Killebrew’s truck was done incident to his arrest

       because Killebrew had been removed from the truck and handcuffed before

       Officer Trotter searched it. The State asserts there was probable cause to make

       an arrest and that the factors of degree of suspicion and law enforcement needs

       to preserve evidence weigh in favor of a search incident to arrest.


[22]   We consider “the degree of concern, suspicion, or knowledge that a violation

       has occurred.” Litchfield, 824 N.E.2d at 361. Killebrew concedes that the

       officers had reasonable suspicion to stop his truck and had probable cause for a

       search warrant. We conclude that the degree or concern, suspicion, or

       knowledge that a violation had occurred was high. Next, regarding the degree

       of intrusion, the record reveals that Officer Carson observed a handgun in plain

       view and was able to see the handgun from outside the vehicle. Officer Trotter

       also observed a handgun in between the driver’s seat and the center console and

       then leaned into the vehicle and observed a baggie of heroin in the center

       console without having to open or move anything. This degree of intrusion was

       not high. Finally, the extent of law enforcement needs was strong given the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 11 of 16
       circumstances leading to Officer Carson’s stop of Killebrew. Under the totality

       of the circumstances, we conclude that the search of Killebrew’s vehicle was

       reasonable and did not violate his rights under Article 1, Section 11 of the

       Indiana Constitution.


                                                        II.


[23]   The next issue is whether the evidence is sufficient to sustain Killebrew’s

       conviction for possession of a narcotic drug as a class C felony. When

       reviewing the sufficiency of the evidence to support a conviction, we must

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

       unless “no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

       (Ind. 2000)). It is not necessary that the evidence overcome every reasonable

       hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Id.


[24]   The offense of possession of a narcotic drug as a class C felony is governed by

       Ind. Code § 35-38-4-6, which provides that a person “who, without a valid

       prescription or order of a practitioner acting in the course of the practitioner’s

       professional practice, knowingly or intentionally possesses . . . a narcotic drug

       (pure or adulterated) classified in schedule I or II, commits possession of . . . a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 12 of 16
       narcotic drug” and that the offense is a class C felony if “the person was also in

       possession of a firearm (as defined in IC 35-47-1-5).”1 Thus, to convict

       Killebrew of possession of a narcotic drug as a class C felony, the State needed

       to prove that he knowingly or intentionally possessed a narcotic drug classified

       in schedule I or II and was also in possession of a firearm.


[25]   Killebrew acknowledges that he admitted that the guns in the truck were his,

       but argues that the evidence was not sufficient to prove beyond a reasonable

       doubt that he possessed the heroin. He asserts that although the heroin was in

       close proximity to him, it was not necessarily in his view.


[26]   The State argues that the trial court could infer Killebrew’s knowledge of the

       heroin because the baggie containing heroin was in plain view and close to the

       driver’s seat. The State also contends that the incriminating character of the

       heroin was immediately apparent due to its yellowish color and its packaging.


[27]   When the State cannot show actual possession, a conviction for possessing

       contraband may rest instead on proof of constructive possession. Gray v. State,

       957 N.E.2d 171, 174 (Ind. 2011). A person constructively possesses contraband

       when the person has (1) the capability to maintain dominion and control over

       the item; and (2) the intent to maintain dominion and control over it. Id. A

       trier of fact may infer that a defendant had the capability to maintain dominion

       and control over contraband from the simple fact that the defendant had a



       1
        Subsequently amended by Pub. L. No. 158-2013, § 631 (eff. July 1, 2014); Pub. L. No. 168-2014, § 98 (eff.
       July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015            Page 13 of 16
       possessory interest in the premises on which an officer found the item. Id. We

       allow this inference even when that possessory interest is not exclusive. Id.


[28]   A trier of fact may likewise infer that a defendant had the intent to maintain

       dominion and control over contraband from the defendant’s possessory interest

       in the premises, even when that possessory interest is not exclusive. Id. When

       that possessory interest is not exclusive, however, the State must support this

       second inference with additional circumstances pointing to the defendant’s

       knowledge of the presence and nature of the item. Id. at 174-175. We have

       previously identified some possible examples, including: (1) a defendant’s

       incriminating statements; (2) a defendant’s attempt to leave or making furtive

       gestures; (3) the location of contraband like drugs in settings suggesting

       manufacturing; (4) the item’s proximity to the defendant; (5) the location of

       contraband within the defendant’s plain view; and (6) the mingling of

       contraband with other items the defendant owns. Id. at 175.


[29]   “A defendant’s ‘proximity to contraband “in plain view” . . . will support an

       inference of intent’ to maintain dominion or control.” Id. (quoting Lampkins v.

       State, 682 N.E.2d 1268, 1276 (Ind. 1997), modified on reh’g on other grounds, 685

       N.E.2d 698 (Ind. 1997)). In addition to being in plain view, however, the

       contraband’s incriminating character must be immediately apparent. Id.

       Whether the incriminating character of contraband was immediately apparent

       depends on an analysis similar to the one we use to determine the admissibility

       of evidence seized in a warrantless search under the plain view doctrine. Id.

       (citing in part Minnesota v. Dickerson, 508 U.S. 366, 374-375, 113 S. Ct. 2130

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 14 of 16
       (1993) (evidence admissible if officers lawfully in position to view item,

       incriminating character immediately apparent, and officers had lawful right of

       access to item)).


[30]   The record reveals that Officer Trotter observed what he believed to be a

       knotted baggie of heroin on top of some papers in a storage tray in the center

       console in Killebrew’s truck. Officer Trotter did not have to open anything or

       move anything to see the baggie. When asked how close the handgun was to

       the baggie, Officer Trotter stated:

               Probably two feet. So it’s basically, because I said the handgun was
               between the driver’s seat and the center console. So basically if you
               drew a straight line in front of you, then you had the handgun between
               the seat and the console and then you had the suspected heroin just
               two feet in front kind of on that tray on the floor basically.


       Transcript at 99.


[31]   Based on the record, we conclude that evidence of probative value existed from

       which the trial court could find that Killebrew possessed heroin and a firearm as

       a class C felony. See Ables v. State, 848 N.E.2d 293, 296 (Ind. Ct. App. 2006)

       (holding that the defendant had constructive possession where she was in the

       vehicle in which the gun was found, was in close proximity to the gun, and

       admitted that the gun was in the center console with her cell phone).


[32]   Lastly, we note that the sentencing order lists Count II as possession of

       methamphetamine. We remand to the trial court with instructions to correct

       the sentencing order.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 15 of 16
                                                   Conclusion

[33]   For the foregoing reasons, we affirm Killebrew’s conviction and remand with

       instructions to correct the sentencing order.


[34]   Affirmed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-648 | May 28, 2015   Page 16 of 16
