MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 24 2019, 10:09 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
Russell W. Brown, Jr.                                    Curtis T. Hill, Jr.
King Brown & Murdaugh, LLC                               Attorney General of Indiana
Merrillville, Indiana                                    George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin E. Clark, Jr.,                                     September 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-283
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Roger V. Bradford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         64D01-1410-F5-8782



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019               Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kevin E. Clark, Jr. (Clark), appeals his conviction for

      maintaining a common nuisance, a Level 6 felony, Ind. Code § 35-48-4-

      13(b)(2).


[2]   We affirm.


                                                   ISSUES
[3]   Clark presents two issues for our review, which we restate as follows:


          (1) Whether the trial court abused its discretion by admitting into evidence

              the marijuana found in a package and in Clark’s basketball shorts; and

          (2) Whether the trial court properly instructed the jury.


                      FACTS AND PROCEDURAL HISTORY
[4]   On the morning of September 30, 2014, United States Postal Inspector, Steven

      Sadowitz (Sadowitz), contacted the Porter County Drug Task Force regarding a

      suspicious package that was received at the mail processing and distribution

      center in Gary, Indiana. His suspicion was aroused due to the package’s weight

      of approximately nineteen pounds, its shipment address in San Francisco, and

      its delivery address in Northwest Indiana. Sadowitz transported the package to

      the Portage Police Department where a canine conducted an open-air sniff and

      alerted on the package.


[5]   Deciding to make a controlled delivery of the package in conjunction with the

      Drug Task Force, Sadowitz obtained a carrier uniform and vehicle. When he

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 2 of 13
      arrived at the address listed on the package, a man, later identified as Clark,

      opened the door of the residence. Sadowitz announced that he had a package

      for Eric Morris, to which Clark replied, “That’s me.” (Transcript Vol. II, p.

      138). While Clark signed the delivery slip for the package, Sadowitz smelled

      “quite an odor of marijuana” coming from the open door to the house. (Tr.

      Vol. II, p. 138). After Clark signed for the package, officers, who had been

      conducting surveillance, approached the residence.


[6]   Porter County Sheriff’s Detective James Gaskill (Detective Gaskill)

      “immediately smelled marijuana.” (Tr. Vol. II, p. 164). Detective Gaskill

      secured the residence with a protective sweep, placed Clark in handcuffs, and

      advised him of his Miranda rights. During the protective sweep, Detective

      Gaskill located a mason jar with marijuana and burnt roaches in the master

      bedroom. Detective Gaskill inquired about the strong odor of marijuana and

      Clark admitted that he had “just smoked a joint.” (Tr. Vol. II, p. 177). When

      Clark denied being Eric Morris, Detective Gaskill asked to see his

      identification. After Clark advised that his identification was in the pocket of

      his basketball shorts, Portage Police Officer Joshua Dobson (Officer Dobson)

      retrieved his shorts. Reaching in the inside pocket of the shorts, the officer

      found marijuana, cash, and Clark’s identification. Detective Gaskill sought a

      search warrant for the house and the package. Once the search warrant for the

      package was obtained and the package was opened, the officers located 10.6

      pounds of marijuana inside.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 3 of 13
[7]   On October 6, 2014, the State filed an Information, charging Clark with Count

      I, dealing in marijuana, a Level 5 felony; and Count II, maintaining a common

      nuisance, a Level 6 felony. On June 1, 2015, Clark filed a motion to suppress

      the evidence discovered as a result of the protective sweep and the search

      warrant. On September 26, 2016, the trial court conducted a hearing on Clark’s

      motion. Following the hearing, the trial court issued an order granting the

      motion to suppress with regard “to anything that was taken inside the residence

      pursuant to the search warrant that was issued.” (Appellant’s App. Vol. II, p.

      44). The trial court denied the motion “as to the contents of the package that

      was kept outside the residence during the entire proceeding.” (Appellant’s App.

      Vol. II, p. 44). Clark sought an interlocutory appeal of the trial court’s order,

      which this court declined to accept.


[8]   On September 18 through 19, 2018, the trial court conducted a jury trial. After

      Officer Dobson testified that the package had been brought inside the residence,

      Clark renewed his motion to suppress based upon the trial court’s previous

      order suppressing the evidence of anything that was taken inside the residence.

      The trial court denied the renewed motion, explaining that it was “poor

      wording” on the court’s part and that its “intention was that anything dealing

      with that package that was delivered was not suppressed, regardless of where it

      ended up.” (Tr. Vol. II, p. 162). At the close of the evidence, the jury returned

      a guilty verdict on the Level 6 felony maintaining a common nuisance and

      found Clark not guilty of the Level 5 felony dealing in marijuana. On January




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 4 of 13
       7, 2019, during the sentencing hearing, the trial court imposed a sentence of one

       year, suspended entirely to probation.


[9]    Clark now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
                                            I. Admission of the Evidence


[10]   Clark contends that the trial court abused its discretion when it admitted the

       evidence found in the package and in Clark’s basketball shorts. The general

       admission of evidence at trial is a matter we leave to the discretion of the trial

       court. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). We review a trial

       court’s determination for 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. However, where a trial

       court’s ruling pertains to the constitutionality of a search or seizure, the trial

       court’s decision is reviewed de novo. Garcia v. State, 47 N.E.3d 1196, 1199 (Ind.

       2016).


                                              A. Search of the Package


[11]   Relying on the Fourth Amendment to the United States Constitution and

       Article I, Section 11 of the Indiana Constitution, 1 Clark claims that the



       1
         Although Clark cites to the relevant provisions of the Indiana Constitution and notes that the review is
       analytically distinct, he fails to develop this argument. Therefore, any claim under the Indiana Constitution
       is waived. Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019                 Page 5 of 13
       marijuana in the package was discovered pursuant to an illegal warrant. He

       maintains that because the illegally obtained evidence of the protective sweep

       was used to bolster the probable cause of the search warrant for the package, the

       package’s search warrant is invalid.


[12]   In general, the ordinary remedy for an unconstitutional search is exclusion of

       the evidence obtained “in a prosecution against the victim of the unlawful

       search . . . absent evidence of a recognized exception.” Clark v. State, 994

       N.E.2d 252, 260 (Ind. 2013). The Fourth Amendment to the United States

       Constitution requires probable cause for the issuance of a search warrant.

       Mehring v. State, 884 N.E.2d 371, 376-77 (Ind. Ct. App. 2008), trans. denied.


               Probable cause is a fluid concept incapable of precise definition
               and is to be decided based on the facts of each case. In deciding
               whether to issue a search warrant, the issuing magistrate’s task is
               simply to make a practical, common-sense decision whether,
               given all the circumstances set forth in the affidavit, there is a fair
               probability that evidence of a crime will be found in a particular
               place. The reviewing court’s duty is to determine whether the
               issuing magistrate had a substantial basis for concluding that
               probable cause existed. A substantial basis requires the reviewing
               court, with significant deference to the magistrate’s
               determination, to focus on whether reasonable inferences drawn
               from the totality of the evidence support the finding of probable
               cause. A reviewing court, for this purpose includes both the trial
               court ruling on a suppression motion and an appellate court
               reviewing that decision. . . . [W]e will not invalidate a warrant
               by interpreting probable cause affidavits in a hypertechnical,
               rather than a common[-]sense, manner.


       Id. at 376-77 (quotation marks and citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 6 of 13
[13]   In support of his argument that the package was opened pursuant to an invalid

       search warrant, Clark refers this court to Esquerdo v. State, 640 N.E.2d 1023

       (Ind. 1994). In Esquerdo, police officers forcibly entered a residence without a

       search warrant after the confidential informant, who had just conducted a

       controlled buy at the residence, informed them that Esquerdo was about to

       leave and could be destroying evidence. Id. at 1025. After securing the

       residence, the officers obtained a search warrant. Id. Our supreme court

       concluded that in issuing the search warrant, the issuing magistrate relied upon

       contraband observed during the illegal entry of the residence. Id. at 1030. As a

       result, the supreme court declared the search warrant to be invalid. Id. “To

       allow use of the bad evidence would give the police incentive to enter the

       residence, without a judicially-issued warrant, and search for evidence to bolster

       any evidence supporting probable cause that the police already possess. This is

       plainly what the constitutional protections against unreasonable searches

       restrict against.” Id. at 1030.


[14]   Clark’s reliance on Esquerdo is misplaced. It is a well-recognized legal premise

       that “where a search warrant is based on both legally obtained information and

       information obtained in contravention of the Fourth Amendment,” this court

       “will determine the legitimacy of the warrant only in light of the legally

       obtained information.” Perez v. State, 27 N.E.3d 1144, 1153 (Ind. Ct. App.

       2015), trans. denied. If probable cause remains to support the warrant after the

       illegally obtained information is excised from the warrant application, the

       warrant is still valid and its fruits are admissible. Id. at 1153-54. Here, excising

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 7 of 13
       from the probable cause affidavit the information obtained during the illegal

       protective sweep—a mason jar with marijuana and burnt roaches—the issuing

       magistrate still had sufficient information to “make a practical common-sense

       decision [that], given all the circumstances set forth in the affidavit, there is a

       fair probability that evidence of a crime will be found in a particular place.”

       Mehring, 884 N.E.2d at 377-78.


[15]   The record reflects that, after Sadowitz became suspicious about the package, a

       drug detection dog alerted on the presence of controlled substances in the

       package. See State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010) (a drug dog’s

       alert to the presence of controlled substances is sufficient to establish probable

       cause). Additionally, the search warrant noted that when an officer spoke to

       Clark by the open door to the house, the officer smelled a strong odor of

       marijuana coming from inside the residence. See Miller v. State, 846 N.E.2d

       1077, 1083 (Ind. Ct. App. 2006) (the strong and distinctive odor of marijuana

       coming from the defendant’s vehicle provided probable cause to search the

       vehicle). Accordingly, we conclude that the trial court properly admitted

       evidence that was discovered pursuant to the search warrant for the package

       which was supported by probable cause due to the canine alert and the strong

       marijuana odor emanating from the residence. The information gained from

       the illegal protective sweep was not necessary to the finding of probable cause

       to open the package, and thus the warrant remained valid.


                                          B. Clark’s Basketball Shorts



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 8 of 13
[16]   Next, Clark maintains that the trial court abused its discretion by admitting the

       evidence found in his basketball shorts which was obtained in violation of his

       Pirtle rights. After being placed in handcuffs and advised of his Miranda rights,

       he claims that he “was entitled to be advised of his right to an attorney prior to

       consenting to any search of his basketball shorts [by the officer] to obtain his

       identification[.]” (Appellant’s Br. p. 16).


[17]   Under Article 1, Section 11 of the Indiana Constitution, “a person who is asked

       to give consent to search while in police custody is entitled to the presence and

       advice of counsel prior to making the decision whether to give such consent.”

       Pirtle v. State, 323 N.E.2d 634, 640 (Ind. 1975). It is undisputed that Clark was

       not issued this advisement. Thus, whether the evidence must be suppressed

       turns on whether Clark was in custody at the time consent was requested. See

       Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009).


[18]   However, the officers did not request permission to search Clark’s shorts.

       When Clark was asked to confirm his identity, he informed the officers that his

       identification was in his shorts. When the officer retrieved the shorts that Clark

       referred to, he reached inside the pocket to verify Clark’s identification; the

       officer was not searching for contraband. Our supreme court has noted that the

       word “search” connotes uncovering that which is hidden, prying into hidden

       places for that which is concealed, or an exploratory investigation or quest.

       Alcorn v. State, 265 N.E.2d 413, 416 (Ind. 1970). Here, there is no evidence of

       an exploratory quest; rather, the officer merely sought to procure Clark’s

       identification from the location Clark indicated it could be located—his shorts.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 9 of 13
       Therefore, no Pirtle warning was required and the trial court properly admitted

       the evidence found in Clark’s basketball shorts.


                                               II. Jury Instruction


[19]   Lastly, Clark contends that the trial court abused its discretion in instructing the

       jury on the elements of the Level 6 felony maintaining a common nuisance.

       Specifically, he claims that the State charged him with “unlawfully keeping”

       controlled substances, while the trial court instructed the jury that they had to

       find that Clark “unlawfully used” a controlled substance. See I.C. § 35-48-4-

       13(b)(1) & (b)(2).


[20]   As an initial matter, the State posits that Clark waived this argument. We

       agree. Indiana Appellate Rule 46(A)(8)(e) mandates that “[w]hen error is

       predicated on the giving or refusing of any instruction, the instruction shall be

       set out verbatim in the argument section of the brief with the verbatim objections,

       if any, made thereto.” An appellant’s failure to comply with Appellate Rule

       46(A)(8)(e) results in waiver of the claimed error. Lahr v. State, 640 N.E.2d 756,

       763 (Ind. Ct. App. 1994). Clark failed to include the tendered instruction in his

       Brief and has consequently waived any error.


[21]   Waiver notwithstanding, Clark did not carry his burden of proof in establishing

       that the trial court abused its discretion by instructing the jury. The tendered

       instruction stated,


               The crime of maintaining a common nuisance is defined by law
               as follows:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 10 of 13
               A person who knowingly or intentionally maintains a building,
               structure, or other place that is used for the purpose of unlawfully
               using, keeping, or delivering a controlled substance commits
               maintaining a common nuisance, a Level 6 felony.
               To convict the Defendant, the State must have proved each of the
               following beyond a reasonable doubt:
               1. The Defendant;
               2. Knowingly or intentionally;
               3. Maintained a building, structure, or other place;
               4. That was used for the purpose of unlawfully using, keeping,
                   or delivering a controlled substance.
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               Maintaining a Common Nuisance, a Level 6 felony.

       (Appellant’s App. Vol. II, p. 103).


[22]   Clark does not contend that the jury instruction was an inaccurate statement of

       the law; rather Clark alleges, without referring to any supporting caselaw, that

       the trial court should not have included the word ‘using’ in the instruction

       because the charging Information and probable cause affidavit only referred to

       ‘keeping’ a controlled substance.


[23]   At the time when Clark committed the crime in 2014, maintaining a common

       nuisance was defined in subsection (b) as:


               A person who knowingly or intentionally maintains a building,
               structure, vehicle, or other place that is used one (1) or more
               times:
               (1) By persons to unlawfully use controlled substances; or
               (2) For unlawfully
                   (A) Manufacturing;
                   (B) Keeping;
                   (C) Offering for sale;
                   (D) Selling;


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 11 of 13
                   (E) Delivering; or
                   (F) Financing the delivery of;
                   controlled substances, or items of drug paraphernalia, as
                   described in [I.C. §] 35-48-4-8-5; commits maintaining a
                   common nuisance, a Level 6 felony.

       Accordingly, pursuant to the statute applicable in 2014, a person can be

       convicted of maintaining a common nuisance as a Level 6 felony by

       maintaining a building that is used by persons using controlled substances or for

       unlawfully keeping controlled substances.


[24]   The jury heard evidence and arguments from both parties that focused on the

       ‘keeping’ element of the charge. Clark now fails to explain how he could have

       been harmed by the trial court’s inclusion of the language from the statute

       regarding ‘using’ a controlled substance in addition to also referring to ‘keeping’

       a controlled substance. As noted by the State, a person cannot use what he

       does not keep. In order for a person to use a controlled substance, the person

       must first have or keep the controlled substance. Thus, to the extent that the

       jury found that Clark’s home was used to receive and consume the controlled

       substance, the jury would also have necessarily found that he had been using

       the home to keep the controlled substances. Accordingly, we conclude that the

       trial court properly instructed the jury on the charge.


                                             CONCLUSION
[25]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in admitting the marijuana found in the package and in Clark’s

       basketball shorts; and the trial court properly instructed the jury.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 12 of 13
[26]   Affirmed.


[27]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-283 | September 24, 2019   Page 13 of 13
