Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                        Feb 25 2014, 8:06 am
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:

BRANDON E. MURPHY                                   GREGORY F. ZOELLER
Cannon & Bruns                                      Attorney General of Indiana
Muncie, Indiana
                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN R. PUGSLEY,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No.05A02-1306-CR-517
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE BLACKFORD SUPERIOR COURT
                            The Honorable J. Nicholas Barry, Judge
                               Cause No. 05D01-1212-FD-424



                                        February 25, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       John R. Pugsley appeals his convictions, following a jury trial, of possession of

methamphetamine1 as a Class D felony and possession of paraphernalia 2 as a Class A

misdemeanor. On appeal, Pugsley contends that the trial court erred in admitting evidence

seized without a warrant.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On December 1, 2012, during “deer firearm season,” a Department of Natural

Resources (“DNR”) Law Enforcement Officer, Joshua Kilgore, saw a vehicle parked on

County Road 300 West, near a wooded area north of County Road 500 North, in Blackford

County, Indiana. When Officer Kilgore noted that no one was in the vehicle, he assumed

that the occupants were hunting. As a DNR officer, Officer Kilgore is responsible for

ensuring that hunters have the appropriate license and are wearing the required “hunter

orange.” See Ind. Code § 14-22-38-7 (a) (defining “hunter orange”); Ind. Code § 14-22-

38-7 (c) (providing in pertinent part that a person who hunts for deer by firearm must wear

hunter orange).

       Officer Kilgore entered the private property and located Pugsley and his stepson.

Pugsley, who was carrying binoculars and a firearm, showed Officer Kilgore his valid

hunting license. Officer Kilgore, however, noted that Pugsley was wearing camouflage

clothing instead of the required hunter orange and asked Pugsley about the violation.

Pugsley responded that he had been wearing orange earlier, but that it must have fallen off.


       1
           See Ind. Code § 35-48-4-6.1.
       2
           See Ind. Code § 35-48-4-8.3.
                                             2
Officer Kilgore informed Pugsley that, for safety reasons, he would be unable to continue

hunting and asked Pugsley to meet him at the officer’s vehicle so that a citation could be

issued.

          As Pugsley picked up his belongings, Officer Kilgore noticed that he made a

suspicious movement with his hand, putting it behind his back. Concerned for officer

safety, Officer Kilgore asked to see what was in Pugsley’s hands. Pugsley showed the

officer that he had a plastic bag and some note paper, which he planned to use as a

transportation tag in the event he shot a deer. Officer Kilgore then noticed on the ground

near where Pugsley was standing, a white-colored, ceramic or glass smoking device

(“pipe”). Officer Kilgore determined from his training and experience that it was “not a

pipe that you would traditionally see . . . somebody smoking tobacco out of.” Tr. at 37.

Officer Kilgore picked up the pipe, which was not covered by any other object, and saw

white residue inside the bowl. When asked about the residue, Pugsley stated that it was

methamphetamine, and admitted that “he had been busy that last week and just wanted to

try it.” Id. at 12. The wooded area where Officer Kilgore encountered Pugsley was private

property; however, Pugsley stated that his stepson had received permission from the owner

to hunt on the land.

          Officer Kilgore arrested Pugsley and transported him to the Blackford County Jail.

On December 3, 2012, the State charged Pugsley with Count I, Class D felony possession

of methamphetamine, and Count II, Class A misdemeanor possession of paraphernalia. On

January 24, 2013, Pugsley filed a motion to suppress the pipe and the incriminating

statements made by Pugsley after the “illegal seizure of the pipe,” on the basis that Officer

                                               3
Kilgore did not have lawful authority to search and seize Pugsley’s effects, i.e., the pipe.

Appellant’s App. at 23-25. Following a hearing on the matter, the trial court denied

Pugsley’s motion, finding that Officer Kilgore seized the pipe while he was in a place he

had a legal right to be, after he had stopped Pugsley for committing the infraction of failing

to wear orange while hunting, and after he noticed the pipe in plain view and knew by his

training that the pipe was drug paraphernalia. Id. at 32-35.

        During trial, Pugsley objected to the admission of the pipe, raising again the issues

set forth in his motion to suppress and, additionally, contending that there was an

inadequate chain of custody.3 Tr. at 53. Pugsley also objected to the admission of the

incriminating statements he made to Officer Kilgore about the pipe. Id. at 42-44. The trial

court overruled both of Pugsley’s objections. Id. at 44, 53. The jury found Pugsley guilty

of both counts, and Pugsley now appeals.

                                DISCUSSION AND DECISION

        Pugsley contends that the trial court erred by denying his motion to suppress and by

overruling his objection to the introduction of the incriminating evidence at trial.

Specifically, Pugsley maintains that Officer Kilgore’s search and seizure of the pipe was




        3
         Pugsley does not raise the issue of chain of custody on appeal. Instead, he focuses solely on the
inadmissibility of the evidence on constitutional grounds.

                                                    4
made without either a search warrant or a valid exception to the search warrant

requirement, in violation of the Fourth Amendment to the United States Constitution.4

Although Pugsley initially challenged the admission of the pipe through a motion to

suppress, he is now appealing from a completed trial. Therefore, the issue is “appropriately

framed as whether the trial court abused its discretion by admitting the evidence at trial.”

Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. “When we

review a trial court’s ruling on the admissibility of evidence resulting from an allegedly

illegal search, we do not reweigh the evidence, and we consider conflicting evidence most

favorable to the trial court’s ruling.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App.

2010) (citing Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009)). We also defer to the

trial court’s factual determinations unless clearly erroneous. Id. However, we consider

“afresh any legal question of the constitutionality of a search or seizure.” Id. (quoting

Meredith, 906 N.E.2d at 869).

       Pugsley claims that he had a reasonable expectation of privacy in his personal

effects, including the pipe, and therefore, Officer Kilgore’s seizure of the pipe was the


       4
           In his appellate brief, Pugsley cites to his argument under the Indiana Constitution as follows:

       Indiana has its own equivalent to the Fourth Amendment in its State Constitution: Article
       I, Section 11. While almost identical in wording to the federal Fourth Amendment, the
       Indiana Constitution’s Search and Seizure clause is given an independent interpretation
       and application. To determine whether a search or seizure violates the Indiana
       Constitution, courts must evaluate the reasonableness of the police conduct under the
       totality of the circumstances.

Nevertheless, Pugsley fails to provide an independent analysis of Article I, Section 11 of the Indiana
Constitution; rather his focus is on the Fourth Amendment of the United States Constitution. Failure to
make a cogent argument under Article I, Section 11 of the Indiana Constitution constitutes waiver of the
issue on appeal. See Ind. Appellate Rule 46(A)(8); Polk v. State, 822 N.E.2d 239, 245 n.5 (Ind. Ct. App.
2005) (citing West v. State, 755 N.E.2d 173, 181 (Ind. 2001)), trans. denied.

                                                      5
product of an unconstitutional search in violation of the Fourth Amendment.5 The Fourth

Amendment protects persons from unreasonable searches and seizures and this protection

has been extended to the states through the Fourteenth Amendment. Ratliff v. State, 770

N.E.2d 807, 809-10 (Ind. 2002) (citing U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S.

643, 650 (1961)). As a general rule, the Fourth Amendment prohibits warrantless searches,

but there are exceptions to the warrant requirement. Myers v. State, 839 N.E.2d 1146, 1150

(Ind. 2005).

        In order to implicate Fourth Amendment interests, the search must constitute a

“search” in the constitutional sense. Troyer v. State, 605 N.E.2d 1183, 1184 (Ind. Ct. App.

1993), trans. denied. Here, Officer Kilgore’s view of the pipe did not violate the Fourth

Amendment. As a DNR officer, Officer Kilgore is responsible for ensuring that hunters

have the appropriate license and are wearing the required “hunter orange.” See Ind. Code

§ 14-22-38-7 (a) (defining “hunter orange”); Ind. Code § 14-22-38-7 (c) (providing in

pertinent part that a person who hunts for deer by firearm must wear hunter orange).

Indiana Code section 14-22-39-3 provides, in pertinent part, that a conservation officer

may enter into or upon private property for the purpose of patrolling or investigating, if the

conservation officer has good reason to believe that he “will secure evidence of a violation

        5
          The State argues that the pipe was not illegally seized under the Fourth Amendment because
Pugsley had abandoned the pipe on property in which he had no expectation of privacy. Appellee’s Br. at
7-9. Additionally, claiming that the “plain view” and “open view” doctrines are applicable only where the
search was in a constitutionally protected area, the State maintains that, here, these doctrines are
inapplicable. Appellee’s Br. at 8. We note that while Officer Kilgore had the legal right to be on the
property in question, the character of the private property remained constitutionally protected. Furthermore,
the State’s position during both the suppression hearing and at trial was that the pipe was legally seized
under the “plain view” doctrine. Suppression Hr’g Tr. at 17-18; Tr. at 27-28, 42-43, 58, 69, 72. Finding
that the evidence was properly admitted under the plain view doctrine, we do not address the State’s
abandonment argument.

                                                     6
of this article.” 6 Officer Kilgore had a right to be on the private property to enforce the

DNR hunting laws.

        Officer Kilgore’s act of detaining Pugsley was legal.                    Here, Officer Kilgore

encountered Pugsley and noted that he was hunting without wearing hunter orange. A

person who violates the requirement to wear hunter orange commits a Class D infraction.

Ind. Code § 14-22-38-7(d). “‘It is well-settled that a police officer may briefly detain a

person whom the officer believes has committed an infraction or an ordinance violation.”

Datzek v. State, 838 N.E.2d 1149, 1154 (Ind. Ct. App. 2005) (quoting Peete v. State, 678

N.E.2d 415, 419 (Ind. Ct. App. 1997), trans. denied), trans. denied. See also Ind. Code §

34–28–5–3. Officer Kilgore briefly and legally detained Pugsley before telling him to meet

the officer at his car. It was during this short detention that Officer Kilgore noted the pipe.

        Officer Kilgore legally seized the pipe. During Officer Kilgore’s conversation with

Pugsley, the officer noticed the pipe on the ground in plain view. Under the plain view

doctrine, “if police are lawfully in a position from which they view an object, if its

incriminating character is immediately apparent, and if the officers have a lawful right of

access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508

U.S. 366, 375 (1993) (emphasis added) (citing Horton v. California, 496 U.S. 128, 136-37




        6
           Pugsley made no claim at his suppression hearing or during trial that Officer Kilgore had violated
this statute by entering the private property. Even if he had, his claim would have failed. The land did not
belong to Pugsley; and, thus, he lacked the standing to raise the issue of whether Officer Kilgore violated
the law when he entered onto private property. Shelton v. State, 679 N.E.2d 499, 504 (Ind. Ct. App. 1997).

                                                     7
(1990)).7 Noting that the pipe could have been used to smoke tobacco, Pugsley contends

that Officer Kilgore could not legally seize the pipe because its incriminating nature was

not immediately apparent.

        In Texas v. Brown, 460 U.S. 730, 741 (1983), the United States Supreme Court

clarified “that the use of the phrase ‘immediately apparent’ was very likely an unhappy

choice of words, since it can be taken to imply that an unduly high degree of certainty as

to the incriminatory character of evidence is necessary for an application of the ‘plain view’

doctrine.” Instead, “the seizure of property in plain view involves no invasion of privacy

and is presumptively reasonable, assuming that there is probable cause to associate the

property with criminal activity.” Id. at 741-42. Probable cause is a “flexible, common-

sense standard” requiring that the facts available to an officer would warrant a man of

reasonable caution in believing that an item “may be” contraband and does not require any

showing that the belief is correct or even that it is more likely true than false. Id. at 742;

see also State v. Figgures, 839 N.E.2d 772, 779 (Ind. Ct. App. 2005) (noting “immediately

apparent” test does not mean that officer must “know” that item is contraband but only that

he have probable cause to believe so; a “‘practical, nontechnical’ probability that

incriminating evidence is involved is all that is required.”), trans. denied.


        7
           Pugsley maintains that “open view” analysis applies here; instead of the “plain view” analysis
used by the trial court. Appellant’s Br. at 8-9. The concept of “open view” is used in situations in which a
law enforcement officer observes something from an area that is not constitutionally protected, but rather
is in a place where the officer is lawfully entitled to be. Justice v. State, 765 N.E.2d 161, 165 (Ind. Ct. App.
2002). “In such situations, anything that is within ‘open view’ may be observed without having to obtain
a search warrant because making such ‘open view’ observations do not constitute a search in the
constitutional sense.” Id. “The ‘plain view’ doctrine has been applied where a police officer is not
searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating
object.” Horton v. California, 496 U.S. 128, 135-36 (1990). While Pugsley maintains that “open view”
analysis applies here, we agree with the trial court, that the facts more properly fall within “plain view”
analysis.
                                                       8
       Officer Kilgore described the pipe that he saw on the ground as being fairly long,

made out of glass or a ceramic material, with a bowl on one side, and then a very long stem

with a mouthpiece on the end. Tr. at 37. From his training and experience, Officer Kilgore

determined that it was “not a pipe that you would traditionally see . . . somebody smoking

tobacco out of.” Id. The pipe’s incriminating character was immediately apparent to

Officer Kilgore, who picked up the pipe and saw white residue inside the bowl. When

asked about the residue, Pugsley did not deny that the pipe was his nor did he claim

ignorance of the contents; instead, he instantly responded that the residue was

methamphetamine, and admitted that “he had been busy that last week and just wanted to

try it.” Id. at 12. Therefore, we cannot say that the trial court erred in admitting the

evidence of the pipe and Pugsley’s statements at trial.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                             9
