ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                   Gregory F. Zoeller
South Bend, Indiana                                   Attorney General of Indiana

                                                      Karl M. Scharnberg
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana




                                            In the
                        Indiana Supreme Court                                       Aug 13 2014, 11:22 am



                                     No. 71S04-1310-CR-705

DOUGLAS A. GUILMETTE,
                                                              Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                              Appellee (Plaintiff below).


              Appeal from the St. Joseph Superior Court, No. 71D08-1012-MR-11
                        The Honorable Jane Woodward Miller, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 71A04-1205-CR-250



                                         August 13, 2014

Massa, Justice.


        This appeal presents us with a single question: must police have a warrant before
subjecting lawfully seized evidence to laboratory testing if that evidence is unrelated to the crime
for which the defendant is in custody? We think not, and thus we affirm the trial court.
                                 Facts and Procedural History


       On the evening of September 13, 2010, Doug Guilmette and his co-worker Greg Piechocki
were visiting the home of their employer, Kevin Rieder. Around 12:30 a.m., Rieder took a sleeping
pill and went to sleep in another room with the door closed and the fan on high. Sometime later,
Piechocki went to sleep in the second bedroom. During the early morning hours of September 14,
Guilmette entered that bedroom and stole Piechocki’s car keys and $280 in cash. Guilmette then
drove Piechocki’s car to Wal-Mart and Meijer, where he shoplifted several items of merchandise.
He returned to Rieder’s home around 7:00 a.m., parked Piechocki’s car on the street in front of the
house, and left again.


       That afternoon, Rieder discovered Piechocki’s body in the spare bedroom. A forensic
pathologist later determined Piechocki suffered at least ten blows to his head, causing multiple
skull fractures, and at least fifteen blows to his body—all consistent with being hit by a baseball
bat.


       Police questioned Guilmette, but he initially denied any involvement in the murder and
claimed he rode a bicycle to Wal-Mart and Meijer. At a second interview, however, after police
confronted Guilmette with surveillance video showing him driving Piechocki’s car at both Wal-
Mart and Meijer, Guilmette admitted he took Piechocki’s keys and money. At the conclusion of
that interview, police arrested Guilmette on two counts of theft. They also seized his clothing,
including his shoes, in accordance with their standard booking protocols. When police inspected
Guilmette’s clothing, they found what appeared to be blood under the laces of his left shoe. Testing
revealed the presence of Piechocki’s DNA in that blood.


       The State charged Guilmette with four felonies: one count of murder, two counts of theft,
and one count of habitual offender status. Guilmette moved to suppress the DNA evidence found
on his shoe, arguing the police should have obtained a separate warrant before subjecting the shoe
to testing. After a hearing, the trial court denied that motion. Guilmette was convicted on all
charges, and the trial court sentenced him to ninety-two years of imprisonment.


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        Guilmette appealed, arguing (1) the evidence was insufficient to support his conviction, (2)
the trial court erred by giving the State’s tendered instruction on accessory liability, and (3) the
trial court erred by denying his motion to suppress the DNA evidence found on his shoe. In a
published opinion, a panel of our Court of Appeals affirmed the trial court. Guilmette v. State,
986 N.E.2d 335, 343 (Ind. Ct. App. 2013). As to the DNA evidence from Guilmette’s shoe, the
panel stated it should not have been admitted but found the error harmless because “the DNA
evidence from the shoe was not the strongest evidence of guilt” and four separate and independent
witnesses testified Guilmette had confessed the crime to them. Id. at 341.


        We granted transfer, thereby vacating the opinion below. Guilmette v. State, 996 N.E.2d
327 (Ind. 2013) (table); Ind. Appellate Rule 58(A).




                                           Standard of Review


        As a procedural matter, Guilmette contends the trial court should have granted his motion
to suppress the DNA evidence. But because his case proceeded to trial where he renewed his
objection to the admission of that evidence, his appeal is better framed as a request to review the
trial court’s ruling on its admissibility. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013) (“Direct
review of the denial of a motion to suppress is only proper when the defendant files an interlocutory
appeal.”).1




1
  The difference between the standard of review we apply to the trial court’s ruling on a motion to suppress
evidence and the standard of review we apply to the trial court’s ruling on the admissibility of evidence at
trial lies in the facts the trial court can consider when making its decision. Clark, 994 N.E.2d at 259 n.9. If
the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court
must make its decision based upon trial evidence and may consider hearing evidence only if it does not
conflict with trial evidence. Id. (citing Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005)). But the
trial court should consider any hearing evidence that is favorable to the defendant and uncontradicted by
trial evidence. Id. (citing Kelley, 825 N.E.2d at 426). In this particular case, the distinction is largely


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         The trial court has broad discretion to rule on the admissibility of evidence. Id. at 259–60.
We review its rulings “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. But when an appellant’s challenge to such a ruling is predicated on an argument that
impugns the constitutionality of the search or seizure of the evidence, it raises a question of law,
and we consider that question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).




    The Trial Court Did Not Err by Admitting the DNA from Guilmette’s Shoe Into Evidence
                                       Against Him.


         Guilmette argues the admission of the DNA evidence violated Article 1, Section 11 of our
Indiana Constitution because the police arrested him for one crime (theft) but seized his shoe to
search for evidence of a different crime (murder).2 Thus, Guilmette concludes, the DNA test was




irrelevant; when the State sought to admit the DNA from the shoe into evidence against Guilmette at trial,
Guilmette’s counsel stated “Just to be consistent with my motion to suppress, I’ll object[ ],” and the court
replied, “All right. For the reasons that I outlined at that hearing, I am overruling that objection.” Tr. at
81.
2
  Guilmette did not include his Motion to Suppress in his Appellant’s Appendix, and the State argues he
thereby waived the suppression issue for our review. Our Appellate Rules say otherwise, however; “failure
to include any item in an Appendix shall not waive any issue or argument.” Ind. Appellate Rule 49(B).
And as we explained above, Guilmette’s appeal is properly framed not as a challenge to the trial court’s
denial of his pre-trial motion to suppress the DNA but as a challenge to the trial court’s decision to admit
the DNA into evidence against him at trial.

         Nevertheless, we remind counsel that the Appendix must include “the Clerk’s Record,” Ind.
Appellate Rule 50(B)(1)(a), which comprises “the Chronological Case Summary (CCS) and all papers,
pleadings, documents, orders, judgments, and other materials filed in the trial court or Administrative
Agency or listed in the CCS.” Ind. Appellate Rule 2(E) (emphasis added). What is more, before the final
reply brief is filed, counsel has an opportunity to remedy any inadvertent omission by filing a supplemental
Appendix without leave of court. Ind. Appellate Rule 49(A). We appreciate counsel’s inclusion of the
Motion to Suppress as an exhibit to his Response to the State’s Petition for Rehearing in the Court of
Appeals, but we also encourage all parties to comply with our Appellate Rules so as to facilitate our
thorough review of the case before us.



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not a valid search incident to arrest, and the police should have had a warrant before performing
it. We disagree.

               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.

Ind. Const. art. 1, § 11. When determining whether a search comports with this provision, we
evaluate “the reasonableness of the police conduct under the totality of the circumstances.”
Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). In that evaluation, we consider “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,” as well as any other relevant factors. Id. at 361. We have said before
“that the police can search without a warrant if it is incident to a valid arrest,” Sears v. State, 668
N.E.2d 662, 666 (Ind. 1996), and Guilmette does not here challenge the validity of his arrest.


       Although the admissibility of the DNA evidence under Section 11 is a question of first
impression, the admissibility of that same evidence under the federal Fourth Amendment is well-
established. In U.S. v. Edwards, 415 U.S. 800 (1974), the defendant was charged with attempting
to break into a Post Office. Id. at 801. After police investigated the crime scene and found
loosened paint chips at the point of entry, they seized the defendant’s clothes, tested the debris on
them, and matched it to a sample from the crime scene. Id. at 801–02. The results of that test were
admitted into evidence against the defendant at trial, over his objection that police seized his
clothes without a warrant in violation of his Fourth Amendment rights, and he was convicted. Id.
at 802. The defendant successfully appealed, but the Supreme Court granted certiorari and held
the search was constitutionally permissible. Id. The Court noted “searches and seizures that could
be made on the spot at the time of arrest may legally be conducted later when the accused arrives
at the place of detention,” and added: “Nor is there any doubt that clothing or other belongings
may be seized upon arrival of the accused at the place of detention and later subjected to laboratory
analysis or that the test results are admissible at trial.” Id. at 803–04. It concluded: “Indeed, it is



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difficult to perceive what is unreasonable about the police’s examining and holding as evidence
those personal effects of the accused that they already have in their lawful custody as the result of
a lawful arrest.” Id. at 806 (emphasis added); see also Akins v. State, 429 N.E.2d 232, 238 (Ind.
1981) (concluding the Fourth Amendment permitted police to examine defendant’s clothing after
they seized it pursuant to a lawful arrest).


       And we see no reason to reach a different result under our own state constitution. Police
had a justifiably strong suspicion that Guilmette had murdered Piechocki; Guilmette lied about his
activities during the relevant time period, stole Piechocki’s money and keys, and had what
appeared to be (and in fact was) blood on his shoe. The intrusion on Guilmette’s ordinary activities
was minimal, as officers routinely seize an arrestee’s personal effects, including clothing, as part
of the booking procedure. Finally, although there was no exigency requiring immediate testing of
the blood on the shoe, it would be extremely cumbersome to require law enforcement to take the
“belt-and-suspenders” approach of applying for an independent warrant anytime they wish to
examine or test a piece of evidence they have already lawfully seized.


       Nor does it matter that the test revealed evidence of a different crime from that for which
Guilmette was arrested. In Farrie v. State, 255 Ind. 681, 266 N.E.2d 212 (1971), the defendant
was arrested for possession of narcotics; incident to his arrest, police confiscated his personal
effects, including a wristwatch. Id. at 681, 266 N.E.2d at 213. One of the officers recognized the
watch as stolen property, and the defendant was subsequently charged with and convicted of
burglary. Id., 266 N.E.2d at 213. He appealed, arguing the warrantless seizure of the watch was
not incidental to his arrest and was therefore illegal, and that the watch should not have been
admitted into evidence against him. Id. at 682, 266 N.E.2d at 213. We rejected that argument,
stating: “A search incidental to a valid arrest is lawful regardless of what it reveals.” Id. at 683,
266 N.E.2d at 214. Just so here. Guilmette was arrested and his clothing seized pursuant to
standard police procedure. Any subsequent search of that clothing, regardless of the means used
or the evidence found, was therefore permissible as a search incident to a lawful arrest. Section
11 requires nothing more.




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                                            Conclusion


       We hold that evidence properly seized by police may be examined and subjected to
scientific testing without further warrant, and we therefore conclude the trial court did not err by
admitting the DNA found on Guilmette’s shoe into evidence against him. As to the other issues
Guilmette raises on appeal, we believe the panel below correctly decided them, and we therefore
summarily affirm the portions of the opinion holding (1) the trial court did not abuse its discretion
by giving the State’s tendered jury instruction on accomplice liability and (2) the evidence was
sufficient to support Guilmette’s murder conviction. Guilmette, 986 N.E.2d at 342; Ind. Appellate
Rule 58(A)(2).


Dickson, C.J., and Rucker, David, and Rush, JJ., concur.




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