Pursuant to Ind. Appellate Rule 65(D), this
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:

YVETTE M. LaPLANTE                                   GREGORY F. ZOELLER
Keating & LaPlante, LLP                              Attorney General of Indiana
Evansville, Indiana
                                                     BRIAN REITZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                               Jul 24 2014, 8:44 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY A. JONES,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 82A04-1312-CR-627
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Wayne S. Trockman, Judge
                            Cause No. 82D02-1105-FA-543



                                           July 24, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Larry A. Jones appeals his conviction for class A felony dealing in cocaine. The sole

restated issue for our review is whether the trial court abused its discretion when it admitted

the cocaine evidence obtained during a patdown search of Jones’s person and during the

subsequent search of the apartment in which he had been residing. Finding no abuse of

discretion, we affirm.

                              Facts and Procedural History

       In 1993, Jones was convicted of the attempted murder of Shareka Bentley, the mother

of his three children. Jones shot Bentley and, as a result, Bentley became paralyzed and is

now confined to a wheelchair. After Jones was released from prison and placed on parole, he

and Bentley married in June 2010. In May 2011, Bentley was renting an apartment in

Vanderburgh County and Jones was living there with her at least part-time. On May 20,

2011, Bentley called 911 to report a parole violation by Jones. Specifically, Bentley reported

that Jones had a handgun in the apartment and that he was also in possession of narcotics.

       Evansville Police Officer Hank Wheeler was dispatched to the scene. When arriving

at the apartment, Officer Wheeler observed two individuals sitting on the front porch. He

then drove to the alley behind the building. Officer Wheeler observed a female exit the back

of the apartment, followed by Jones. Officer Wheeler identified himself to Jones and asked

if he could speak with him. Jones “cordially” obliged and began walking toward Officer




                                              2
Wheeler. Supp. Tr. at 8.1 However, as he approached Officer Wheeler, Jones began reaching

toward his pocket. Officer Wheeler asked Jones not to reach into his pocket and then asked

Jones if he could do a patdown search. Jones said, “Yes go ahead.” Id. Officer Wheeler

could see a bulge in Jones’s front pants-pocket. During the patdown search, Officer Wheeler

felt the bulge and believed it to be a large amount of cash. Officer Wheeler asked Jones if he

could reach into his pocket and Jones consented by saying, “Sure go ahead.” Id. at 9. Officer

Wheeler pulled out a roll of cash which was wrapped around a clear baggie of a large off-

white rock-like substance that Officer Wheeler believed to be cocaine. Officer Wheeler

handcuffed Jones and gave him his Miranda warnings. The substance was later determined

to be 19.6 grams of cocaine and the cash from Jones’s pocket totaled $1980.

        Based upon Officer Wheeler’s discovery and statements from Bentley and other

family members regarding the presence of a handgun and additional narcotics in the

apartment, officers obtained and executed a search warrant for the apartment. The officers

searched the bedroom and discovered Jones’s identification attached to his keys sitting on the

bed. They found a baggie of individually wrapped rocks of cocaine under pillows on the bed.

They also found another bag of cocaine and a handgun between the mattress and box spring.

The cocaine found in the apartment totaled 275.7 grams.

        The State charged Jones with class A felony dealing in cocaine and class B felony

unlawful possession of a firearm by a serious violent felon. Jones filed a motion for



        1
           While we will cite to the jury trial transcript as “Tr.,” we will refer to the separately paginated
transcript of the motion to suppress hearing as “Supp. Tr.”


                                                      3
severance of the counts and a motion to suppress evidence obtained during the patdown

search of his person as well as evidence obtained during the search of the residence. The trial

court later granted the motion for severance without objection from the State. Following a

suppression hearing on February 13, 2012, the trial court denied Jones’s motion to suppress.

On September 25, 2013, the jury trial began on Jones’s class A felony dealing in cocaine

charge. At the conclusion of trial, the jury found Jones guilty. The trial court later sentenced

Jones to forty-seven years’ imprisonment. This appeal followed.

                                  Discussion and Decision

        Jones originally challenged the admissibility of the cocaine evidence through a

pretrial motion to suppress, which was denied by the trial court. Because he now appeals

following a jury trial, the issue before us is whether the trial court abused its discretion in

admitting the evidence at trial. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009),

trans. denied (2010). A trial court has broad discretion in ruling on the admission or

exclusion of evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans.

denied. An abuse of discretion occurs when the trial court’s ruling is clearly against the

logic, facts, and circumstances presented. Id. When reviewing the admissibility of evidence,

we do not reweigh evidence, and we consider conflicting evidence most favorable to the trial

court’s ruling. 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.




                                               4
                               Section 1- Consensual Search

       Jones first contends that the trial court abused its discretion when it admitted the

evidence obtained during Officer Wheeler’s search of his pocket. Although Jones concedes

that he consented to the search of his pocket, he argues that his consent was invalid because

Officer Wheeler did not provide him with an advisement of his right to the presence and

advice of counsel prior to requesting his consent. In Pirtle v. State, 263 Ind. 16, 29, 323

N.E.2d 634, 640 (1975), our supreme court held that a person held in police custody is

entitled to the presence and advice of counsel prior to consenting to a search and that right, if

waived, must be explicitly waived. Therefore, the threshold question when considering

Pirtle rights is whether the defendant was in custody when he was asked for consent. See

Garcia-Torres v. State, 949 N.E.2d 1229, 1238 (Ind. 2011).

       In determining whether a defendant was in custody when consent was requested,

courts consider all circumstances surrounding the encounter. Meredith, 906 N.E.2d at 873.

“Custody is determined by an objective test: whether reasonable persons under the same

circumstances would believe they were in custody or free to leave.” Campos v. State, 885

N.E.2d 590, 601 (Ind. 2008). “Pirtle and its progeny police the line between ordinary

investigative detentions and full-blown custodial interrogations by examining the

circumstances for objectively overpowering, coercive, or restraining police behavior, such

that the facts demonstrate ‘a degree associated with a formal arrest.’” Meredith, 906 N.E.2d

at 873-74 (quoting Melton v. State, 705 N.E.2d 564, 566 (Ind. Ct. App. 1999)).




                                               5
       Here, we cannot conclude that Officer Wheeler’s request for consent to search Jones’s

pocket rose to the level of coercive or restraining police behavior required to entitle Jones to

the presence and advice of counsel prior to giving consent. The duration of Officer

Wheeler’s encounter with Jones was incredibly brief and, from all indications, cordial. After

being given permission to conduct a patdown search of Jones’s person, and then feeling what

appeared to be a large amount of cash in Jones’s pocket, Officer Wheeler asked for consent

to reach into a single pocket. Jones immediately obliged and consented. There is no

contention that Officer Wheeler coerced Jones into consenting or that Officer Wheeler

engaged in any objectively overpowering behavior prior to requesting consent. Accordingly,

Jones was not in custody at the time his consent was requested, and no Pirtle advisement was

necessary. Under the circumstances, the trial court did not abuse its discretion in admitting

evidence obtained during the search of Jones’s pocket.

                         Section 2 – Search Pursuant to Warrant

       We next address Jones’s contention that the trial court abused its discretion in

admitting evidence obtained during the search of the apartment because the affidavit upon

which the search warrant was based was defective. We disagree with Jones.

       “The task of the issuing magistrate when receiving a request for a search warrant is to

make a common sense determination, based on the totality of the circumstances, that there is

a fair probability that a particular place contains evidence of a crime.” Mitchell v. State, 745

N.E.2d 775, 784 (Ind. 2001). “Search warrants are presumed valid, and ‘where a presumption

of the validity of a search warrant exists, the burden is upon the defendant to overturn that


                                               6
presumption.’” Speer v. State, 995 N.E.2d 1, 7 (Ind. Ct. App. 2013) (quoting Jones v. State,

783 N.E.2d 1132, 1136 (Ind. 2003), trans. denied (2004)), trans. denied. Specifically, we

have explained,

       If a defendant establishes by a preponderance of the evidence that “a false
       statement knowingly and intentionally, or with reckless disregard for the truth,
       was included by the affiant in the warrant affidavit, … and, with the affidavit’s
       false material set to one side, the affidavit’s remaining content is insufficient to
       establish probable cause, the search warrant must be voided and the fruits of
       the search excluded to the same extent as if probable cause was lacking on the
       face of the affidavit.”

Stephenson v. State, 796 N.E.2d 811, 815 (Ind. Ct. App. 2003) (quoting Franks v. Delaware,

438 U.S. 154, 155-56 (1978)), trans. denied. “Mistakes and inaccuracies in search warrant

affidavits will not ‘vitiate the reliability of the affidavits so long as such mistakes were

innocently made.’” Mitchell, 745 N.E.2d at 785 (quoting Utley v. State, 589 N.E.2d 232,

236-37 (Ind. 1992)). The party alleging that a mistake was not innocent must make a

substantial showing that the facts were included in reckless disregard for the truth. Id.

       Here, the search warrant affidavit for the apartment was completed by Evansville

Police Detective Jeff Breivogel. Detective Breivogel completed the affidavit based upon

information provided to him from Officer Wheeler regarding the cocaine found on Jones’s

person, as well as ample information from Jones’s family members regarding the presence of

a handgun and additional cocaine inside the residence. Jones takes issue with the inaccurate

statement in the affidavit that, “[d]uring the pat-down the officer felt what he immediately

recognized through his training and experience to be narcotics in Jones’ pants pocket.”

Appellant’s App. at 165. The record is clear that during the patdown search, Officer Wheeler


                                                7
recognized the bulge in Jones’s pants not as narcotics but rather as a large sum of money, and

that Jones subsequently consented to a search of his pocket resulting in the discovery of

cocaine.

       Despite the inaccurate statement in the affidavit, Jones has not shown by a

preponderance of the evidence that the inaccuracy was included knowingly or intentionally or

in reckless disregard for the truth. Detective Breivogel testified, “[Officer Wheeler] said that

when he patted him down he felt a wad in his pants pocket. To my recollection he told me he

automatically thought it was narcotics and that’s the information that I used for my search

warrant.” Tr. at 82-83. Detective Breivogel explained that the resulting misstatement in the

affidavit was “an oversight on my part on translation on what was said … when I talked to

[Officer Wheeler] briefly before I wrote the affidavit.” Supp. Tr. at 49. Contrary to Jones’s

contention, it appears that the inaccurate statement was innocently made.

       Moreover the inaccuracy regarding exactly how Officer Wheeler discovered the

cocaine in Jones’s pocket, by immediate patdown-feel or consensual search, is insignificant

in light of the fact that Officer Wheeler discovered cocaine in Jones’s pocket. The relevant

facts for probable cause to search the residence were the discovery of cocaine on Jones’s

person coupled with statements from family members that Jones, a parolee, had a gun hidden

and additional narcotics in the residence. Looking at the totality of the evidence contained in

the affidavit, the magistrate had a substantial basis for concluding that there was a fair

probability that contraband or evidence of a crime would be found in the apartment. As the




                                               8
search warrant was properly granted, the trial court’s admission of evidence obtained

therefrom was not an abuse of discretion.

      Affirmed.

BAKER, J., and BARNES, J., concur.




                                            9
