                                                                      May 20 2015, 7:07 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                       Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Cynthia L. Ploughe
                                                                Katherine Modesitt Cooper
                                                                Deputies Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tiras D. Johnson,                                         May 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                48A05-1406-CR-269
              v.                                                Appeal from the Madison Circuit
                                                                Court

      State of Indiana,                                         The Honorable David A. Happe,
                                                                Judge
      Appellee-Plaintiff
                                                                Cause Nos. 48C04-0911-FC-667,
                                                                48C04-1201-FD-164




      Mathias, Judge.

[1]   Tiras Johnson (“Johnson”) appeals the Madison Circuit Court’s revocation of

      his probation and argues that the trial court abused its discretion when it denied

      his motion to suppress evidence seized during a warrantless search of his

      friend’s residence.



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[2]   We affirm.


                                     Facts and Procedural History

[3]   In December 2012, Johnson pleaded guilty in Madison Circuit Court to Class

      D felony assisting a criminal under Cause Number 48C04-0911-FC-667.

      Johnson was ordered to serve a twenty-four month sentence, with twelve

      months served on in-home detention and twelve months on probation. Johnson

      also pleaded guilty in Madison Circuit Court to Class D felony possession of

      marijuana and Class A misdemeanor possession of paraphernalia under Cause

      Number 48C04-1201-FD-164. Johnson was ordered to serve an aggregate

      twenty-four month sentence, which was entirely suspended to probation.

      However, Johnson was ordered to serve that sentence consecutive to the

      sentence imposed under Cause Number 48C04-0911-FC-667.

[4]   On February 26, 2014, after Johnson had completed twelve months of home

      detention, but while still on probation, the State filed a notice alleging that

      Johnson had violated his probation. The notice was filed under both cause

      numbers. The notice alleged that Johnson had violated probation by possessing

      and dealing in marijuana.


[5]   Specifically, on February 19, 2014, Anderson Police Department Officers Chad

      Boynton and Chris Frazier, who had received reports of possible drug activity

      occurring at a duplex on Main Street in Anderson, Indiana, were conducting

      surveillance of the duplex when they decided to approach the duplex and knock

      on the door. Officer Boynton heard a man’s voice inside the residence, and


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      Johnson answered the door. The officer immediately smelled the odor of burnt

      marijuana at the open door of the residence.

[6]   Johnson spoke to the officer and stated that he did not live at the residence but

      that it belonged to Brittany Brooks,1 who was at school. Officer Boynton asked

      to come inside the residence, and Johnson refused, but stepped outside to speak

      with the officers. Johnson was then handcuffed and read his Miranda rights.

      The officer explained that he wanted to investigate the odor of marijuana, and

      Johnson replied that he had not smoked marijuana, but that he had been

      smoking spice. Based on Johnson’s appearance, i.e. red eyes and sluggishness,

      Officer Boynton believed that Johnson had smoked marijuana.

[7]   Officer Boynton continued to hear movement inside the duplex but could not

      pinpoint whether the movement was coming from Brooks’s side of the duplex

      or the adjoining residence. Johnson stated that no other person was in Brooks’s

      duplex. Officer Boynton decided to enter Brooks’s residence to make sure no

      other person was present who might harm the officers or destroy evidence.

      Officer Boynton did not find anyone else in the duplex but did observe what

      appeared to be marijuana in plain view on the living room coffee table.

[8]   Officer Boynton exited the residence after approximately forty seconds and

      contacted Brooks to explain the situation. Brooks stated that she would be




      1
          The record has some indication that Brooks was Johnson’s cousin. Tr. p. 38; Appellant’s App. p. 64.



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       home shortly. However, she did not return home, and after waiting

       approximately forty minutes, the officers obtained a search warrant.

[9]    When the officers executed the search warrant, Officer Boynton discovered

       marijuana stored in plastic bags in the kitchen. Officer Frazier found a

       backpack, which Johnson admitted was his. The backpack contained a large

       amount of marijuana stored in plastic bags. Johnson later admitted that the

       marijuana was his and he had been dealing in marijuana. Tr. p. 41. The officers

       field tested the plant material on the living room table, and it tested positive for

       marijuana. A partially smoked, hand-rolled marijuana cigarette was also found

       on the table.

[10]   During the probation revocation proceedings, Johnson moved to suppress the

       evidence seized during the initial, warrantless search of Brooks’s residence. In

       response, the State argued that Johnson lacked standing to challenge the

       warrantless search. Johnson did not live at Brooks’s residence but was a

       frequent visitor. In the alternative, the State argued that exigent circumstances

       supported the officers’ warrantless entry into Brooks’s residence.


[11]   The trial court denied Johnson’s motion to suppress after concluding that he

       lacked standing to challenge the search. The court also concluded that Officer

       Boynton’s warrantless search of Brooks’s duplex was supported by the existence

       of exigent circumstances, i.e. the concern that evidence could be destroyed if

       another person was in the residence. Finally, the court determined that even if

       the evidence seized during the warrantless search was suppressed, “there was


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       still adequate information to support the search warrant.” Appellant’s App. p.

       77.

[12]   The trial court then revoked Johnson’s probation after concluding that the State

       proved by a preponderance of the evidence that Johnson possessed and

       committed dealing in marijuana. Johnson was ordered to serve twelve months

       in the Department of Correction, with credit for 81 days of time served, under

       Cause Number 48C04-0911-FC-667. Under Cause Number 48C04-1201-FD-

       164, Johnson was ordered to serve his previously suspended twenty-four month

       sentence in the Department of Correction. Johnson now appeals.2


                                            Discussion and Decision

[13]   Johnson and the State argue whether Johnson had a reasonable expectation of

       privacy in Brooks’s duplex and/or standing to challenge the search of his

       backpack where the marijuana was packaged and stored. Johnson also argues

       that Officer Boynton’s warrantless entry and search of Brooks’s duplex violated

       both the Fourth Amendment of the United States Constitution and Article One,

       Section Eleven of the Indiana Constitution.

[14]   The State also argues that even if Johnson had a reasonable expectation of

       privacy and the warrantless search ran afoul of those constitutional provisions,

       any error was harmless because probable cause still existed to support the


       2
        We held oral argument for this appeal on April 14, 2015, at Manchester University. We would like to
       extend our gratitude to the staff, faculty, and students for their hospitality. We also thank counsel for their
       written and oral advocacy.



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       search warrant if the information obtained during the warrantless search is

       redacted. Johnson’s backpack containing marijuana was discovered and

       searched during execution of the search warrant. We find this argument to be

       dispositive, and therefore, we will not address the other issues raised in the

       parties’ briefs.


[15]   Both the Fourth Amendment to the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution require probable cause for the issuance

       of a search warrant. Rader v. State, 932 N.E.2d 755, 758 (Ind. Ct. App. 2010),

       trans. denied. “Probable cause” is a fluid concept incapable of precise definition

       and must be decided based on the facts of each case. Id. In deciding whether to

       issue a search warrant, the task of the issuing magistrate is simply to make a

       practical, common-sense decision whether, given all the circumstances set forth

       in the affidavit, a fair probability exists that evidence of a crime will be found in

       a particular place. Id. at 758-59; see also Ind. Code § 35-33-5-2(a); Walker v.

       State, 829 N.E.2d 591, 594 (Ind. Ct. App. 2005) (stating that “[p]robable cause

       is established when a sufficient basis of fact exists to permit a reasonably

       prudent person to believe that a search of those premises will uncover evidence

       of a crime”), trans. denied.


[16]   “The duty of a reviewing court is to determine whether the issuing magistrate

       had a substantial basis for concluding that probable cause existed.”3 Rader, 932


       3
         The reviewing court includes both the trial court ruling on the motion to suppress and the appellate court
       reviewing the trial court’s decision. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006).



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       N.E.2d at 759. “While we review the question de novo, we give significant

       deference to the issuing magistrate’s determination and focus on whether

       reasonable inferences drawn from the totality of the evidence support the

       finding of probable cause.” Id. In determining whether an affidavit provided

       probable cause for the issuance of a search warrant, doubtful cases should be

       resolved in favor of upholding the warrant. State v. Shipman, 987 N.E.2d 1122,

       1126 (Ind. Ct. App. 2013).


[17]   In this case, the question is whether Officer Boynton had probable cause to

       make his initial entry into Brooks’s duplex before he observed the marijuana on

       the living room table in plain view. If he did not, then the evidence must be

       suppressed under the “fruit of the poisonous tree” doctrine, which bars the

       admissibility in a criminal proceeding of evidence obtained in the course of

       unlawful searches and seizures. See Hanna v. State, 726 N.E.2d 384, 389 (Ind.

       Ct. App. 2000). “The doctrine operates to bar not only evidence directly

       obtained, but also evidence derivatively gained as a result of information

       learned or leads obtained during an unlawful search or seizure.” Id.


[18]   The probable cause affidavit contains the following facts known to Officer

       Boynton before he performed the warrantless search:

               1. The officers received information that illegal drug activity was
               taking place at Brooks’s address.
               2. Prior to knocking on the door of the duplex, the officers
               observed a silver Chevy Impala parked in the driveway. “Based
               upon periodic surveillance of the duplex, over the course of the


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               last 4-6 weeks, [Officer Boynton] knew this vehicle to come and
               go from the residence on a near daily basis.”
               3. When Johnson opened the door, the officer “immediately
               detected a very strong odor of burnt marijuana coming from
               within the residence.”
               4. Johnson refused to allow the officers inside the residence and
               told them that the residence belonged to his cousin, Brooks.

       Appellant’s App. p. 64.


[19]   Officer Boyton, who has made hundreds of arrests for possession of marijuana,

       testified that the odor of burnt marijuana is “easily identifiable.” Tr. p. 30. Also,

       when Johnson answered the door, the officers believed that he was under the

       influence of marijuana because he was sluggish, and his eyes were red and

       droopy. Tr. p. 31. Johnson told the officers that no marijuana was in the house

       but that he had been smoking spice. Tr. p. 32. Officer Boyton testified that the

       odors of burning spice and burnt marijuana do not smell “any where near the

       same,” and he did not believe Johnson’s claim that he had been smoking spice.

       Tr. pp. 32-33.


[20]   From these facts, Officers Boynton and Frazier had sufficient information that

       would lead a reasonable person to conclude that Johnson had recently smoked

       marijuana and had committed possession of marijuana, and therefore, a fair

       probability existed that evidence of that crime would be found in Brooks’s

       residence. We agree with the trial court that probable cause existed to support

       the search warrant issued for Brooks’s residence even if Officer Boyton’s




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       observation of the marijuana located in plain view on the living room table had

       not been included in the probable cause affidavit.

[21]   For all of these reasons, we conclude that the trial court acted within its

       discretion when it admitted evidence that the officers discovered a large

       quantity of marijuana in Johnson’s backpack when they executed the search

       warrant. Therefore, we affirm the trial court’s order denying Johnson’s motion

       to suppress and finding that he violated his probation.


[22]   Affirmed.

       Barnes, J., and Crone, J., concur.




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