MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Aug 29 2018, 9:24 am
regarded as precedent or cited before any
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
Dana Childress-Jones                                     Curtis T. Hill, Jr.
The Law Office of Dana Childress-                        Attorney General of Indiana
Jones, LLC
                                                         Justin F. Roebel
Indianapolis, Indiana                                    Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Barnes,                                             August 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1612-CR-2940
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G20-1502-F2-6443



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018          Page 1 of 16
                               Case Summary and Issues
[1]   Following a search of his home, Mark Barnes was charged with dealing in

      cocaine, a Level 2 felony, and possession of cocaine, a Level 3 felony, among

      other offenses. Barnes brings this interlocutory appeal of the trial court’s denial

      of his motions to suppress, raising two issues for our review which we restate

      as: 1) whether the trial court impermissibly shifted the burden onto Barnes to

      prove that officers entered and searched his home without consent; and 2)

      whether the arrest warrant which occasioned the officers’ entry into Barnes’

      home was invalid because it was not signed by a judicial officer. Concluding

      that the trial court did not inappropriately shift the burden of proof to Barnes to

      prove lack of consent and that the officers entered Barnes’ home pursuant to a

      valid arrest warrant, we affirm the trial court’s denial of Barnes’ motions to

      suppress.



                            Facts and Procedural History
[2]   On February 18, 2015, Officer Erik Forestal of the Indianapolis Metropolitan

      Police Department’s Violent Crimes Unit attempted to serve an arrest warrant

      for robbery on Jeffrey Ramsey at the address listed on the warrant, 3918

      Graceland Avenue. Officer Forestal knocked on the door, and Zelma

      Hutchins, the home’s owner, answered. Officer Forestal explained to Zelma

      that he was seeking Ramsey on the outstanding robbery warrant and asked if he

      was there. Zelma replied that Ramsey, who she confirmed was her great-

      nephew, did not live there. She also told Officer Forestal that Ramsey was not

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 2 of 16
      in the home at that time. In Officer Forestal’s experience, people were often

      untruthful when asked about the whereabouts of someone he was seeking to

      serve with a warrant, so he asked Zelma if they “could come in to verify that

      [Ramsey] was not inside the residence.” Franks Hearing Transcript of

      Proceedings at 9. Zelma replied, “Yes, [they] could.” Id. Zelma then opened

      the door for the officers and allowed them to pass.


[3]   Officer Forestal asked Zelma if there was anyone else in the home, and Zelma

      informed him that her daughter, Philamenia, and Barnes, her grandson, were

      upstairs. Officer Forestal asked Zelma to have the other occupants of the home

      come downstairs. Zelma called for Philamenia and Barnes, who both

      eventually came downstairs. Two officers assisting Officer Forestal went

      upstairs to look for Ramsey. Zelma’s niece, Niko1, joined the group of the

      home’s occupants who were waiting in the living room for the officers to

      complete their search. As the officers searched for Ramsey upstairs, Barnes told

      Zelma that the officers did not have a warrant and that she should make them

      exit the upstairs of the home. Barnes did not address his remarks to the officers,

      and Zelma did not respond to Barnes’ remarks. Zelma did not tell the officers

      that they had to leave.


[4]   While searching for Ramsey upstairs, one of the assisting officers looked behind

      a table with a television on it. The table and television were placed diagonally




      1
          This name is also spelled “Neiko” in the transcripts.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 3 of 16
      against a corner, creating a void where the officer believed someone could hide.

      The officer saw what he suspected was a bag of cocaine 2 on the floor behind the

      table. The officer informed Officer Forestal that he had seen suspected cocaine

      upstairs while searching for Ramsey. Officer Forestal advised the occupants of

      the home that they would seek a search warrant for the home. Barnes became

      agitated and stated, “This is bullsh*t!” Id. at 14. Barnes would not sit down

      when directed by officers. He refused to comply when officers attempted to

      handcuff him, and one of the officers deployed his taser device on Barnes.


[5]   Officer Forestal submitted a sworn affidavit in support of his application for a

      search warrant for the home in which he averred as follows:


              Forestal explained [to Zelma] Jeffrey Ramsey had an outstanding
              warrant and the address of 3918 Graceland is listed on the arrest
              warrant and officers needed to make sure Ramsey was not inside.
              [Zelma] agreed to let officers come in to ensure Ramsey was not
              in the residence.


      State’s Exhibit #1 at 5. The search warrant was granted, and the suspected

      cocaine was recovered from the home.


[6]   On February 18, 2015, the State charged Barnes with a number of offenses,

      including dealing in cocaine and possession of cocaine. On March 12, 2015,

      Barnes filed his first motion to suppress, arguing that Zelma had not given




      2
        The substance was later determined to be heroin. The trial court granted the State’s motion to amend the
      charging information on October 12, 2016.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018          Page 4 of 16
      consent for officers to enter her home to search. In its response, the State

      argued that Barnes was seeking to suppress evidence seized pursuant to a search

      warrant and that his suppression motion challenged the veracity of Officer

      Forestal’s claim of consent as recited in his affidavit supporting the search

      warrant request. The State sought summary dismissal of Barnes’ motion,

      arguing that pursuant to Franks v. Delaware, 438 U.S. 154 (1978), such

      challenges placed a preliminary evidentiary burden on the defendant to show

      that the officer made false statements to procure the search warrant, a burden

      which Barnes had not met in his written motion. In his written opposition to

      the State’s response Barnes argued:


              In addition, [Zelma] disputes that she agreed to let Forestal
              inside to ensure Ramsey was not inside. Therefore, to the extent
              that the State is asking Barnes to assert the information contained
              in the Affidavit is false, Barnes, [sic] unequivocally asserts that
              the information contained in the Affidavit is false. As a result,
              and pursuant to the State’s request, Barnes is requesting a Franks
              [sic] Hearing in addition to a suppressions [sic] hearing.


      Appellant’s Appendix, Volume II at 43.


[7]   At the May 19, 2015, hearing on Barnes’ motion, the State presented its

      evidence first, which consisted of certified copies of the search warrant and

      Officer Forestal’s supporting affidavit. State’s Ex. #1. Barnes objected to the

      admission of the exhibit on the basis that it was invalid to support the

      challenged search, but he did not object to the competency of the affidavit itself

      as substantive evidence. The trial court admitted the exhibit over Barnes’


      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 5 of 16
      objection. Barnes’ counsel argued that Officer Forestal failed to recite facts in

      his affidavit establishing that Zelma had provided consent to enter and search

      and that “there’s nowhere in this affidavit where it says a consent is given in

      this case.” Motion to Suppress Transcript, Volume 2 at 12.


[8]   Zelma testified at the suppression hearing that Officer Forestal did not request

      permission to enter her home and that she did not give him permission to do so.

      Philamenia and Barnes also testified that they did not give officers permission

      to enter the home or to search. The trial court took Barnes’ motion under

      advisement and set the matter for a Franks hearing on the issue of whether

      Officer Forestal supplied false and misleading information regarding Zelma’s

      consent to the judge who issued the search warrant.


[9]   At the Franks hearing held on June 22, 2015, Officer Forestal established that he

      had asked Zelma if he could enter her home to confirm that Ramsey was not

      there and that she had assented. Two assisting officers who were present that

      day also confirmed that Officer Forestal had sought and obtained Zelma’s

      permission to enter her home to look for Ramsey. Barnes declined to present

      additional evidence, as the trial court granted his counsel’s request to take

      judicial notice of the prior hearing and incorporated all the testimony and

      evidence presented by Barnes at the May 19 suppression hearing into the Franks

      hearing. The trial court stated its intention to review all of the evidence from

      both hearings before issuing its rulings, to which Barnes’ counsel responded,

      “Okay.” Franks Hrg. Tr. of Proceed. at 55-56. At the conclusion of the Franks

      hearing, the trial court took all matters under advisement.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 6 of 16
[10]   On July 16, 2015, the trial court issued an order denying Barnes’ motion to

       suppress, finding that the officers had a valid arrest warrant, Zelma allowed the

       officers in her residence to search for Ramsey, and that the suspected cocaine

       was observed in plain view while officers searched for Ramsey. Appellant’s

       App., Vol. II at 56-57. The trial court also found the “law enforcement officers

       credible and therefore the statements made in the Affidavit for Probable Cause

       for the search warrant were not false.” Id. at 57.


[11]   Barnes sought to have the trial court’s order denying his motion to suppress

       certified for interlocutory appeal. The trial court denied this first request for

       certification on August 6, 2015. On June 15, 2016, Barnes filed a second

       motion to suppress and to certify his suppression issues for interlocutory appeal.

       A hearing was held on June 28, 2016, after which the trial court denied both

       motions. In response to a specific discovery request, the State supplied Barnes

       with a copy of the Ramsey arrest warrant. The arrest warrant was not signed

       by a judicial officer. On October 11, 2016, Barnes filed a combined renewed

       motion to suppress and motion to dismiss in which he reasserted his previous

       grounds for suppression and additionally challenged the validity of the arrest

       warrant on the basis that it was invalid having not been signed by a judicial

       officer. A hearing was held on Barnes’ motions on October 12, 2016, at which

       the trial court admitted into evidence certified copies of the Criminal Probable

       Cause Warrant Sheet and the robbery arrest warrant pertaining to Ramsey.

       Second Supplemental Exhibit Volume, Volume I at 3-4. The Probable Cause

       Warrant Sheet was signed by a judicial officer and indicated that probable cause


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 7 of 16
       was found to arrest Ramsey. Id. at 3. The Warrant Sheet bore the hearing date

       of January 14, 2015, and was issued under Cause Number 49G02-1501-F3-

       001370, the same case number shown on the arrest warrant. Id. at 3-4. The

       trial court denied Barnes’ suppression and dismissal motion on October 18,

       2016. On November 14, 2016, Barnes filed a third motion seeking to certify the

       trial court’s October 18 order for interlocutory appeal which the trial court

       granted. We accepted jurisdiction over this appeal on January 27, 2017.



                                   Discussion and Decision
                                I. Consent to Enter and Search
[12]   Barnes argues that the trial court erred in denying his motion to suppress

       because the trial court impermissibly placed a burden on him to prove lack of

       consent. Specifically, Barnes contends that, because the State failed to present

       live officer testimony at the hearing on his first motion to suppress to prove that

       Zelma3 consented to the officers’ entry and the search of her home, the trial

       court should have ruled in his favor without taking further evidence or

       considering other issues. Barnes argues that “[r]ather than grant [Barnes’]

       Motion to Suppress as the result of the State’s failure to meet its burden, the




       3
         Although three other people in addition to Zelma were present in the home when officers entered, neither
       the State nor Barnes suggest that anyone other than Zelma provided consent to enter and search.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018         Page 8 of 16
       trial court compounded its error by conducting a Franks [sic] hearing.”

       Appellant’s Brief at 14.


                                            A. Standard of Review
[13]   It is well-settled that we review a trial court’s denial of a motion to suppress

       under a standard similar to other sufficiency issues, namely without reweighing

       the evidence and by determining if there is substantial evidence of probative

       value that supports the trial court’s decision. McIlquham v. State, 10 N.E.3d 506,

       511 (Ind. 2014). We consider the evidence favorable to the trial court’s ruling

       as well as substantial uncontradicted evidence to the contrary to decide whether

       the evidence is sufficient to support the ruling. Id. The ultimate ruling on the

       constitutionality of a search is a legal conclusion that we review de novo. Id.


                            B. The Suppression and Franks Hearings
[14]   The suppression litigation in this matter began when Barnes filed an initial

       motion in which he argued that the officers’ entry and search of Zelma’s home

       violated his Fourth Amendment4 rights because Zelma had not provided

       consent. The Fourth Amendment protects persons from unreasonable search

       and seizure. U.S. Const. amend. IV. A warrantless search or seizure inside a




       4
         Barnes also claims the challenged evidence should have been suppressed because the State failed to show
       that the search was reasonable under Article 1, Section 11, of the Indiana Constitution. Appellant’s Br. at 16.
       Barnes does not develop this argument with relevant case law or citations to the record, and, therefore, he has
       waived the issue. See Crabtree v. State, 762 N.E.2d 217, 220 (Ind. Ct. App. 2002) (holding that failure to
       develop a separate state constitutional argument results in waiver of the claim).



       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018            Page 9 of 16
       home is presumptively unreasonable unless it is subject to one of a few

       established and well-delineated exceptions. Bradley v. State, 54 N.E.3d 996, 999

       (Ind. 2016). A voluntary and knowing consent to search is one such well-

       recognized exception to the warrant requirement. Id. The State has the burden

       of proving that this exception to the warrant requirement existed at the time of

       the search. Id. Therefore, we agree with Barnes that the State had the burden

       of proof to establish Zelma’s consent in order to prevail on Barnes’ suppression

       claim.


[15]   In response to Barnes’ initial suppression motion, the State filed a dismissal

       motion based on Franks v. Delaware. In that case the Supreme Court held that


                where the defendant makes a substantial preliminary showing
                that a false statement knowingly and intentionally, or with
                reckless disregard for the truth, was included by the affiant in the
                warrant affidavit, and [was] necessary to the finding of probable
                cause, the Fourth Amendment requires that a hearing be held at
                the defendant’s request.


       438 U.S. at 155-56. The State argued that Barnes’ suppression motion

       challenged Officer Forestal’s assertion that Zelma had provided consent as

       averred in the affidavit supporting his request for a search warrant. We agree

       with the State that, pursuant to Franks, Barnes had a preliminary burden of

       proof to show that Officer Forestal’s averments were false and were knowingly,

       intentionally, or recklessly included in the warrant affidavit. Barnes’ response

       to the State was to confirm that he was challenging the affidavit and to request a

       Franks hearing. Appellant’s App., Vol. II at 43.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 10 of 16
[16]   Thus, by the time of the hearing on Barnes’ suppression motion, both his

       suppression claim and the Franks issue were before the trial court. At the

       suppression hearing, the trial court took the State’s evidence first, which

       consisted of a certified copy of Officer Forestal’s search warrant affidavit which

       was admitted as substantive evidence. Barnes then presented his evidence

       which consisted of the testimony of Zelma, Philamenia, and Barnes. At the

       close of the hearing, the trial court took Barnes’ suppression claim under

       advisement. The trial court also determined that Barnes had made the requisite

       preliminary Franks showing and that an additional hearing was required on the

       Franks issue. The trial court later held a Franks hearing at which three officers

       presented their testimony, and the trial court incorporated Barnes’ evidence

       from the prior suppression hearing.


[17]   The trial court conducted two hearings in which evidence was presented that

       was relevant to both Barnes’ suppression claim and the Franks issue, after which

       it issued its order addressing both. Barnes’ argument that the trial court was

       required to rule in his favor after the initial suppression hearing because the

       State did not present any live officer testimony to carry its burden of proof on

       his suppression claim is unpersuasive for at least two reasons. The State

       presented substantive evidence at the suppression hearing in the form of a

       certified copy of the Officer Forestal search warrant affidavit. State’s Ex. #1.

       Barnes does not cite to, and we are unaware of, any authority mandating that

       the State present live witness testimony at a suppression hearing. In addition,

       the trial court was not required to rule on Barnes’ suppression claim at the close


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 11 of 16
       of the suppression hearing. Barnes does not direct us to, and we are unaware

       of, any authority for his apparent proposition that a trial court may not

       entertain multiple issues at the same hearing or that it may not hold more than

       one hearing on an issue. We find no evidence in the record that the trial court

       directed Barnes to prove lack of consent or that the trial court misunderstood

       the parties’ respective evidentiary burdens.


[18]   Furthermore, at Barnes’ request, at the Franks hearing the trial court took

       judicial notice of the evidence presented at the suppression hearing, which was

       proper. See Horton v. State, 51 N.E.3d 1154, 1160-61 (Ind. 2016) (noting that

       Indiana Evidence Rule 201(b)(5) now allows courts to take judicial notice of

       “records of a court of this state,” including its own records). When the trial

       court stated its intention to review all the evidence from both hearings before

       issuing its rulings, Barnes’ counsel did not object. We conclude that the trial

       court properly had the combined evidence of both hearings upon which to base

       its order denying Barnes’ suppression motion and that it did not impermissibly

       shift the State’s evidentiary burden onto Barnes.


                                   C. Sufficiency of the Evidence
[19]   In a related argument, Barnes also contends there was no evidence supporting

       the denial of his motion to suppress. Although this argument is not well

       developed, we briefly address the evidence supporting the trial court’s order

       denying Barnes’ motion to suppress as it related to Zelma’s consent. Barnes’




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 12 of 16
       principle attack5 on the sufficiency of the evidence is that Zelma simply did not

       say the things attributed to her by Officer Forestal, and so our review of the

       evidence will be through that lens.


[20]   Here, the trial court concluded that Zelma “answered the front door for law

       enforcement officers and they were allowed in the residence to search for

       Jeffrey Ramsey.” Appellant’s App., Vol. II at 56. The evidence supporting the

       trial court’s conclusion was that Officer Forestal explained to Zelma when she

       answered the door that he was seeking Ramsey on an outstanding robbery

       warrant and asked if he was there. Zelma replied that Ramsey did not live there

       and that he was not there at that time. Officer Forestal wanted to confirm that

       Ramsey was not in the residence, so he asked Zelma if they could come in to

       verify that Ramsey was not inside. Zelma agreed, opened the door for the

       officers, and allowed them to pass.


[21]   Once inside, Officer Forestal asked Zelma to have anyone else in the home

       come downstairs. Zelma called for Philamenia and Barnes, who both

       eventually came downstairs. Two officers assisting Officer Forestal went

       upstairs to look for Ramsey. Zelma did not tell the officers they could not go

       upstairs. Zelma never told the officers that they had to leave. Thus, Zelma




       5
         Barnes raises two additional one-sentence arguments, citing to Steagald v. United States, 451 U.S. 204 (1981)
       and Bumper v. North Carolina, 391 U.S. 543 (1968). Appellant’s Br. at 16. Barnes fails to develop these
       arguments with cogent reasoning or citations to the record, and, thus we do not address them. See Ind.
       Appellate Rule 46(A)(8)(a); see also Smith v. State, 822 N.E.2d 193, 203-04 (Ind. Ct. App. 2005) (holding that
       party waives any issue raised on appeal where the party fails to develop a cogent argument or provide
       adequate citation to authority and portions of the record), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018            Page 13 of 16
       expressly assented to the officers’ entry into her home to search for Ramsey, she

       never limited the scope of that search, and she never told officers that they must

       stop searching. Zelma did call the other occupants of the home to come

       downstairs which was further evidence that she acquiesced to the officers’

       search of the upstairs of her home.


[22]   In support of his argument that Zelma did not give consent, Barnes directs us to

       evidence that does not support the trial court’s suppression order. This

       argument is unpersuasive given our standard of review. McIlquham, 10 N.E.3d

       at 511. The fact that it may have been uncontested that officers did not

       expressly ask to search upstairs and Zelma did not provide express consent to

       do so does not change the result here, as it was not necessary for Zelma to

       provide express consent for us to uphold the trial court’s determination. See

       Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008) (consent search upheld

       absent express consent to search where Rush allowed officers to enter home,

       never limited the scope of their search, and acquiesced in the search by

       accompanying officers through home). We conclude that the trial court’s

       denial of Barnes’ motion to suppress was supported by substantial probative

       evidence.


                                     II. The Arrest Warrant
[23]   Barnes also contends that the trial court’s suppression order must be reversed

       because the officers’ entry was made pursuant to an invalid arrest warrant.

       Barnes’ specific allegation is that the arrest warrant was invalid because it was


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 14 of 16
       not signed by a judicial officer and, thus, should be deemed “nonexistent.”

       Appellant’s Br. at 17.


[24]   However, in Smith v. State, 562 N.E.2d 428, 429-30 (Ind. Ct. App. 1990), we

       held that the signature of the judge issuing a search warrant is a ministerial act

       the lack of which is not fatal if the judge found the required probable cause to

       issue the warrant. Although Smith dealt with the validity of an unsigned search

       warrant, as opposed to an unsigned arrest warrant, we see no reason why the

       precedent of Smith would not apply equally to an arrest warrant, as both are

       issued after a judicial officer’s finding of probable cause. Compare Ind. Code §

       35-33-5-1(a) (search warrant requirements) with Ind. Code § 35-33-2-1(c) (arrest

       warrant requirements).


[25]   Here, it is undisputed that the Ramsey arrest warrant was not signed by the

       issuing judicial officer. Second Supp. Ex. Vol., Vol. I at 4. However, the

       Warrant Sheet for the arrest warrant was admitted into evidence which showed

       that the judicial officer found that probable cause existed to arrest Ramsey for

       robbery. Id. at 3. This probable cause determination was signed by the issuing

       judicial officer, and the cause number on the Warrant Sheet matched that

       provided on the arrest warrant. Id. at 3-4. Because the evidence showed that

       the judicial officer who issued the arrest warrant had found probable cause for

       the arrest, the fact that the judge did not sign the arrest warrant itself did not

       render it invalid. Smith, 562 N.E.2d at 429.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 15 of 16
[26]   Moreover, Timmons v. State, 723 N.E.2d 916 (Ind. Ct. App. 2000), trans. denied,

       relied upon by Barnes for his claim of error, Appellant’s Br. at 17, is factually

       distinguishable. The telephonic arrest warrant in that case was issued in near

       total derogation of the statutory procedures and was not simply lacking a

       signature by the issuing judicial officer. Timmons, 723 N.E.2d at 920. Here, the

       officers’ initial entry was made pursuant to a valid arrest warrant. Thus, we

       uphold the trial court’s denial of Barnes’ motions to suppress.



                                               Conclusion
[27]   Concluding that the trial court did not shift the burden of proof to Barnes to

       demonstrate lack of consent and that the officers’ initial entry was made

       pursuant to a valid arrest warrant, we affirm.


[28]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2940 | August 29, 2018   Page 16 of 16
