                                                                                     FILED
                                                                                Dec 21 2018, 9:25 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David M. Payne                                            Curtis T. Hill, Jr.
      Ryan & Payne                                              Attorney General of Indiana
      Marion, Indiana
                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
             COURT OF APPEALS OF INDIANA

      Shakur Johnson,                                           December 21, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                27A02-1712-CR-2958
                 v.                                             Appeal from the Grant Superior
                                                                Court
      State of Indiana,                                         The Honorable Jeffrey D. Todd,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                27D01-1512-MR-1



      Friedlander, Senior Judge.

                                                                                     1
[1]   Shakur Johnson appeals his conviction of murder, a felony. We affirm.




      1
          Ind. Code § 35-42-1-1 (2014).


      Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018                       Page 1 of 15
[2]   Johnson presents three issues for our review, which we consolidate and restate

      as two:


              I. Whether the trial court erred by admitting certain evidence
              seized pursuant to a search warrant.


              II. Whether the trial court erred by admitting certain statements
              made by Johnson.


[3]   On December 29, 2015, Johnson, age 17, was charged with the murder of Mark

      Cotton. Information as to Johnson’s location was acquired from his cell phone

      carrier and led police to obtain a search warrant for the apartment of Kylee

      Weaver, Johnson’s girlfriend. During the search, police located Johnson and

      seized his cell phone and bullet cartridges consistent with those found at the

      scene. Johnson filed a motion to suppress this evidence, which the trial court

      denied. At trial, the evidence was admitted over Johnson’s objection.


[4]   After Johnson was taken into custody, he asked to speak to his probation

      officer. His probation officer met with him at the juvenile detention center,

      and, during their conversation, Johnson made incriminating statements. These

      statements were included in his pretrial motion to suppress. The court denied

      Johnson’s motion as to the statements, and they were admitted at trial over his

      objection. A jury found Johnson guilty as charged, and he was sentenced to

      fifty-five years, fifty of which is to be executed. He now appeals.


[5]   Both of Johnson’s arguments challenge the admission of evidence. The

      admission of evidence at trial is a matter left to the discretion of the trial court.

      Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 2 of 15
      Nicholson v. State, 963 N.E.2d 1096 (Ind. 2012). We review these

      determinations 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.


[6]   Johnson first challenges the admission of the evidence seized from Weaver’s

      apartment. The gist of his argument is that the officers’ acquisition of his

      location by using the cellular tracking information provided by his wireless

      carrier was improper because no exigent circumstances existed. Therefore,

      insofar as the cellular tracking information served as the basis for the warrant to

      search Weaver’s apartment, the search violated his federal and state

      constitutional rights, and any evidence seized in the search should not have

      been admitted at trial.


[7]   The Fourth Amendment to the United States Constitution protects against

      unreasonable searches and seizures by prohibiting, generally, searches and

      seizures conducted without a warrant supported by probable cause. U.S.

      CONST. amend. IV; Clark v. State, 994 N.E.2d 252 (Ind. 2013). As a deterrent

      mechanism, evidence obtained in violation of this rule is generally not

      admissible against a defendant absent a recognized exception. Clark, 994

      N.E.2d 252. Likewise, article I, section 11 of the Indiana Constitution protects

      citizens from unreasonable searches and seizures. Despite the similarity of the

      two provisions, Indiana courts interpret and apply article I, section 11

      independently from Fourth Amendment analysis. Mitchell v. State, 745 N.E.2d

      775 (Ind. 2001).

      Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 3 of 15
[8]   The basis for the search warrant of Weaver’s apartment was the cellular

      tracking information police obtained from the wireless carrier. Police obtained

      this information pursuant to Indiana Code section 35-33-5-12(a)(2) (2014),

      which provides:


              (a) A law enforcement officer or law enforcement agency may
              not use a real time tracking instrument that is capable of
              obtaining geolocation information concerning a cellular device
              connected to a cellular network unless:


                       (1) the law enforcement officer or law enforcement agency
                       has obtained an order issued by a court based upon a
                       finding of probable cause to use the tracking instrument; or


                       (2) exigent circumstances exist that necessitate using the
                       tracking instrument without first obtaining a court order.


      Thus, for the acquisition of cellular location information, our Legislature has

      determined that the existence of exigent circumstances creates an exception to

      the general requirement of a court order.


[9]   Although the Legislature did not define the term “exigent circumstances” with

      regard to this particular statute, it has been considered by our courts in the

      search warrant realm, and such examples can be instructive. Exigent

      circumstances that have been found sufficient to overcome a warrantless entry

      have included: 1) a suspect is fleeing or likely to take flight in order to avoid

      arrest; 2) incriminating evidence is in jeopardy of being destroyed or removed

      unless an immediate arrest is made; and 3) hot pursuit or movable vehicles are


      Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 4 of 15
       involved. Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991). Our Supreme Court

       has also recognized an “emergency circumstances” exception to the warrant

       requirement for instances where a violent crime has occurred and entry by

       police can be justified as a means to prevent further injury or to aid those who

       have been injured. Sapen v. State, 869 N.E.2d 1273, 1277 (Ind. Ct. App. 2007),

       trans. denied. Further, “[a]mong the exigencies that may properly excuse the

       warrant requirement are threats to the lives and safety of officers and others and

       the imminent destruction of evidence.” Holder v. State, 847 N.E.2d 930, 937

       (Ind. 2006).


[10]   With these concepts in mind, we turn to the facts of this case. On November

       12, 2015, Cotton’s body was found in the backyard of his residence. A cell

       phone found on Cotton’s body showed an outgoing telephone call to 765-733-

       4079 while Cotton was believed to still be alive. The phone also contained text

       communication from that number on the same evening. The communication

       indicated that the individual using the 765-733-4079 number had texted to

       Cotton, “Got some smoke, bro make it just a $10 bag bro.” Ex. Vol. 6, p. 11.

       Cotton had responded, “Got you.” Id. Through an information database,

       officers learned that this number was registered to Cordelia Jackson, who the

       police knew from a previous investigation is Johnson’s mother. A law

       enforcement information database also indicated that the number is associated

       with Johnson. Additionally, in the same area as Cotton’s body, a necklace was

       found which a Facebook search revealed was the same or similar necklace to

       one worn by Johnson.


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 5 of 15
[11]   Based upon this information, the police submitted a “Wireless 9-1-1 Emergency

       Information Request Form” to Jackson’s/Johnson’s wireless carrier. Id. at 27.

       On the form, the police requested “GPS/pings” and indicated that the nature of

       the emergency situation was a homicide and that there was an “immediate

       threat to [the] community.” Id. Following a telephonic probable cause hearing,

       the police also obtained a search warrant for Johnson’s person and his mother’s

       address, where he was thought to be living. However, the cellular location

       tracking returned a “ping” at another address that the police knew to be that of

       Johnson’s girlfriend, Weaver. Due to this new information, the police engaged

       in another telephonic probable cause hearing to amend the original search

       warrant by adding Weaver’s apartment as a location to be searched. During the

       subsequent execution of the search warrant at Weaver’s apartment, police

       seized Johnson’s cell phone and bullet cartridges that were consistent with those

       found at the scene.


[12]   At the suppression hearing, the State presented the testimony of Detectives

       Caudell and Zigler. Detective Zigler testified that in a homicide case there is a

       threat to the community. He explained, “If someone confronts an armed

       individual that’s recently committed a homicide, I’d be concerned for the safety

       of that person and the community.” Tr. Vol. 2, p. 56. Similarly, at trial

       Detective Zigler testified that the exigent circumstances in this case consisted of

       the immediate danger of death or injury to another person, the risk of damage

       to property, and the safety of the community, especially if the perpetrator was

       confronted. Tr. Vol. 3, p. 67.


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 6 of 15
[13]   The police were investigating a murder where the small amount of information

       available at the time linked Johnson to the victim. We find that the

       circumstances in this case—a threat to the lives and safety of others and

       possible destruction of evidence—were sufficiently exigent circumstances under

       Indiana Code section 35-33-5-12(a)(2) to justify obtaining cellular location

       information without a court order. Johnson has not shown a violation of his

       federal or state constitutional rights on this basis; accordingly, the trial court’s
                                                                                                                2
       admission of the evidence seized at Weaver’s apartment was not in error.




       2
         Johnson also claims error with the fact that, in the subsequent application for a court order pursuant to
       Indiana Code section 35-33-5-12(b), the police included two pieces of information that were obtained after
       the cellular tracking information was sought and acted upon. While this may be true, it does not affect our
       analysis because we evaluated only the evidence available at the time the request for location information
       was submitted. See McGrath v. State, 95 N.E.3d 522 (Ind. 2018) (stating that rather than consider post hoc
       justifications for search, appellate courts evaluate only evidence presented to magistrate issuing warrant).
       In addition, Johnson filed a Notice of Additional Authority, citing Carpenter v. United States, 138 S. Ct. 2206,
       201 L. Ed. 2d 507 (2018). There, the Supreme Court stated its decision was a narrow one and was not
       expressing a view on real-time CSLI (cell-site location information). The Court also stated:

                Further, even though the Government will generally need a warrant to access CSLI, case-
                specific exceptions may support a warrantless search of an individual’s cell-site records
                under certain circumstances. One well-recognized exception applies when the exigencies
                of the situation make the needs of law enforcement so compelling that a warrantless
                search is objectively reasonable under the Fourth Amendment. Such exigencies include
                the need to pursue a fleeing suspect, protect individuals who are threatened with
                imminent harm, or prevent the imminent destruction of evidence.


                As a result, if law enforcement is confronted with an urgent situation, such fact-specific
                threats will likely justify the warrantless collection of CSLI. Lower courts, for instance,
                have approved warrantless searches related to bomb threats, active shootings, and child
                abductions. Our decision today does not call into doubt warrantless access to CSLI in
                such circumstances. While police must get a warrant when collecting CSLI to assist in
                the mine-run criminal investigation, the rule we set forth does not limit their ability to
                respond to an ongoing emergency.


       Id. at 2222-23.



       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018                           Page 7 of 15
[14]   Johnson also claims error with the trial court’s admission of statements he

       made to Lakisha Fisher, his probation officer, the morning after Cotton was

       murdered. During that conversation, Johnson complained that he was being

       treated unfairly by the police with regard to the investigation into Cotton’s

       murder and explained that he had met Cotton the previous night in order to
                           3
       purchase Spice from him. He stated, “See this what happened,” at which

       point, Fisher informed him that he did not have to discuss the matter with her,

       but Johnson interrupted her saying, “[N]ah…nah…it[’]s cool, cuz I know I’m

       telling the truth.” Ex. Vol. 6, p. 40. After telling Fisher of his exchange with

       Cotton, Johnson, “with his head leaned to the side, [in] what appeared to this

       officer as a gangsta style demeanor,” said, “‘I served him up.’” Id. Fisher

       reported that in her “knowledge of street slang and growing up in the Detroit

       metro area, the term ‘served up’ means ‘to punish’ to give a person ‘what they

       deserve.’” Id. Johnson appeals the admission of these statements on two

       grounds: 1) the juvenile waiver of rights statute and 2) Indiana Evidence Rule

       617.


[15]   At the suppression hearing, juvenile probation officer Fisher testified that in

       2015 she was Johnson’s probation officer. She stated that on the morning

       following Cotton’s murder, the juvenile detention officer called her and




       3
        Spice is a mix of herbs and manmade chemicals with mind-altering effects. It is often called “synthetic
       marijuana” or "fake weed" because some of the chemicals in it are similar to ones in marijuana, but its effects
       are sometimes very different from marijuana and are frequently much stronger. NIDA FOR TEENS,
       https://teens.drugabuse.gov/drug-facts/spice (last visited December 13, 2018).


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018                      Page 8 of 15
informed her that Johnson was asking to speak with her. She explained that

she assumed Johnson wanted to talk about his pending probation violations, so

she went to speak with him to find out what questions he had. She testified:


        [State:]       Had you had any contact or communication with
        law enforcement investigating the death of Mark Cotton prior to
        go[ing] to the detention, uh, center to speak with Shakur
        Johnson?


        [Fisher:]        No.


        [State:]    Was it your intention to gather information or learn
        from Shakur Johnson if he knew anything about the death of
        Mark Cotton?


        [Fisher:]        No.


Tr. Vol. 2, p. 66. Fisher stated that her conversation with Johnson initially

concerned his probation violations. She continued:


        [State:]     Did, uh, Shakur Johnson at any time then begin
        talking about his interaction with the police, and the investigation
        about Mark Cotton?


        [Fisher:]        Yes.


        [State:]     Did you say or do anything to change the topic of
        conversation to a Marion Police Department investigation or the
        death of Mark Cotton?


        [Fisher:]    I didn’t say anything to change to, toward that
        conversation, no.

Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 9 of 15
        [State:]    Was that the Defendant himself that began talking
        about that?


        [Fisher:]        Yes, that’s correct.


        [State:]         Did he initiate that topic?


        [Fisher:]        Yes, he did.


        [State:]         And as he did, did you ask him any questions?


        [Fisher:]        No, I did not ask any questions.


        [State:]     Did you at any point advise him that he did not
        need to be speaking to you about that topic?


        [Fisher:]        Yes, yes I did.


        [State:]         And when you did, how did the Defendant
        respond?


        [Fisher:]   Um, he said, ‘[N]ah, nah, I’m gonna tell you, uh, I
        wanna tell my side of the story’ something to that nature.


        [State:]      You did not read Miranda or advise him of rights.
        Is that correct?


        [Fisher:]        No.


        [State:]     This was not a situation where you [were] intending
        to question him about delinquent or criminal behavior. Is that
        right?

Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 10 of 15
               [Fisher:]        No.


               [State:]         Was this, uh, Ms. Fisher, an interrogation?


               [Fisher:]        No, it was not.


               [State:]      Was this even an interview by you where you were
               trying to gather information from Shakur Johnson?


               [Fisher:]    No, it was not an interview. It was just a simple
               going to see what he want[ed] and allow him to, uh, talk.


       Id. at 67-68.


[16]   Indiana Code section 31-32-5-1 (1997) is the juvenile waiver of rights statute. It

       provides that any rights guaranteed to a child under the federal or state

       constitutions or any other law may be waived only:


               (1) by counsel retained or appointed to represent the child if the
               child knowingly and voluntarily joins with the waiver;


               (2) by the child’s custodial parent, guardian, custodian, or
               guardian ad litem if:


                        (A) that person knowingly and voluntarily waives the
                        right;


                        (B) that person has no interest adverse to the child;


                        (C) meaningful consultation has occurred between that
                        person and the child; and


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 11 of 15
                        (D) the child knowingly and voluntarily joins with the
                        waiver; or


               (3) by the child, without the presence of a custodial parent,
               guardian, or guardian ad litem, if:


                        (A) the child knowingly and voluntarily consents to the
                        waiver; and


                        (B) the child has been emancipated under IC 31-34-20-6 or
                        IC 31-37-19-27, by virtue of having married, or in
                        accordance with the laws of another state or jurisdiction.


       Id. Generally, the juvenile rights waiver statute and the safeguards of the

       Miranda warnings attach only where a subject is both in custody and subject to

       interrogation by police. S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011),

       trans. denied.


[17]   Here, Johnson was in custody and made statements to his probation officer,

       whom he now claims was “working in cooperation with the police.”

       Appellant’s Br. p. 36. Accordingly, the threshold questions in this case are

       whether Fisher was an agent of the police and whether she interrogated

       Johnson.


[18]   “There must be some evidence of an agency relationship before we can find

       one.” D.Z. v. State, 100 N.E.3d 246, 248 (Ind. 2018) (in ultimate determination

       of whether juvenile was under custodial interrogation, court analyzed whether

       assistant principal was agent of police when he talked with juvenile). Here, no


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 12 of 15
       evidence suggests the police directed or encouraged Fisher to act on their behalf

       or that she was acting on any police request to ask certain questions or in any

       way influence the subject matter of her conversation with Johnson. Quite the

       opposite; Johnson requested to speak with Fisher. Indeed, Fisher testified that

       her conversation with Johnson occurred because he requested to speak with

       her. It was not an interrogation—she asked him no questions—and that, in

       speaking with him, she had no intention of gathering information on the

       murder investigation. She further testified that Johnson initiated the change in

       topic from his probation violations to the murder investigation. She advised

       him that he did not need to speak to her about the subject, and he indicated his

       desire to do so.


[19]   We observe also that, in denying the suppression of these statements, the trial

       court stated, “Ms. Fisher is not a law enforcement officer. Unlike law

       enforcement, she is a probation officer who serves at the pleasure of the courts

       that appointed her. . . . Courts are not engaged in law enforcement; therefore,

       its employees are also not engaged in enforcing the law.” Appellant’s App. Vol.

       2, p. 95. The court cited Indiana Code section 11-13-1-1 (2003) which sets forth

       the appointment, qualifications, responsibilities, and salary of probation officers

       and states that probation officers “shall serve at the pleasure of the appointing

       court and are directly responsible to and subject to the orders of the court.”

       Ind. Code § 11-13-1-1(c).


[20]   We turn next to whether Fisher’s conversation with Johnson was an

       interrogation. “Interrogation has been defined as a process of questioning by

       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 13 of 15
       law enforcement officials which lends itself to obtaining incriminating

       statements.” S.G., 956 N.E.2d at 675. The process includes express

       questioning and words or actions on the part of the police that they know are

       reasonably likely to elicit an incriminating response from the suspect. Id.


[21]   There is no evidence of any questioning by Fisher, much less questioning

       intended to elicit an incriminating response. Johnson requested to speak with

       Fisher and changed the topic of conversation from his probation violations to

       Cotton’s murder. Fisher asked Johnson no questions; instead, Johnson

       volunteered the information even after Fisher advised him of his prerogative not

       to talk about the investigation. We conclude Fisher was not acting as an agent

       for the police, and she did not subject Johnson to an interrogation. Thus,

       neither the juvenile rights waiver statute nor the Miranda warnings were

       triggered.


[22]   Finally, Evidence Rule 617 requires that statements made during custodial

       interrogations conducted in a place of detention in felony criminal prosecutions

       shall not be admitted against the defendant unless they have been recorded.

       For reasons previously stated, Johnson’s conversation with Fisher was not an

       interrogation, and, thus, admission of Johnson’s statements at trial do not run

       afoul of Rule 617.


[23]   For the foregoing reasons, we conclude the trial court did not abuse its

       discretion by admitting the evidence seized at Weaver’s apartment or by

       admitting Johnson’s statements to his probation officer.


       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 14 of 15
[24]   Judgment affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1712-CR-2958 | December 21, 2018   Page 15 of 15
