MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Feb 20 2019, 9:11 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deion Orr,                                               February 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1141
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1603-F4-9303



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019           Page 1 of 16
                               Case Summary and Issues
[1]   Deion Orr was charged with three counts of unlawful possession of a firearm by

      a serious violent felon, all Level 4 felonies, and dealing in marijuana, a Level 6

      felony. A jury found Orr guilty of dealing in marijuana, not guilty of the

      second and third count of unlawful possession of a firearm, and was hung on

      the first count of unlawful possession of a firearm. The State then obtained a

      search warrant for Orr’s cellphone, which had been in evidence since his initial

      arrest, and Orr filed a motion to suppress the evidence recovered from the

      phone. The trial court denied Orr’s motion and, following a second jury trial,

      Orr was found guilty of unlawful possession of a firearm by a serious violent

      felon, a Level 4 felony. Orr now appeals his latter conviction presenting two

      issues for our review of which we find the first dispositive: whether the trial

      court erred in admitting evidence obtained from Orr’s cellphone. Concluding

      the trial court did not err in admitting the evidence, we affirm.



                            Facts and Procedural History
[2]   Following a several month investigation and surveillance of Orr’s residence,

      officers of the Indianapolis Metropolitan Police Department served a no-knock

      search warrant on March 7, 2016. Orr was found in the northeast bedroom of

      the residence (“Bedroom #1”), seated on the floor next to the bed, along with




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 2 of 16
      his friend, David Gibbs, who was standing at the foot of the bed.1 Police

      located Orr’s mother, Natalie Orr, and her friend Phillip Powell in the north

      bedroom (“Bedroom #3”). All four subjects were detained, informed of the

      search warrant, and advised of their Miranda rights.


[3]   During a search of Bedroom #1, police found a cellphone lying on the bed. Orr

      provided his cellphone number to police and the cellphone rang when police

      called Orr’s phone number. Police located a loaded .40 caliber Glock handgun

      in a holster under the sheet of the bed near the cellphone. A debit card, a

      hospital bill, and another piece of mail addressed to Orr were found on top of a

      dresser next to a digital scale. Inside one of the dresser drawers, police found a

      gun cleaning kit, Orr’s high school ID card from 2011, and four glass mason

      jars containing marijuana.2 A bulletproof vest was leaning against the side of

      the dresser. A floor safe contained Orr’s current Indiana driver’s license and

      $3,976 in cash. Two glass mason jars containing marijuana were found in a

      backpack by the bed and a second digital scale was found near the backpack. A

      box of empty mason jars was on the floor. Police found an inoperable

      cellphone on a chair in the bedroom and a single .40 caliber round of

      ammunition. Police also found a casino card with the name Ronnie Orr, Orr’s

      brother, who was not present in the house but occasionally stayed there.




      1
          A second bedroom (“Bedroom #2”) was empty but later searched for evidence.
      2
          Orr’s fingerprint was found on one of the jars.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 3 of 16
[4]   In their search of Bedroom #2, police found an ammunition magazine

      underneath a foam mattress that was compatible with the .40 caliber Glock

      handgun found in Bedroom #1. Ronnie’s expired Indiana handgun permit was

      located near the magazine and a letter from the Indiana State Police rejecting

      the renewal of Ronnie’s Indiana handgun permit. Police found an additional

      mason jar containing marijuana, another digital scale, a second .40 caliber

      Glock handgun, and a Ruger rifle.


[5]   In total, police recovered 915 grams of marijuana and all three digital scales

      tested positive for marijuana residue. The State charged Orr with three counts

      of unlawful possession of a firearm by a serious violent felon, all Level 4

      felonies, and dealing in marijuana, a Level 6 felony. The three firearm

      possession charges pertained to the .40 caliber Glock handgun found in

      Bedroom #1, the .40 caliber Glock handgun found in Bedroom #2, and the

      Ruger rifle found in Bedroom #2, respectively. Following a trial on December

      5-6, 2017, the jury found Orr guilty of dealing in marijuana, not guilty of the

      second and third count of unlawful possession of a firearm, and was unable to

      reach a verdict on the first count of unlawful possession of a firearm.


[6]   A week after the trial, on December 14, 2017, Detective Ryan VanOeveren filed

      an affidavit for a search warrant which stated, in relevant part:


              Based upon the investigation further described below, this Affiant
              believes and has probable cause to believe that certain evidence
              of the crime of Dealing in Marijuana and Possession of a Firearm
              by a Serious Violent Felon will be found within the following
              described property:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 4 of 16
                LG cell phone, Phone# 317-871-xxxx, serial number
                510CYLH0291792 belonging to Deion Orr. (Bedroom #1)


                Kyocera cell phone, serial number V65C5170 (Bedroom
                #1)


                LG cellphone. serial number 501CYDG0663338
                (Bedroom #2)


        In support of your affiant’s assertion of probable cause, the
        following facts are within this Affiant’s personal knowledge or
        have been learned through the investigation:


        On March 7, 2016 at approximately 11:00pm, I, Ryan
        VanOeveren, a police officer with the Indianapolis Metropolitan
        Police Department and assisting IMPD officers served a signed
        and valid no knock search warrant at [Orr’s residence]. The
        IMPD SWAT team made forced entry into the residence and
        located black male [Orr] and black male [Gibbs] in the northeast
        bedroom (Bedroom #1). SWAT members also located Natalie
        Orr and Phil Powell in the north bedroom (Bedroom #3). All
        four subjects were detained and brought to the living room where
        I read them the contents of the search warrant. All four subjects
        stated they understood the contents of the search warrant. I read
        all four subjects their Miranda warnings and all four subjects
        stated they understood their rights. A detailed search of the
        residence was conducted.


        ***


        This affiant knows that individuals will likely have digital
        photographs and/or videos of themselves and/or
        unknown/known associates on their cell phone devices and
        viewing the digital data will aid law enforcement in the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 5 of 16
              prosecution of Deion Orr. Furthermore, accessing incoming and
              outgoing phone call logs, incoming and outgoing text messages,
              and social media data from Deion Orr’s cellphone will provide
              further evidence of the crime of dealing in narcotics, firearms
              violations, and other criminal activity.


      Appellant’s Appendix, Volume III at 19-21. The cellphones had been in police

      custody since Orr’s initial arrest on March 7, 2016. The trial court issued a

      search warrant for the cellphones on December 14, 2017. See id. at 32.


[7]   During the search of the cellphone found on the bed in Bedroom #1, the user

      account information indicated that the cellphone was connected to the email

      address “deionorr3@xxxxx.com.” Transcript, Volume IV at 118. Police found

      two pictures of a handgun: one from 9:45 p.m. on December 8, 2015, and a

      second from 7:35 p.m. on December 9, 2015. Detective VanOeveren later

      testified that the handgun in the photographs looked very similar to the

      handgun found in Bedroom #1 and that the two shared specific characteristics

      not found in other generations of the Glock handgun. See id. at 149-51. Police

      also found several “selfies” of Orr on the cellphone and a photograph of Orr

      dated January 1, 2016.


[8]   On March 2, 2018, Orr moved to suppress the evidence found on the cellphone

      alleging that the information in the probable cause affidavit was stale, that the

      State had “forum shopped” by not submitting the search warrant request to the

      judge presiding over Orr’s prosecution, and that Detective VanOeveren had

      misled the issuing judge by omitting information that the case had already gone



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 6 of 16
       to trial and the resulting verdicts from the trial. See Appellant’s App., Vol. II at

       237.


[9]    A second jury trial was conducted on the first count of unlawful possession of a

       firearm on March 6, 2018. The trial court orally denied Orr’s motion to

       suppress and the evidence obtained from the cellphone was admitted over Orr’s

       objection. The jury found Orr guilty of unlawful possession of a firearm. Orr

       waived a jury for the second phase of the trial and stipulated that he was a

       serious violent felon due to his prior conviction for Class B felony robbery. The

       trial court imposed a ten-year sentence on the firearm possession conviction and

       a two-year sentence on the dealing in marijuana conviction to be served

       concurrently. Orr now appeals.



                                  Discussion and Decision
                                       I. Standard of Review
[10]   Although Orr presented a pretrial motion to suppress, he did not seek

       interlocutory review of that decision when it was denied. Thus, we consider his

       issue on appeal as a review of the trial court’s decision to admit evidence at

       trial. 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.”).


[11]           In ruling on admissibility following the denial of a motion to
               suppress, the trial court considers the foundational evidence
               presented at trial. It also considers the evidence from the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 7 of 16
               suppression hearing that is favorable to the defendant only to the
               extent it is uncontradicted at trial. Because the trial court is best
               able to weigh the evidence and assess witness credibility, we
               review its rulings on admissibility for abuse of discretion and
               reverse only if a ruling is clearly against the logic and effect of the
               facts and circumstances and the error affects a party’s substantial
               rights. But the ultimate determination of the constitutionality of
               a search or seizure is a question of law that we consider de novo.


       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (citations and quotations

       omitted). Furthermore, we “may affirm the trial court’s ruling if it is

       sustainable on any legal basis in the record, even though it was not the reason

       enunciated by the trial court.” Harris v. State, 19 N.E.3d 298, 301 (Ind. Ct. App.

       2014), trans. denied.


                                      II. Search and Seizure
[12]   Orr argues that the trial court erred in admitting the evidence collected from his

       cellphone pursuant to a search warrant because the search was unreasonable

       and thus unconstitutional under the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. Specifically,

       Orr claims that the information contained in the search warrant was stale

       because it simply recycled the probable cause affidavit submitted with Orr’s

       original charges over a year and half earlier and omitted information from the

       intervening period, such as the fact that Orr was already convicted of dealing in

       marijuana.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 8 of 16
[13]   It is well-settled that the extraction of data from a cellphone constitutes a search

       that requires police to obtain a search warrant prior to extraction. Riley v.

       California, 134 S.Ct. 2473, 2493 (2014). 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. Breitweiser v. State,

       704 N.E.2d 496, 499 (Ind. Ct. App. 1999). Probable cause is “a fluid concept

       incapable of precise definition . . . [and] is to be decided based on the facts of

       each case.” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). “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 . . . there is a fair

       probability that contraband or evidence of a crime will be found in a particular

       place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The reviewing court’s duty is

       to determine whether the issuing magistrate had a “substantial basis” for

       concluding that probable cause existed. Id. at 238-39. “[A] substantial basis

       requires the reviewing court, with significant deference to the magistrate’s

       determination, to focus on whether reasonable inferences drawn from the

       totality of the evidence support the determination” of probable cause. Houser v.

       State, 678 N.E.2d 95, 99 (Ind. 1997). A “reviewing court” for this purpose

       includes both the trial court ruling on a suppression motion and an appellate

       court reviewing that decision. Id. at 98. Furthermore, we resolve any doubt in

       favor of upholding the warrant, and we will not invalidate a warrant by

       interpreting probable cause affidavits in a hypertechnical, rather than a

       commonsense, manner. Rios v. State, 762 N.E.2d 153, 161 (Ind. Ct. App. 2002).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 9 of 16
                                 A. Omission of Material Facts
[14]   First, Orr argues the trial court erred in admitting the evidence from his

       cellphone because the police were required to disclose in the probable cause

       affidavit that Orr had already been tried in this case and had been found guilty

       of dealing in marijuana and not guilty of two of the three firearm charges.


[15]   In Ware v. State, a panel of this court explained that “a probable cause affidavit

       must include all material facts, which are those facts that ‘cast doubt on the

       existence of probable cause.’” 859 N.E.2d 708, 718 (Ind. Ct. App. 2007)

       (quoting Query v. State, 745 N.E.2d 769, 772 (Ind. 2001)), trans. denied. When

       the State has failed to include one or more material facts in its application, we

       determine the validity of the warrant by considering the omitted information

       and the information contained in the affidavit together. Id. In order for the

       warrant to be invalid, the defendant must show:


               (1) that the police omitted facts with the intent to make, or in
               reckless disregard of whether they thereby made, the affidavit
               misleading, . . . and (2) that the affidavit if supplemented by the
               omitted information would not have been sufficient to support a
               finding of probable cause.


       Id.


[16]   Applied here, Orr must show: (1) the police failed to include the information

       from Orr’s first trial with the intent to make, or in reckless disregard of whether

       they would thereby make the affidavit misleading; and (2) if the affidavit had



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 10 of 16
       disclosed the information from Orr’s first trial, the affidavit would not have

       been sufficient to support a finding of probable cause.


[17]   Omissions from a probable cause affidavit are made with reckless disregard “if

       an officer withholds a fact in his ken that ‘[a]ny reasonable person would have

       known that this was the kind of thing the judge would wish to know.’” Gerth v.

       State, 51 N.E.3d 368, 374-75 (Ind. Ct. App. 2016) (quoting Wilson v. Russo, 212

       F.3d 781, 788 (3rd Cir. 2000)). Here, the affidavit purported “that certain

       evidence of the crime of Dealing in Marijuana and Possession of a Firearm by a

       Serious Violent Felon will be found” and that the information “will provide

       further evidence of the crime of dealing in narcotics, firearms violations, and

       other criminal activity.” Appellant’s App., Vol. III at 19, 21. Thus, the

       affidavit implied Orr was involved in ongoing narcotic and firearm crimes and

       the need to obtain evidence from the phone was critical to his prosecution. The

       officer made this representation despite the facts that Orr had already been

       convicted of dealing in marijuana, remained in police custody, and was found

       not guilty of two of the three firearms charges. See, e.g., Thompson v. State, 259

       Ind. 587, 290 N.E.2d 724, 726 (1972) (noting “[t]he Double Jeopardy clause is

       assurance that the State will not be allowed to make repeated attempts to

       convict an accused for the same offense”) (citing U.S. Const. amend. V and

       XIV; Ind. Const. art. 1, § 14). We therefore agree that the omitted information

       regarding Orr’s first trial was the kind of thing that any reasonable person

       would have known the judge would wish to know, see Gerth, 51 N.E.3d at 375,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 11 of 16
       and Orr has made a showing that the information was omitted with reckless

       disregard of whether the affidavit would be misleading.


[18]   Proceeding to the second prong of the inquiry, however, we conclude Orr has

       failed to demonstrate that had the affidavit disclosed the omitted information,

       the affidavit would have been insufficient to support a finding of probable

       cause. To the contrary, portions of the affidavit pertaining to the remaining

       firearm charge still provided the issuing judge with a “substantial basis” for

       concluding that probable cause existed. See Gates, 462 U.S. at 238-39.

       Therefore, while we take this opportunity to remind police that “the best course

       . . . to follow is to include any information that could conceivably affect a

       probable cause determination[,]” Ware, 859 N.E.2d at 720, we conclude the

       omission at issue here was not fatal.


                                                B. Staleness
[19]   Next, Orr argues the trial court erred in admitting the evidence from his

       cellphone seized on March 7, 2016, because much of the information in the

       probable cause affidavit was stale by the time of the issuance of the search

       warrant on December 14, 2017.


[20]           “It is a fundamental principle of search and seizure law that the
               information given to the magistrate or judge in the application for
               a search warrant must be timely.” Breitweiser v. State, 704 N.E.2d
               496, 499 (Ind. Ct. App. 1999) (citing Sgro v. United States, 287
               U.S. 206 (1932)). Stale information gives rise to a mere suspicion
               and not a reasonable belief, especially when the items to be
               obtained in a search are easily concealed and moved. Raymer v.
               State, 482 N.E.2d 253, 255 (Ind. 1985). Although the age of the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 12 of 16
               information supporting an application for a warrant can be a
               critical factor when determining the existence of probable cause,
               our courts have not established a bright-line rule regarding the
               amount of time which may elapse between obtaining the facts
               upon which the search warrant is based and the issuance of the
               warrant. Breitweiser, 704 N.E.2d at 499.


       Frasier v. State, 794 N.E.2d 449, 457 (Ind. Ct. App. 2003) (citation omitted),

       trans. denied. Probable cause is not determined by merely counting the number

       of days between the occurrence of the facts relied upon and the issuance of the

       search warrant. Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008),

       trans. denied. Rather, whether the information is tainted by staleness must be

       determined by the facts and circumstances of each particular case, which

       includes the nature of the crime and the nature of the evidence seized or sought.

       Id. at 378.


[21]   Here, the State sought evidence in connection to a charge of unlawful

       possession of a firearm by a serious violent felon. The State first alleged direct

       evidence of Orr’s possession of the firearm may be found in photographs,

       videos, emails, or text messages. And second, due to cellphone’s proximity to

       the .40 caliber Glock handgun in Bedroom #1, the State sought evidence

       connecting Orr to the phone and identifying him as the owner of the phone in

       order to prove his constructive possession of the handgun. See Gee v. State, 810

       N.E.2d 338, 340-41 (Ind. 2004) (noting the mingling of the contraband with

       other items owned by the defendant is an additional circumstance establishing

       the defendant’s constructive possession of the contraband).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 13 of 16
[22]   Applying the staleness doctrine to the facts presented here, we conclude the

       information in the probable cause affidavit remained largely unaffected by the

       passage of time. As the Seventh Circuit has explained,


               “Staleness” is highly relevant to the legality of a search for a
               perishable or consumable object, like cocaine, but rarely relevant
               when it is a computer file. Computers and computer equipment
               are not the type of evidence that rapidly dissipates or degrades.


       U.S. v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012), cert. denied, 568 U.S. 1113

       (2013).3 Indeed, where, as here, a cellphone has remained in police custody,

       staleness is even less relevant to the legality of the search because any evidence

       will almost certainly remain. See, e.g., U.S. v. Flores-Lopez, 670 F.3d 803, 809

       (7th Cir. 2012) (noting it is “conceivable, [but] not probable,” that a confederate

       of a defendant could have wiped data from a defendant’s cellphone before the

       government could obtain a search warrant); Commonwealth v. Knoble, 188 A.3d

       1199, 1207 (Pa. Super. Ct. 2018) (concluding that where a cellphone was in

       police custody during a nine-month period between the first and second search,

       it was “evident that the facts and circumstances presented to the magistrate who

       issued the initial search warrant did not change”), appeal denied; Commonwealth

       v. Ericson, 10 N.E.3d 127, 133 (Mass. App. Ct. 2014) (concluding that where a

       cellphone has remained in police custody “the information (content of the cell




       3
        For the purposes of the staleness doctrine, we view the Seventh Circuit’s discussion of computers and
       computer equipment as sufficiently akin to modern cellphone technology.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019              Page 14 of 16
       phone) supporting the probable cause determination is less likely to change”),

       review denied.


[23]   Orr was a serious violent felon due to his robbery convictions in 2012, see

       Appellant’s App., Vol. III at 106, and he was prohibited from “knowingly or

       intentionally possess[ing] a firearm” from that point on. Ind. Code §§ 35-47-4-

       5(b)(13); 35-47-4-5(c). As the photographs obtained by the State were here,

       evidence obtained from the cellphone could be electronically dated. This

       evidence tended to show Orr knowingly or intentionally possessed a firearm

       after his previous convictions but before his cellphone was seized. And, because

       the cellphone remained in police custody since the date of its seizure, any

       evidence that was contained in the cellphone was all but certain to still be there

       on the date of the search warrant—regardless of how much time had passed.


[24]   Therefore, given the nature of Orr’s alleged crime, the evidence sought by the

       State, and the fact that the cellphone had remained in police custody since its

       initial seizure, we conclude the information presented in the probable cause

       affidavit was not rendered unconstitutionally stale by the mere passage of time.

       As such, Orr has failed to demonstrate the trial court erred in admitting the

       fruits thereof.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019   Page 15 of 16
                                                 Conclusion               4




[25]   For the reasons set forth above, we hold the trial court did not err in admitting

       the evidence obtained from Orr’s cellphone. Accordingly, we affirm Orr’s

       conviction.


[26]   Affirmed.


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




       4
         Orr also argues that there was insufficient evidence to sustain his conviction of unlawful possession of a
       firearm by a serious violent felon. However, Orr’s argument on this issue is premised on his argument that
       the trial court erred in admitting evidence obtained from his cellphone. Because we hold the trial court did
       not err in admitting the evidence, we need not consider this argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1141 | February 20, 2019                Page 16 of 16
