MEMORANDUM DECISION                                                                   FILED
                                                                                 09/06/2017, 9:38 am
Pursuant to Ind. Appellate Rule 65(D),                                                CLERK
this Memorandum Decision shall not be                                             Indiana Supreme Court
                                                                                     Court of Appeals
regarded as precedent or cited before any                                              and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James G. Tyler                                           Curtis T. Hill, Jr.
Tell City, Indiana                                       Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Coyle,                                    September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         62A04-1608-CR-1887
        v.                                               Appeal from the Perry Circuit
                                                         Court
State of Indiana,                                        The Honorable Lucy Goffinet,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         62C01-1509-F5-548



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017       Page 1 of 12
[1]   Christopher Coyle brings this interlocutory appeal challenging the trial court’s

      denial of his motion to suppress evidence obtained during a search of his

      property. Coyle argues that the search violated the Fourth Amendment of the

      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution.


[2]   We affirm.


                                        Facts & Procedural History


[3]   The Perry Circuit Court issued a felony arrest warrant for Chad Posey. Posey,

      however, had eluded law enforcement for several weeks. On September 15,

      2015, the Perry Circuit Court issued a second felony arrest warrant for Posey.

      Two days later, U.S. Marshalls “pinged” Posey’s cell phone to Coyle’s

      property. Transcript at 34. After receiving this information, police officers from

      several different law enforcement agencies1 went to Coyle’s home in rural

      Cannelton to locate Posey. Three police vehicles pulled into Coyle’s driveway

      and approached the front of the residence while other officers positioned

      themselves to approach on foot from the back of the property.


[4]   As the officers turned into the driveway to Coyle’s home, an officer in one of

      the cars observed Posey in Coyle’s back yard near a shed. Posey jumped onto

      an ATV and immediately took off on a trail that led into the wooded area




      1
       Agencies represented included U.S. Marshals, the Perry County Sheriff’s Department, and the Tell City
      Police Department.

      Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017      Page 2 of 12
      behind Coyle’s home. That officer communicated his visual of Posey to the

      other officers on the scene.


[5]   Corporal Marty Haughee of the Tell City Police Department was on foot,

      approaching Coyle’s property from the back side through the wooded area.

      Corporal Haughee observed Posey on the ATV come into an open area near the

      home. When Posey saw Corporal Haughee, Posey turned around and headed

      back in the general direction of Coyle’s home.


[6]   Deputy Damion Marsh of the Perry County Sheriff’s Department was one of

      the officers who approached from the front of Coyle’s home. Deputy Marsh

      exited his vehicle and walked around to the back of Coyle’s property. Deputy

      Marsh heard the report that Posey had been sighted and fled on an ATV. He

      also heard Corporal Haughee advise that Posey was seen heading back in the

      direction of Coyle’s property. Not knowing where Posey was, Deputy Marsh

      proceeded into the wooded area, which was outside the perimeter of Coyle’s

      property, and walked down an ATV trail where Posey had last been seen.

      Deputy Marsh never encountered Posey, nor did he hear an ATV.


[7]   Deputy Marsh returned to Coyle’s property while keeping an eye out for Posey.

      As he crossed back into Coyle’s back yard, Deputy Marsh conducted a brief

      search of the perimeter of the yard. He also conducted “a protective sweep”

      around a shed located near the back of Coyle’s yard. Id. at 24. As he walked

      by the shed, Deputy Marsh had to step over what he described as “a tool bag or

      something[,] it had a zipper and it was wide open.” Id. at 21. It was still


      Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 3 of 12
      daylight and Deputy Marsh could see a container of salt and a container of

      rubbing alcohol inside the bag. On a shelf behind the shed, he observed a

      Coleman fuel can that had been painted camouflage. From his training and

      experience, Deputy Marsh knew these items were commonly associated with

      the manufacture of methamphetamine. Deputy Marsh stopped looking around

      the perimeter of the property at that point.


[8]   At the front of the house, a U.S. Marshall was talking to Coyle, asking him

      questions about Posey’s whereabouts. Deputy Marsh approached and asked

      Coyle about the items he observed near the shed. Coyle responded that he

      knew nothing about them. Deputy Marsh then asked Coyle for permission to

      search the property and, after conferring with his wife, Coyle said no. Deputy

      Marsh returned to his police vehicle and started preparing a probable cause

      affidavit for the purpose of obtaining a search warrant.


[9]   Officer David Biever of the Tell City Police Department reported to Coyle’s

      property at the start of his shift to take over the investigation started by Deputy

      Marsh. Deputy Marsh advised Officer Biever of the items he discovered near

      the shed. Officer Biever then completed the probable cause affidavit by adding

      his credentials and then submitted such to a magistrate. Based on the probable

      cause affidavit, a search warrant was issued for Coyle’s property, including the

      outside of the residence but within the boundaries of the property as well as the

      inside of the residence.




      Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 4 of 12
[10]   Two state troopers conducted the search of Coyle’s property. Items located

       outside included camp fuel, sea salt, coffee filters, blister packs, battery

       strippings, and a red bottle that had been burned in a fire pit. Inside the house

       in a “man cave room,” the state troopers found an eye glass case with a glass

       pipe containing residue, burnt foil with residue, a green straw, a fake Pepsi can

       that had an odor of marijuana, a black digital scale, a black glass pipe, and three

       prescription medicine bottles containing marijuana seeds. Id. at 54.


[11]   On September 21, 2015, the State charged Coyle with dealing in

       methamphetamine, a Level 5 felony; possession of methamphetamine, a Level

       6 felony; neglect of a dependent, a Level 5 felony; possession of paraphernalia,

       a Class C misdemeanor; and maintaining a common nuisance, a Level 6 felony.

       On February 16, 2016, Coyle filed a motion to suppress evidence collected both

       outside and inside his home. The trial court held a hearing on the motion to

       suppress on March 24, 2016, and took the matter under advisement. On May

       17, 2016, the trial court entered an ordering denying Coyle’s motion to

       suppress. The trial court thereafter granted Coyle’s motion to certify the matter

       for interlocutory appeal. This court accepted jurisdiction on August 11, 2016.

       Additional facts will be provided as necessary.


                                           Discussion & Decision


[12]   Our review of a trial court’s denial of a motion to suppress evidence is similar to

       other sufficiency issues. Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005). We

       determine whether there was substantial evidence of probative value to support


       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 5 of 12
       the trial court’s ruling. Id. In so doing, we do not reweigh the evidence, and we

       consider conflicting evidence most favorably to the trial court’s ruling. Id.

       Unlike other sufficiency matters, however, we may also consider uncontested

       evidence that is favorable to the defendant. Westmoreland v. State, 965 N.E.2d

       163, 165 (Ind. Ct. App. 2012).


[13]   Coyle argues that Deputy Marsh’s warrantless search of his property violated

       his rights under both the Fourth Amendment of the United States Constitution

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

       argues that Deputy Marsh’s entrance onto his property was for the sole purpose

       of executing an arrest warrant for Posey and that once Deputy Marsh was

       informed that Posey had fled from Coyle’s property, Deputy Marsh had no

       legal basis to be on his property, let alone justify a search of any part thereof.

       Coyle maintains that it was Deputy Marsh’s illegal search of his property near

       the shed that produced the incriminating evidence used to provide the probable

       cause for the search warrant.


[14]   The constitutionality of a search is a question of law, which we review de novo.

       Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of

       reasonable suspicion and probable cause are reviewed de novo. Myers v. State,

       839 N.E.2d 1146, 1150 (Ind. 2005). When a defendant challenges a warrantless

       search, it is the State’s burden to prove the search fell within an exception to the

       warrant requirement. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013).


                                             Fourth Amendment


       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 6 of 12
[15]   The Fourth Amendment protects persons from unreasonable search and

       seizure, and this protection has been extended to the States through the

       Fourteenth Amendment. Krise v. State, 746 N.E.2d 957, 967 (Ind. 2001). The

       touchstone of the Fourth Amendment is reasonableness. J.K. v. State, 8 N.E.3d

       222, 229 (Ind. Ct. app. 2014). See also Terry v. Ohio, 392 U.S. 1, 19 (1968) (“the

       central inquiry under the Fourth Amendment [is] the reasonableness in all the

       circumstances of the particular governmental invasion of a citizen’s personal

       security”). The reasonableness of a search under the Fourth Amendment turns

       on whether the subject of the search has an expectation of privacy and if so

       whether that subjective expectation is reasonable judged by the objective

       criterion of the views of society as a whole. Litchfield, 824 N.E.2d at 358.


[16]   A warrantless search or seizure is per se unreasonable, and the State bears the

       burden to show that one of the well-recognized exceptions to the warrant

       requirement applies. Wilkinson v. State, 70 N.E.3d 392, 402 (Ind. Ct. App.

       2017). One exception that allows police to dispense with the warrant

       requirement is where the “‘exigencies of the situation’ make the needs of law

       enforcement so compelling that the warrantless search is objectively reasonable

       under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94,

       (1978); Holder v. State, 847 N.E.2d 930, 936-37 (Ind. 2006).


[17]   Here, law enforcement had probable cause to believe that Posey could be on

       Coyle’s property after U.S. Marshalls tracked Posey’s cell phone to that




       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 7 of 12
       location. Armed with valid felony arrest warrants2 for Posey, the officers

       entered upon Coyle’s property. Coyle does not argue that the officers could not

       enter his property to execute the arrest warrants. Rather, he argues that once

       Posey fled from his property, Deputy Marsh had no further justification to be

       on his property.


[18]   Our review of the facts leads us to conclude that the circumstances are not as

       cut and dried as Coyle suggests with regard to Posey’s whereabouts. Here, the

       circumstances were that several different law enforcement agencies converged

       on Coyle’s property from different directions to execute outstanding felony

       arrest warrants for Posey, who had evaded police for several weeks. One officer

       reported seeing Posey in Coyle’s back yard and that he fled on an ATV.

       Shortly thereafter, an officer approaching from the backside of Coyle’s property

       reported seeing Posey headed back in the general direction of Coyle’s property.


[19]   As the information from other officers was being reported, Deputy Marsh went

       around the side of Coyle’s house to the back of the property and followed an

       ATV trail in the wooded area just outside the perimeter of Coyle’s property.

       Deputy Marsh did not see Posey and did not hear an ATV. It suffices to say

       that Deputy Marsh knew Posey was in the area, but did not know his

       whereabouts. Deputy Marsh testified that based on the report that Posey was




       2
           Coyle does not dispute the validity of the arrest warrants.


       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 8 of 12
       seen heading back toward Coyle’s property, he believed Posey could have been

       hiding somewhere on the property.


[20]   Unable to locate Posey in the wooded area, Deputy Marsh headed back to

       Coyle’s property to look for Posey and conducted what he called a “protective

       sweep”3 of the perimeter of Coyle’s yard. He also briefly looked for Posey

       around the outside of a shed located near the back perimeter of Coyle’s

       property. Deputy Marsh was not searching for incriminating evidence when he

       came across the zippered bag that was in plain view next to the shed. The bag

       was wide open, allowing him to see the contents thereof. From his training and

       experience, Deputy Marsh associated the items in the bag with manufacturing

       of methamphetamine. Deputy Marsh did not seize the items at that time, but

       instead approached Coyle and requested permission to search the property,

       which Coyle refused to give. Based on his observations of the items in plain

       view, Deputy Marsh had probable cause to seek the search warrant. Based on

       the foregoing, we conclude that Deputy Marsh’s conduct in scanning the

       perimeter of the yard and looking around the shed for Posey was

       constitutionally reasonable and did not violate the Fourth Amendment. Cf.,

       Scott v. State, 803 N.E.2d 1231, 1236 (Ind. Ct. App. 2004) (finding no Fourth




       3
         In Fourth Amendment parlance, a “protective sweep” is “a quick and limited search of premises, incident
       to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a
       cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325,
       327 (1990). Here, Deputy Marshall was not searching the property incident to an arrest, thus his search was
       not technically a “protective sweep” in this sense. He did, however, conduct a visual inspection of the
       property, looking for Posey, who minutes before had been seen in the area.

       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017         Page 9 of 12
       Amendment violation where officer legitimately conducted a protective sweep

       during execution of an arrest warrant). The trial court properly denied Coyle’s

       motion to suppress.


                                             Article 1, Section 11


[21]   Article 1, Section 11, like the Fourth Amendment, bars unreasonable searches

       and seizures. Although the language of Article 1, Section 11 tracks the Fourth

       Amendment verbatim, our Supreme Court has held that they are “analytically

       distinct.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). The legality of a

       governmental search under the Indiana Constitution turns on an evaluation of

       the reasonableness of the police conduct under the totality of the circumstances.

       Id. (citing Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994)).


[22]   When considering the totality of the circumstances, we must consider both the

       degree of intrusion into the subject’s ordinary activities and the basis upon

       which the officer selected the subject of the search or seizure. Myers, 839

       N.E.2d at 1153 (citing Litchfield, 824 N.E.2d at 360). Although there may well

       be other relevant considerations under the circumstances, the reasonableness of

       a search or seizure turns on a balance of: (a) the degree of concern, suspicion, or

       knowledge that a violation has occurred, (b) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities, and (c) the

       extent of law enforcement needs. Id. (citing Litchfield, 824 N.E.2d at 361). The

       degree of intrusion is evaluated from the defendant’s point of view. Duran v.

       State, 930 N.E.2d 10, 18 (Ind. 2010) (citing Litchfield, 824 N.E.2d at 360).


       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 10 of 12
[23]   In determining whether the police behavior was reasonable under Section 11,

       we consider each case on its own facts and construe the constitutional provision

       liberally so as to guarantee the rights of people against unreasonable searches

       and seizures. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). It is the State’s

       burden to prove that the search was reasonable under the totality of the

       circumstances. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).


[24]   The extent of law enforcement needs to enter upon Coyle’s property were great.

       As noted above, the officers entered upon Coyle’s property to apprehend a

       fugitive wanted on outstanding felony arrest warrants who the officers had

       reason to believe was located there. With regard to the degree of intrusion,

       there is no doubt that the arrival of numerous officers would interfere with

       Coyle’s use of his property. The officers, however, were there to find Posey.

       Given that Posey was seen outside of Coyle’s home, Deputy Marsh limited his

       search for Posey to the perimeter of the yard and to an area around a shed

       located within the perimeter of Coyle’s yard. His search was brief and no more

       of an intrusion than the initial entry onto Coyle’s property. Under the

       circumstances, Deputy Marsh’s search during the execution of the arrest

       warrant was justified and reasonable. Cf., Scott, 803 N.E.2d at 1237.


[25]   Finally, the officers entered upon Coyle’s property only after learning that

       Posey, a wanted fugitive, might be located there. The incriminating evidence

       was discovered in plain view as Deputy Marsh was looking for Posey.

       Considering the totality of the evidence, we conclude that Deputy Marsh’s

       conduct was wholly reasonable and did not violate Article 1, Section 11 of the

       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 11 of 12
       Indiana Constitution. The trial court did not err in denying Coyle’s motion to

       suppress.


[26]   We affirm.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 62A04-1608-CR-1887 | September 6, 2017   Page 12 of 12
