MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Aug 28 2018, 9:04 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jewell Allen,                                            August 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2344
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Richard
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1701-F4-4074



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018          Page 1 of 8
[1]   Jewell Allen appeals his conviction for Level 6 Felony Possession of Cocaine, 1

      arguing that the trial court should have excluded all evidence obtained from the

      search incident to his arrest. Finding no error, we affirm.


                                                    Facts

[2]   In early January 2017, Detective Gregory Kessie of the Indianapolis

      Metropolitan Police Department (IMPD) coordinated two controlled buys with

      a confidential informant. The informant completed two separate transactions

      for crack cocaine with Allen under controlled circumstances. The buys took

      place at Allen’s apartment on North Webster Avenue in Indianapolis. The

      police monitored the buys through continuous surveillance outside of Allen’s

      apartment but did not personally witness the transactions. Before and after each

      controlled buy, the informant was thoroughly searched by the police.


[3]   The informant reported back to the police immediately after the buys and

      informed them that Allen had sold him crack cocaine. Additionally, the

      informant provided a description of Allen, stated that Allen had a “dog and

      possibly a look-out,” and on January 24, 2017, identified Allen from a photo

      array as the one who had sold him the crack cocaine. St. Ex. 37.


[4]   Based on this information, on January 27, 2017, Detective Kessie obtained and

      executed a warrant to search Allen’s apartment and to arrest him. The warrant




      1
          Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 2 of 8
      listed Allen as a person to be seized, and the scope of the warrant was limited to

      Allen’s home. St. Ex. 1. Allen was not in his apartment when the warrant was

      executed. While inside the apartment, the police discovered a small bag of

      marijuana, marijuana “roaches,” two digital scales laced with a substance later

      discovered to be cocaine, and a firearm in plain view.


[5]   Allen is a serious violent felon by virtue of his criminal history. As such, he is

      not permitted to possess a firearm. Furthermore, at the time of the search, Allen

      was on home detention, the terms of which explicitly prohibited him from

      keeping a firearm in his home.


[6]   Immediately after conducting a search of Allen’s apartment, several officers

      went to search for Allen, eventually finding him on a public street a few miles

      away from his apartment. Detective Kessie arrived and arrested Allen.

      Detective Kessie also conducted a pat-down search of Allen and discovered

      thirty-one individually wrapped bags filled with crack cocaine.


[7]   After receiving his Miranda2 warnings, Allen spoke with the police. Allen

      admitted to purchasing and selling crack cocaine and to using the scales at his

      apartment for measuring controlled substances. Such statements, coupled with

      the discovery of drugs on his person, were used as evidence in Allen’s criminal

      trial.




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 3 of 8
[8]    On January 31, 2017, the State charged Allen with Level 4 felony dealing in

       cocaine, Level 5 felony possession of cocaine,3 and Class B misdemeanor

       possession of marijuana. Before his trial, Allen moved to suppress evidence

       obtained from the search incident to his arrest, claiming that the State had

       violated his rights under the United States and Indiana Constitutions. The trial

       court denied his motion.


[9]    Allen’s jury trial took place on August 31, 2017. At the trial, Allen objected to

       the admission of the evidence obtained from the search incident to his arrest.

       The trial court overruled the objection and admitted the evidence.


[10]   The jury found Allen not guilty of Level 4 felony dealing in cocaine but found

       him guilty of the lesser included offense of Level 6 felony possession of cocaine.

       The jury also found Allen guilty of Class B misdemeanor possession of

       marijuana.


[11]   On September 18, 2017, the trial court sentenced Allen to 266 days for

       possession of cocaine and to a concurrent term of 180 days for possession of

       marijuana. Allen now appeals.




       3
           The State dismissed this charge at the outset of trial.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 4 of 8
                                  Discussion and Decision

[12]   Allen argues that the trial court erroneously admitted evidence in violation of

       the Fourth Amendment to the United States Constitution. Allen does not assert

       any violations of the Indiana Constitution on appeal.


[13]   We are tasked with reviewing the trial court’s decision to admit evidence. We

       will not reverse the trial court’s admission “unless the ‘trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it.’”

       Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014) (quoting Estate of Carter v.

       Szymczak, 951 N.E.2d 1, 5 (Ind. Ct. App. 2011)).


[14]   Allen argues that his arrest was unlawful as it was not supported by probable

       cause. The Fourth Amendment to the United States Constitution protects

       citizens from unreasonable searches and seizures. Generally, the State must

       obtain a warrant supported by probable cause to search and to arrest an

       individual in her home. Duran v. State, 930 N.E.2d 10, 15 (Ind. 2010).


[15]   However, warrantless arrests conducted outside the home may be permissible.

       Indiana Code section 35-33-1-1(a)(2) states that “[a] law enforcement officer

       may arrest a person when the officer has . . . probable cause to believe the

       person has committed or attempted to commit, or is committing or attempting

       to commit, a felony.” Probable cause exists “when, at the time of the arrest, the

       arresting officer has knowledge of facts and circumstances which would warrant




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 5 of 8
       [a person] of reasonable caution to believe that the defendant committed the

       criminal act in question.” Sears v. State, 667 N.E.2d 662, 667 (Ind. 1996).


[16]   In this case, the police had probable cause to believe that Allen had engaged

       and was engaging in the illegal sale of narcotics based on the two controlled

       buys between Allen and the confidential informant. See Mills v. State, 177

       Ind.4App. 432, 379 N.E.2d 1023 (Ind. Ct. App. 1978) (holding that police may

       use information gleaned from a confidential informant’s controlled buys with a

       suspect to attain probable cause). The buys were conducted in a wholly

       controlled environment. The evidence demonstrates that both before and after

       the two separate transactions, the police searched the confidential informant to

       ensure he did not already have drugs or other paraphernalia on him.

       Additionally, the informant wore recording devices to properly and accurately

       document the transactions. After both transactions, the confidential informant

       returned with drugs that he had obtained with money provided by the police for

       the purpose of a controlled buy. Most importantly, for both transactions, the

       police conducted close surveillance of Allen’s apartment to ensure that no one

       else entered or exited the residence. Later, the confidential informant identified

       Allen from a photo array as the dealer in the drug transactions. As such, the

       controlled informant’s information provided the police with probable cause to

       believe that Allen had committed a felony.


[17]   Additionally, police officers discovered a firearm in plain view in Allen’s

       apartment. Allen had previously been convicted of felony battery against a

       public official, felony resisting law enforcement, and felony possession of a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 6 of 8
       narcotic drug; police had knowledge of Allen’s criminal history before

       searching his apartment. Allen’s criminal history classifies him as a serious

       violent felon. As such, it is a felony for him to possess a firearm.4 While owning

       a firearm is not per se evidence of felonious conduct, the police’s prior

       knowledge of Allen’s criminal history coupled with the knowledge that Allen

       was under a contractual duty not to own a firearm made it immediately

       apparent that possession of the firearm was illegal.


[18]   Allen argues that the initial warrant authorized police to arrest him, but only in

       his home. According to Allen, the police need a new warrant and/or more

       definite proof to arrest him outside of his home. We disagree. It is true that the

       warrant was limited to a search and seizure of Allen in his home. However,

       police also had probable cause to suspect Allen had committed or was

       committing a felony, based on the controlled buys and the firearm discovered in

       his apartment. This probable cause was all that police needed to arrest Allen—

       no warrant was required. Therefore, this argument is unavailing.


[19]   Because police officers had the requisite probable cause to arrest Allen without

       a warrant, Allen’s arrest was lawful and valid under the Fourth Amendment.

       As such, police were entitled to search him incident to that arrest. Therefore,

       the trial court did not err by admitting this evidence.




       4
           Ind. Code § 35-47-4-5.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 7 of 8
[20]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2344 | August 28, 2018   Page 8 of 8
