MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                May 24 2016, 8:58 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                     Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General

                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary A. Williams,                                       May 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1510-CR-1847
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1505-F4-28



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016           Page 1 of 7
[1]   Following a jury trial, Gary A. Williams was convicted of Level 4 felony

      unlawful possession of a firearm by a serious violent felon, Class A

      misdemeanor possession of a controlled substance, and Class B misdemeanor

      possession of marijuana. He was also adjudicated a habitual offender. The

      convictions were based on evidence discovered after Williams consented to a

      search of his pocket. Williams claims that the search extended beyond the

      scope of his consent and, therefore, the evidence found during and after the

      search should have been excluded from evidence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the afternoon of April 29, 2015, Fort Wayne Police Officer George Nicklow

      was in a parking lot surveilling the apartment of a known gang member.

      Officer Nicklow was in uniform but driving an unmarked vehicle. He observed

      an SUV drive slowly toward him and pull into the parking spot on the officer’s

      passenger side. Williams, the later-identified driver of the SUV, made eye

      contact with Officer Nicklow and then backed into a parking spot behind

      Officer Nicklow. Williams stayed in his vehicle and watched the officer. After

      about five minutes, Officer Nicklow became concerned and radioed Officer

      Robert Hollo, who was in the area. Shortly thereafter, Williams left the parking

      lot and drove to a nearby gas station.


[4]   Officer Hollo watched Williams from a distance. Williams “put the gas nozzle

      in his tank” for only about two minutes and then left, “like he didn’t even pay”.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016   Page 2 of 7
      Trial Transcript at 142, 143. Officer Hollo informed Officer Nicklow that

      Williams appeared to be returning to the apartment complex, so Officer

      Nicklow returned to the complex.


[5]   Upon arriving, Officer Nicklow observed Williams’s SUV parked in front of a

      different apartment building. Williams was not inside the SUV, but the engine

      was running. Williams came out of the apartment after a couple minutes and

      entered the SUV, backed out, and then parked behind Officer Nicklow in about

      the same area he had before. In light of this suspicious activity, Officer

      Nicklow asked Officer Hollo to return to the area. Officer Hollo quickly

      returned and parked nearby.


[6]   As the uniformed officers exited their vehicles to approach the SUV, Williams

      stepped out with a diaper bag on his shoulder. Williams spoke first, saying

      “what’s up[?]” Id. at 147. Officer Hollo responded, “how’s it going[?]” Id.

      Officer Hollo noticed a “big bulge” in Williams’s front right pocket. Id. When

      he asked Williams what was in the pocket, Williams did not respond. Officer

      Hollo then asked if he “could see what was inside his pocket.” Id. at 148.

      Williams said, “go ahead.” Id. Officer Hollo reached into the pocket and

      pulled out a translucent pill bottle, which contained what the officer recognized

      to be marijuana.


[7]   Officer Hollo removed the diaper bag from Williams’s shoulder and placed him

      under arrest for possession of marijuana. A subsequent search incident to arrest

      led to the discovery of a larger bag of marijuana, a hydrocodone pill, and


      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016   Page 3 of 7
       several plastic baggies. There was also a loaded gun inside the diaper bag that

       Williams had been carrying, as well as a baby inside the SUV.


[8]    On May 5, 2015, the State charged Williams with Level 4 felony unlawful

       possession of a firearm by a serious violent felon, Class A misdemeanor

       possession of a controlled substance, and Class B misdemeanor possession of

       marijuana. The State later filed a habitual offender allegation.


[9]    On July 30, 2015, Williams filed a motion to suppress. At the conclusion of the

       hearing on August 20, 2015, the trial court denied Williams’s motion to

       suppress. The court expressly found that a consensual encounter occurred

       between Williams and the officers during which Williams consented to the

       search of his pocket.


[10]   Williams’s two-day jury trial commenced on August 26, 2015. Williams

       renewed his suppression argument at trial with objections to the challenged

       evidence, but the trial court admitted the evidence. The jury found Williams

       guilty as charged and found him to be a habitual offender. The trial court

       sentenced him, on September 28, 2015, to an aggregate term of twenty-seven

       years in prison. Williams now appeals on grounds that the search violated the

       Fourth Amendment to the United States Constitution and Article 1, Section 11

       of the Indiana Constitution.


                                       Discussion & Decision




       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016   Page 4 of 7
[11]   Williams improperly frames the issue on appeal in terms of whether the trial

       court erred in denying the motion to suppress. The issue, rather, is whether the

       trial court abused its discretion by admitting the challenged evidence at trial.

       See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). On review for abuse of

       discretion, we will 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. at 260.


[12]   On appeal, Williams effectively concedes that his encounter with Officers Hollo

       and Nicklow was consensual.1 Indeed, he was not in custody or detained in

       any way at the time he gave Officer Hollo permission to search his pocket.

       Williams’s argument is simply that Officer Hollo’s search exceeded the scope of

       the consent given. According to Williams, his consent was limited to a search

       of his pocket to see if it contained a weapon. Once Officer Hollo determined

       that there was no weapon, Williams contends that the officer should have

       ended the search without removing the pill bottle.


[13]   Williams’s argument is well off the mark. As our Supreme Court has

       recognized, many search and seizure issues are resolved in the same manner

       under both the Indiana and Federal Constitutions. See State v. Cunningham, 26

       N.E.3d 21, 25 (Ind. 2015). This case falls within that category. See id. Under

       both Constitutions, a search requires a warrant unless certain narrow exceptions



       1
        “Consensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth
       Amendment analysis.” Id. at 261.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016              Page 5 of 7
       apply, one of which is a search based on lawful consent. Id. See also Florida v.

       Jimeno, 500 U.S. 248, 250-51 (1991) (“we have long approved consensual

       searches because it is no doubt reasonable for the police to conduct a search

       once they have been permitted to do so”).


[14]   A consensual search allows the individual consenting to the search to limit or

       restrict the search as he or she chooses. Cunningham, 26 N.E.3d at 28. The

       scope of the search is generally defined by the expressed object of the search,

       which “limit[s] only ‘where police may look, not what they actually find.’” Id.

       (quoting McIlquham v. State, 10 N.E.3d 506, 513 (Ind. 2014)). See also Jimeno,

       500 U.S. at 251.


[15]   In this case, Williams consented to the search of his pocket by Officer Hollo

       and did not articulate any limitation on the scope of that search. Neither

       Williams nor Officer Hollo stated at the time that the search was intended to be

       a search for weapons, and we will not infer such an unexpressed limitation.

       Based on the brief, casual exchange between Williams and Officer Hollo, a

       “typical reasonable person” would have understood that Williams’s general

       consent to see what was inside his pocket included consent to remove the pill

       bottle from inside that pocket. Jimeno, 500 U.S. at 251 (“The standard for

       measuring the scope of a suspect’s consent…is that of ‘objective’ reasonableness

       – what would the typical reasonable person have understood by the exchange

       between the officer and the suspect?”). Because the search did not exceed the

       scope of Williams’s consent, the trial court properly admitted the evidence.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016   Page 6 of 7
[16]   Judgment affirmed.


[17]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016   Page 7 of 7
