MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                         Jun 22 2020, 10:50 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ross G. Thomas                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert W. Hamilton,                                      June 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-133
        v.                                               Appeal from the
                                                         Decatur Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Timothy B. Day, Judge
                                                         Trial Court Cause No.
                                                         16C01-1712-F4-1389



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020                      Page 1 of 14
[1]   Robert W. Hamilton (“Hamilton”) was convicted of unlawful possession of a

      firearm by a serious violent felon,1 a Level 4 felony, possession of

      methamphetamine2 as a Level 5 felony, assisting a criminal as a Level 6 felony,3

      possession of marijuana as a Class B misdemeanor,4 and possession of

      paraphernalia5 as a Class C misdemeanor. He appeals the admission of

      narcotics, paraphernalia, and firearms at his trial and raises two issues under the

      Fourth Amendment to the United States Constitution, which we restate as:


                 I.       Whether an officer’s visual observations through a
                          window of Hamilton’s residence was an impermissible
                          search; and


                 II.      Whether exigent circumstances allowed officers to enter
                          Hamilton’s residence without a search warrant.6


[2]   We affirm.




      1
          See Ind. Code § 35-47-4-5(c).
      2
          See Ind. Code § 35-48-4-6.1(b)(2).
      3
          See Ind. Code § 35-44.1-2-5(a)(1)(A).
      4
          See Ind. Code § 35-48-4-11(a).
      5
          See Ind. Code § 35-48-4-8.3(b).
      6
       Hamilton contends that the officers’ actions also violated his rights under Article I, section 11 of the Indiana
      Constitution. While Hamilton provides an extended recitation of the relevant law under Article I, section 11,
      his actual arguments consist of only two sentences. Therefore, Hamilton has waived his claim under the
      Indiana Constitution for lack of cogent argument. See Jarman v. State, 114 N.E.3d 911, 915 n.2 (Ind. Ct. App.
      2018), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020                        Page 2 of 14
                                 Facts and Procedural History
[3]   On December 21, 2017, Sergeant David Durant (“Sergeant Durant”) and

      Deputy Robert Goodfellow (“Deputy Goodfellow”) (collectively, “the

      officers”) went to Hamilton’s residence in rural Decatur County to execute an

      arrest warrant for Jewel Johnson. Appellant’s App. Vol. 2 at 70. Deputy

      Goodfellow had received a tip that Johnson would be at Hamilton’s residence

      that day. Id.; Tr. Vol. 2 at 6, 8, 33, 35. The arrest warrant was for Level 2

      felony dealing in methamphetamine. Appellant’s App. Vol. 2 at 70; Tr. Vol. 2 at

      7. The officers also had two warrants for Johnson for violation of probation for

      her conviction for possession of methamphetamine in Jackson County.

      Appellant’s App. Vol. 2 at 70; Tr. Vol. 2 at 7.


[4]   When the officers arrived at Hamilton’s home, they noted that the house had

      only one level and had a wraparound porch that surrounded the entire home.

      Id. at 98-106. The front door was located on the deck area of the wraparound

      porch. Id. at 98, 106. There were other entryways around the house, and there

      were many large deck chairs sitting on at least two sides of the house. Id. at 99-

      105. The officers approached the front door by climbing the steps closest to the

      door. Tr. Vol. 2 at 23. Deputy Goodfellow remained on the wraparound porch

      by the front door, and Sergeant Durant walked on the wraparound porch to the

      west side of the house. Appellant’s App. Vol. 2 at 70. Sergeant Durant went to

      cover the west side of the house because “it’s common knowledge that firearms

      could be used” and to prevent escape from a different exit. Tr. Vol. 2 at 10.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 3 of 14
[5]   As Sergeant Durant looked through a window on the west side of the house, he

      observed Johnson in the kitchen. Appellant’s App. Vol. 2 at 70-71. She ran

      toward the front door, and Sergeant Durant radioed Deputy Goodfellow to

      alert him. Tr. Vol. 2 at 12. Deputy Goodfellow knocked on the door, Johnson

      answered the door, and Deputy Goodfellow identified himself. Id. at 33.

      Johnson ran toward the back of the house, and Sergeant Durant then saw

      Johnson run back into the bedroom and disappear into a bathroom. Id. at 33-

      34; Appellant’s App. Vol. 2 at 71. Sergeant Durant could see a pump shotgun tied

      with silk ties to the bed in the bedroom. Appellant’s App. Vol. 2 at 71; Tr. Vol. 2

      at 13. He knocked on the bedroom window where he had observed Hamilton

      and identified himself. Appellant’s App. Vol. 2 at 71. He instructed Hamilton to

      answer the front door. Tr. Vol. 2 at 14. Sergeant Durant then joined Deputy

      Goodfellow at the front of the house. Appellant’s App. Vol. 2 at 71; Tr. Vol. 2 at

      13.


[6]   Deputy Goodfellow continued to knock on the door, and Hamilton answered.

      Tr. Vol. 2 at 14, 34. Deputy Goodfellow identified himself and asked that

      Johnson come to the door. Id. at 34. Deputy Goodfellow explained that

      Johnson was wanted on several felony warrants. Appellant’s App. Vol. 2 at 71.

      Hamilton said that Johnson was not there. Tr. Vol. 2 at 14, 34. Deputy

      Goodfellow asked that Hamilton open the door, and Hamilton complied. Id.

      However, when both officers told Hamilton to have Johnson come to the door,

      Hamilton again denied that she was there. Id. Deputy Goodfellow informed

      Hamilton that he had seen Johnson, but Hamilton continued to deny she was

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 4 of 14
      there and said the officers could not come into the house without a warrant.

      Appellant’s App. Vol. 2 at 71; Tr. Vol. 2 at 34. Deputy Goodfellow then placed

      Hamilton under arrest for assisting a criminal. Id.


[7]   Once Hamilton was taken into custody, Sergeant Durant entered the house and

      went directly to the bedroom where Johnson was last seen. He found her hiding

      in a closet and arrested her. Id. at 15, 22. While in the home, Sergeant Durant

      observed narcotics and a glass pipe in plain view on a dresser in the bedroom.

      Appellant’s App. Vol. 2 at 71; Tr. Vol. 2 at 15, 22. The officers did a protective

      sweep of the house to ensure no one else was present and exited the home. Tr.

      Vol. 2 at 22.


[8]   Hamilton consented to a search of the house after being advised of his rights.

      Tr. Vol. 2 at 18; Appellant’s App. Vol. 2 at 71. The officers went back into the

      home and found controlled substances, including methamphetamine, digital

      scales, and paraphernalia. Appellant’s App. Vol. 2 at 71. The next day, Sergeant

      Durant applied for a search warrant after discovering that Hamilton had prior

      convictions that prevented him from having firearms. Id. On December 22,

      2017, the officers retrieved a .22 caliber single action revolver, a .12-gauge

      pump shotgun, .12-gauge shotgun shells, and .22 caliber bullets from

      Hamilton’s home. Id. at 72.


[9]   On December 27, 2017, Hamilton was charged with Count I, possession of a

      firearm by a serious violent felon, a Level 4 felony; Count II, possession of

      methamphetamine, a Level 5 felony; Count III, assisting a criminal, a Level 6


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 5 of 14
       felony; Count IV, maintaining a common nuisance, a Level 6 felony; Count V,

       possession of marijuana, a Class B misdemeanor; and Count VI, possession of

       paraphernalia, a Class C misdemeanor. Id. at 14-15.


[10]   On August 31, 2019, Hamilton filed a Motion to Suppress requesting that the

       court suppress “any and all evidence and fruits thereof gained as a result of the

       searched on [Hamilton’s] residence . . . on or about December 21, 2017 and

       December 22, 2017.” Id. at 33. The trial court held a hearing on the motion,

       and on January 25, 2019, it denied the motion. Id. at 58. On February 18,

       2019, Hamilton filed a Motion to Certify Order for Interlocutory Appeal, which

       the trial court granted on February 18, 2019. Appellant’s App. Vol. 2 at 60-62.

       On March 15, 2019, Hamilton filed a Motion to Accept Interlocutory Appeal

       with this court, and on April 22, 2019, we denied the motion. Id. at 63-66.


[11]   On November 18, 2019, Hamilton filed a written waiver of his right to a jury

       trial and asked to proceed to a bench trial. Id. at 67. The parties agreed to a

       written stipulation of facts in lieu of testimony; the stipulation preserved

       Hamilton’s objections to the admission of evidence that he had highlighted in

       his motion to suppress. Id. at 68. The bench trial occurred on November 25,

       2019. Id. The trial court found Hamilton guilty of unlawful possession of a

       firearm by a serious violent felon, possession of methamphetamine, assisting a

       criminal, possession of marijuana, and possession of paraphernalia. Appellant's

       App. Vol. 2 at 107. Count IV, maintaining a common nuisance, was dismissed

       per the State’s request. Tr. Vol. 2 at 66. On December 19, 2019, Hamilton was



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 6 of 14
       sentenced to an aggregate term of eight years. Appellant’s App. Vol. 2 at 108.

       Hamilton now appeals.


                                          Discussion and Decision
[12]   Because Hamilton appeals after the entry of a final judgment, we review the

       trial court’s evidentiary ruling for an abuse of discretion. See Grayson v. State, 52

       N.E.3d 24, 26 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion occurs

       only when the admission of evidence is clearly against the logic and effect of the

       facts and circumstances, and the error affects a party’s substantial rights. Clark

       v. State, 994 N.E.2d 252, 260 (Ind. 2013). We will not reweigh the evidence,

       and we resolve any conflicts in the evidence in favor of the trial court’s

       ruling. J.G. v. State, 93 N.E.3d 1112, 1119 (Ind. Ct. App. 2018), trans. denied.

       When the challenge to the trial court’s ruling is premised on a constitutional

       violation, the issue is reviewed de novo because it raises a question of

       law. Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017).7


           I. Sergeant Durant’s Visual Observations Were Not a Search
[13]   Hamilton argues that when Sergeant Durant walked to the west side of the

       house and looked through the window, he committed an impermissible

       warrantless search of Hamilton’s home. Hamilton acknowledges that if police



       7
         Because the stipulation of evidence preserved Hamilton’s objections to the admissibility of evidence, and
       because the trial court did not revisit its prior ruling as to admissibility of the evidence, we find that there was
       an implicit ruling by the trial court at the trial stage that the evidence was admissible. Therefore, we apply
       the standard of review used for reviewing evidentiary rulings in an appeal from a final judgment.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020                           Page 7 of 14
       use normal means of ingress or egress to access a building and see something

       from that vantage point, they have not conducted a search under the Fourth

       Amendment, thus obviating the need for a search warrant. See Divello v. State,

       782 N.E.2d 433, 437 (Ind. Ct. App. 2003), trans. denied. This is permissible,

       Hamilton admits, as long as police restrict their access to places that visitors

       would be expected to go, such as walkways, driveways, and porches. See id.

       Hamilton argues that when Sergeant Durant went to the side of the house and

       saw Johnson through a window, he went to an area that visitors would not be

       expected to go. In support, Hamilton claims that his front door was the only

       common means of access to his house and that there was no evidence that other

       entries to the house were used by visitors. Thus, he claims Sergeant Durant

       was not justified in walking to the west side of the house and looking into the

       home through a window. In Hamilton’s words:


               When [Sergeant] Durant left the front door and walked around to
               the rear of the house and began peering through a bedroom
               window, he was “no longer in a place where visitors could be
               expected to go.” See Divello v. State, 782 N.E.2d 433, 439 (Ind.
               Ct. App. 2003), trans. denied. This initial warrantless entry into
               the curtilage constituted an illegal search and any evidence
               observed from that location or further evidence derived from that
               initial search is inadmissible.


       Appellant’s Br. at 15.


[14]   Under the Fourth Amendment, warrantless searches and seizures inside a home

       are presumptively unreasonable. J.K. v. State, 8 N.E.3d 222, 229 (Ind. Ct. App.

       2014). For purposes of the Fourth Amendment, the curtilage, or the area

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 8 of 14
       immediately surrounding and associated with the home, is considered part of

       the home. Florida v. Jardines, 569 U.S. 1, 6 (2013). Thus, the “warrantless entry

       onto one’s curtilage is also presumptively unreasonable.” J.K., 8 N.E.3d at 229.

       The Fourth Amendment, however, does not protect “[w]hat a person

       knowingly exposes to the public, even in his own home or office.” Katz v.

       United States, 389 U.S. 347, 352 (1967). The route a visitor to a residence would

       use is not private under the Fourth Amendment, and if police take that route for

       the purpose of making a general inquiry or other legitimate reason, “they are

       free to keep their eyes open.” Id. In other words, “an individual does not have

       a reasonable expectation of privacy with regard to things or activities within a

       residence that may be observed by persons using their natural senses from

       places impliedly open to a visitor’s entry.” Divello, 782 N.E.2d at 437.

       Therefore, if police use normal means of ingress and egress to and from a home

       for a legitimate purpose, it is not a Fourth Amendment search for the police to

       see or hear or smell from that vantage point what is occurring inside the home.

       Id.


[15]   Here, we reject Hamilton’s contention that Sergeant Durant was not in a place

       where he had a right to be and, therefore, that his observations of the shotgun

       and Johnson’s furtive and frenetic behavior was an impermissible warrantless

       search under the Fourth Amendment. First, when Sergeant Durant and

       Deputy Goodman came to Hamilton’s home, they were there for a legitimate

       investigative purpose, i.e., serving an arrest warrant on Johnson. “[P]olice

       entry onto private property and their observations do not violate the Fourth


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 9 of 14
       Amendment when the police have a legitimate investigatory purpose for being

       on the property and limit their entry to places that other visitors would be

       expected to go, such as walkways, driveway, or porches.” Dora v. State, 957

       N.E.2d 1049, 1052-53 (Ind. Ct. App. 2011) (quoting Trimble, 842 N.E.2d at

       802), trans. denied. Investigation of a tip is legitimate police activity so long as

       the investigation does not violate the federal constitution. Divello, 782 N.E.2d

       at 437-38.


[16]   Furthermore, the west side of the house where Sergeant Durant situated himself

       was an area where visitors, and police, would be expected to go. Thus,

       Sergeant Durant’s visual observations through the window on the west side of

       the house were not a search, obviating the need for a search warrant. This was

       an area where people could be expected to go based on a variety of features of

       Hamilton’s property. There were two very wide sets of steps on each front

       corner of the property, and once a person had climbed those steps, the person

       would be on the wraparound porch and would be standing just a few feet from

       Hamilton’s front door. Appellant’s App. Vol. 2 at 99. The wraparound porch

       itself was very wide, allowing easy access around the house, and had large deck

       chairs on two, perhaps even three sides of Hamilton’s home, suggesting to a

       visitor that he or she had free access to all sides of the home. Id. at 99-100, 103,

       105-06. The existence of a back door, which provided a third point of entry in

       Hamilton’s home, also suggested that visitors could be expected to walk around

       all sides of the house. Id. at 106. Furthermore, the home appeared have a

       fourth access point in the form of a large, double-paned sliding glass door. Id.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 10 of 14
       at 104. Hamilton argues that because there were no signs directing visitors to

       enter his home through any access point other than the front door, visitors

       would not be expected to walk on all sides of the home. However, the lack of

       signs indicating that visitors could not walk around the house – and the

       aforementioned characteristics of the house – support the reasonable inference

       that visitors could reasonably be expected to walk around all sides of

       Hamilton’s home. Id. at 99-106.


[17]   Hamilton claims that visitors rarely, if ever, actually entered his home via any

       means of entry other than his front door. Thus, he claims that the west side of

       the house where Sergeant Durant looked through a window and saw Johnson

       was not a place where people could be expected to go, and, therefore, Sergeant

       Durant’s visual observations were an impermissible warrantless search.

       However, a place a person could reasonably be expected to go can be

       established by implication: “[A]n individual does not have a reasonable

       expectation of privacy with regard to things or activities within a residence that

       may be observed by persons using their natural senses from places impliedly

       open to a visitor’s entry.” Divello, 782 N.E.2d at 437 (emphasis added).

       Therefore, whether visitors actually entered Hamilton’s home through points of

       access other than the front door is immaterial. The question is whether the

       features of Hamilton’s home created an implication that visitors, and police

       officers such as Sergeant Durant, could be expected to walk around all sides of

       Hamilton’s home. We find that the evidence supports such an implication.

       Therefore, we reject Hamilton’s claims that Sergeant Durant’s visual


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 11 of 14
       observations in the home were an impermissible warrantless search and that all

       evidence seized subsequent to Sergeant Durant’s visual observations should be

       suppressed as fruits of an illegal, warrantless search.


                                                         II.

       Exigent Circumstances Allowed Entry into Hamilton’s Home
[18]   Hamilton argues that the exigent circumstances rule did not allow the officers

       to enter his home because: 1) the officers had no right to enter the curtilage of

       his home; and 2) any exigent circumstances that may have arisen, such as the

       risk that Johnson would flee, were created by the officers’ illegal entry onto his

       curtilage and Sergeant Durant’s illegal warrantless search of Hamilton’s home

       that occurred when Sergeant Durant looked through a window to see inside

       Hamilton’s home.


[19]   Under the exigent circumstances rule, a warrantless entry into a dwelling may

       be justified by hot pursuit of a fleeing felon, imminent destruction of

       evidence, the need to prevent a suspect’s escape, or the risk of danger to the

       police or to other persons inside or outside the dwelling. Minnesota v. Olson, 495

       U.S. 91, 100 (1990). The exigent circumstances rule justifies a warrantless

       search when the conduct of the police preceding the exigency is reasonable; that

       is, even if police behavior was the catalyst for the exigent circumstances, no

       warrant is required for the search as long as the police did not create the

       exigency by engaging in conduct that violates the Fourth Amendment.

       Kentucky v. King, 563 U.S. 452, 462 (2011).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 12 of 14
[20]   Here, the situation was ripe for exigent circumstances because Johnson posed a

       potential threat to the officers; she was wanted on serious drug charges and had

       two arrest warrants because of probation violations. Appellant’s App. Vol. 2 at

       70; Tr. Vol. 2 at 7. Given Johnson’s criminal history, Sergeant Durant

       understandably positioned himself on the west side of Hamilton’s house to

       thwart a potential escape by Johnson. Tr. Vol. 2 at 10. Actual exigent

       circumstances arose once Johnson realized that Sergeant Durant had seen her;

       she began to behave erratically, running to and fro in the house, coming near

       the shotgun in the bedroom, and eventually hiding in the closet. Appellant’s

       App. Vol. 2 at 71; Tr. Vol. 2 at 12-13, 18, 77. Before hiding in the bathroom,

       Johnson was in the bedroom with easy access to the shotgun that was tied to

       the bed. Appellant’s App. Vol. 2 at 71; Tr. Vol. 2 at 13, 33-34. Hamilton’s

       behavior also helped create exigent circumstances; he lied several times to the

       officers when he told them that Johnson was not in his home even though the

       officers knew otherwise. Appellant’s App. Vol. 2 at 71; Tr. Vol. 2 at 14, 34. These

       factors created exigent circumstances in at least two ways: 1) they may have

       prompted Johnson to flee; and 2) they created a risk of danger to the officers as

       well as Hamilton and Johnson. See Olson, 495 U.S. at 100.


[21]   Hamilton’s arguments that the officers’ conduct was not justified by exigent

       circumstances are unavailing. First, we can quickly reject Hamilton’s claim

       that the officers had no legal authority to enter Hamilton’s curtilage. In the

       previous section of this decision, we found that the officers did not violate




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020   Page 13 of 14
       Hamilton’s Fourth Amendment rights by entering his curtilage or by looking

       into his home through a window.


[22]   Second, even if the officers’ actions triggered the exigent circumstances, they

       did not do so by engaging in conduct that violated the Fourth Amendment. See

       King, 563 U.S. at 462. The officers had the right to station themselves at

       various places on the wraparound porch and look through Hamilton’s

       windows. See id; see also Dora, 957 N.E.2d at 1052-53. Therefore, even if the

       officers’ actions prompted the exigent circumstances, their actions were not

       grounds to suppress the evidence because they did not engage in conduct that

       violated or threatened to violate the Fourth Amendment. See King, 563 U.S. at

       462. In sum, the officers’ entry into Hamilton’s home was justified by exigent

       circumstances. 8


[23]   Affirmed. 9


       Najam, J., and Brown, J., concur.




       8
        Hamilton also argues that the consent he gave to the officers to search his house was not voluntary, arguing
       only that “the consent was a consequence of the prior illegal entry and thus cannot be considered voluntary.”
       Appellant’s Br. at 18. Because we have determined that the entry into Hamilton’s home did not violate his
       Fourth Amendment rights, this argument is without merit, and we need not address it at more length.
       9
        Hamilton also argues that because the arrest warrant was for Johnson, not himself, the arrest warrant did
       not authorize entry into his home. Because we have determined that the officers’ entry into Hamilton’s
       home was justified by the exigent circumstances rule, we need not address this issue.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-133 | June 22, 2020                    Page 14 of 14
