87 N.E.3d 59 (Ind.App. 2017), 49A02-1606-CR-1447, Neville v. State

• Judge: Mathias, J., and Altice, J., concur.
• Citation: 87 N.E.3d 59
• Date: 25 July 2017
• Docket Number: 49A02-1606-CR-1447
• Parties: Kenneth Lee NEVILLE, Jr., Appellant-Defendant/Cross-Appellee, v. STATE of Indiana, Appellee-Plaintiff/Cross-Appellant.
• Court: Indiana Appellate Court

Page 59

87 N.E.3d 59 (Ind.App. 2017)

Kenneth Lee NEVILLE, Jr., Appellant-Defendant/Cross-Appellee,

v.

STATE of Indiana, Appellee-Plaintiff/Cross-Appellant.

No. 49A02-1606-CR-1447

Court of Appeals of Indiana

July 25, 2017

Unpublished Disposition

Editorial Note:

This disposition is referenced in the North Eastern Reporter.

Appeal from the Marion Superior Court, The Honorable James Kevin Snyder, Judge Pro Tempore, Trial Court Cause No. 49G20-1410-F3-49424

ATTORNEY FOR APPELLANT: Kimberly A. Jackson, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana.

MEMORANDUM DECISION

Kirsch, Judge.

[¶ 1] Following a jury trial, Kenneth Lee Neville, Jr. (" Neville" ) was convicted of Level 3 felony dealing in a narcotic drug,¹ Level 4 felony unlawful possession of a firearm by a serious violent felon,² Level 5 felony possession of a narcotic drug,³ and Class C misdemeanor operating a motor vehicle without ever receiving a license,^[4] and he was adjudicated to be a habitual offender.⁵ The trial court vacated Neville's convictions for unlawful possession of a firearm by a serious violent felon and for possession of a narcotic drug based on double jeopardy concerns. Neville appeals and raises the following two restated issues: I. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop of a vehicle Neville was driving without a license; and

II. Whether the State presented sufficient evidence to convict him of dealing in a narcotic drug.

The State cross-appeals and raises the following restated issue: III. Whether the trial court erred when it vacated Neville's conviction for unlawful possession of a firearm by a serious violent felon.

[¶ 2] We affirm.

Facts and Procedural History

[¶ 3] Around 7:30 p.m. on October 23, 2014, Indianapolis Metropolitan Police Department Detective Sergeant Brady Ball (" Detective Ball" ) was seated in his marked police vehicle, surveilling a home associated with an individual named Joey Milton (" Milton" ), who was a person of interest in a homicide investigation. Detective Ball was parked several blocks away from the home and observed the home through binoculars. Detective Ball saw two men who generally fit Milton's physical description, along with a female and three children, get into a car parked in the driveway at the residence and drive away. Detective Ball followed the vehicle.

[¶ 4] Detective Ball attempted to check the license plate of the vehicle, a Lincoln, but there was a tinted cover over the paper license plate, and he could not see the expiration date or some of the letters or numbers on the license plate due to the tinting and because it was nighttime and headlights bounced off the plate. At some point, Detective Ball's car was stopped behind the Lincoln at an intersection, and he attempted to run a computer search on what he thought were the letters and numbers on the Lincoln's license plate but found that he did not have the correct letters and numbers in his search. Because the license plate was not visible, Detective Ball initiated a traffic stop of the Lincoln, which pulled into a gas station, and Detective Ball pulled in behind it. Detective Ball exited his vehicle and when he was about five or six feet from the Lincoln, he could see the license plate and he radioed it to dispatch. He then walked to the Lincoln and made contact with the driver, Neville, and noted to Neville and the occupants that he stopped the Lincoln because it had a tinted cover on the license plate, making it not visible. In the front passenger seat was Neville's girlfriend, Amanda Lee (" Lee" ), and in the back seat was Milton, who is Neville's brother. Three minor children were also in the car.

[¶ 5] Detective Ball asked Neville for his driver's license, and Neville responded that he did not have one and had never applied for one, but he provided Detective Ball with an identification card. Detective Ball learned that Lee and Milton also did not possess a driver's license. Neville and Lee told Detective Ball that the car belonged to Lee. Lee explained that she had purchased the car recently and that it had come from the dealer with the tinted plate cover. Detective Ball asked Neville to step out of the vehicle. Detective Ball showed Neville the tinted plate cover, and at Detective Ball's instruction, Neville sat on the back bumper of the Lincoln as Detective Neville returned to his police vehicle.

[¶ 6] Detective Ball conducted a search on the information he had received and confirmed that Neville never had a license and that Milton was the person that the Violent Crimes Unit was investigating for a homicide. Detective Ball confirmed that the license plate belonged to a vehicle owned by Lee and was registered to her at the address Detective Ball had been surveilling. Detective Ball asked for backup officers.

[¶ 7] After backup officers arrived, Detective Ball handcuffed Neville's hands behind his back.⁶ In the process of removing items from Neville's pockets, Detective Ball felt the exterior of Neville's pants in the pockets and crotch area, and he detected lumps that Detective Ball believed to be " dope." Tr. Vol. III at 703; State's Ex . 2 at 16:03. After advising Neville that he was going to retrieve the lumps that he had felt, Detective Ball reached down the front of Neville's pants and pulled from under his scrotum area and in his underwear a package of what he at that time believed to be a package of cocaine and a package of heroin. During this time, Neville protested that Detective Ball was in his pants, and stated that he felt violated and that Detective Ball was violating his constitutional rights. Neville suggested that Detective Ball had no authority to search him and asked repeatedly why it was necessary for Detective Ball to touch him, stating, " You stopped me for driving." Detective Ball replied, " I did, and I'm arresting you for driving." State's Ex . 2 at 18:36.

[¶ 8] Detective Ball placed the narcotics on the trunk of the Lincoln, and he then looked inside the vehicle and popped open an armrest on the driver's side door and found a loaded handgun. Neville told Detective Ball that it was not his car, and he did not know the gun was there. Detective Ball told Neville, " You're going to jail," read him his Miranda rights, and told Neville that he was under arrest. Id . at 23:33-24:47. Neville's wallet contained $1,243 in cash. Police seized the cash and towed the vehicle.

[¶ 9] In October 2014, the State charged Neville with Count I, dealing in a narcotic drug while in possession of a firearm, a Level 3 felony; Count II, unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count III, possession of a narcotic drug and a firearm, a Level 5 felony; and Count IV, operating a motor vehicle without ever receiving a license, a Class C misdemeanor. In March 2016, the State added a habitual offender count.

[¶ 10] In March 2016, Neville filed a Motion to Suppress— Traffic Stop (" Motion to Suppress" ), alleging that the traffic stop violated his rights under the Fourth Amendment and Article I, Section 11 of the Indiana Constitution.⁷ Neville contended that the search of his person and the vehicle were not valid because (1) the stop was not valid, and (2) he was not arrested until after the searches, so the searches were not incident to his arrest.

[¶ 11] At a hearing on the Motion to Suppress, Detective Ball acknowledged that the traffic stop was " pretextual" and was related to the residence, as he had been surveilling the home and watched the two men get in the vehicle and leave. Tr . Vol. III . at 689. He also testified that the license plate had a tinted cover, it was dark outside, and he could not read the license plate until he was out of his vehicle and standing five or six feet from it at the gas station. He testified that Neville was driving the car, that he did not have, and had never had, a driver's license, and that no adult in the car had a driver's license. Detective Ball testified that after getting Neville's identification, he returned to his police car and called dispatch with the information. He stated that he decided to arrest Neville for operating a motor vehicle without a license, and he requested back up assistance.

[¶ 12] During Detective Ball's testimony at the hearing, the State presented an audio recording of the traffic stop, taken by Detective Ball (the Audio Recording" ). State's Ex . 2. When the assisting officers arrived, Detective Ball can be heard telling them that Neville was " arrestable" and that he intended to " hook him up," meaning arrest him, to gain access to the car. State's Ex. 2 at 14:39-42; Tr. Vol. III at 743. Detective Ball can be heard instructing Neville to face the Lincoln and place his hands on the truck, and handcuffing sounds are audible. Detective Ball stated that he felt lumps, not part of Neville's body, and he advised Neville that he was going to retrieve what he felt. The tape reveals Neville's repeated protests of Detective Ball's search of him and Detective Ball's responses. Later, Detective Ball told Lee that her car was going to be towed, and Lee stated that she did not know about the drugs or the handgun and that they did not belong to her.

[¶ 13] Detective Ball testified that, in searching Neville, he reached down the front of Neville's pants, not the back of Neville's pants as Neville alleged, and he retrieved the bag of what he believed to be narcotics and placed them on the trunk of the Lincoln. He then looked in the Lincoln and found inside the driver's side door armrest a handgun. He...