Brown v. State, 11A04-0904-CR-213.

Citation913 N.E.2d 1253
Decision Date30 September 2009
Docket NumberNo. 11A04-0904-CR-213.,11A04-0904-CR-213.
PartiesKenneth BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Kenneth Brown appeals his convictions, following a jury trial, of possession with intent to deliver methamphetamine, a Class B felony; possession of a controlled substance, a Class C felony; possession of paraphernalia, a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor. Brown raises one issue for our review, which we expand and restate as two: 1) whether the trial court properly concluded the police officers' knock and talk investigation at Brown's residence did not violate the Fourth Amendment to the United States Constitution or Article 1, section 11 of the Indiana Constitution; and 2) whether the trial court properly admitted into evidence drugs and paraphernalia found during the officers' search of Brown's residence. Concluding the officers' conduct was reasonable and the trial court properly admitted the evidence, we affirm.

Facts and Procedural History

Around midnight on July 8, 2005, Mark Green was arrested on a federal firearms warrant by officers of the Linton, Indiana Police Department and found in possession of methamphetamine. Linton police had been investigating Green for methamphetamine possession based on an anonymous tip that Green obtained methamphetamine from Brown.

In the hours following Green's arrest, Linton Police Department officers Debbie McDonald, Joshua Goodman, and Paul Clark decided to investigate Brown's residence in Coalmont, Indiana. Officer McDonald met with Clay County Sheriff's Deputy Jerry Siddons; they discussed the Mark Green arrest and Deputy Siddons agreed to participate in a "stop and knock" at Brown's residence. Transcript at 5. The four officers, driving in three separate police cars, arrived at Brown's home around 2:35 a.m. on July 8. The officers lacked probable cause for a search warrant or for Brown's arrest.

All four officers walked to Brown's front door; the lights were on, and the officers could hear the television. Officer Clark knocked on the door three times and "announced [the officers'] presence." Appellant's Appendix at 24. Brown, who testified the knocking woke him from sleep and sounded like someone trying to kick in the door, answered. Brown was the only person home at the time. Officer Clark explained to Brown that Mark Green had been arrested that night and the officers suspected Green had been at Brown's home to purchase methamphetamine. Officer Clark told Brown the officers "wanted to search [Brown's] residence for contraband or methamphetamine." Tr. at 38.

Officer Clark asked Brown for permission to search the home, and Brown "said yes but only one [officer] can come in." Id. Officer Clark asked Brown to keep the front door open for officer safety, and Brown agreed and "stood in the doorway to prevent the rest of us from coming in but allowed Officer Clark to go in and search." Id. at 25. At no time did Brown, who is hearing impaired and normally wears a hearing aid, indicate he did not understand what Officer Clark was saying. The officers did not obtain Brown's written consent to search and they did not advise Brown of his right to refuse their entry or search. The officers testified that if Brown had not consented for Officer Clark to enter and search they would have left Brown's residence.

Upon entering, Officer Clark conducted a sweep of the home and began searching the living room. His search uncovered plastic baggies with methamphetamine residue; glass pipes with methamphetamine residue; an unmarked prescription bottle containing twenty-four Darvocet pills; a set of scales; marijuana; a bong and homemade pipes for smoking marijuana; and other drug paraphernalia. After field testing on these items was positive for drugs, the officers arrested Brown and performed a pat-down search of him, finding in his pocket a plastic bag with drug residue and $1,300 cash folded in $100 increments. The other officers searched the other rooms, finding more plastic baggies with methamphetamine residue, more marijuana, and more paraphernalia.

On July 8, 2005, the State charged Brown with possession with intent to deliver methamphetamine, a Class B felony; possession of a controlled substance, a Class C felony; possession of paraphernalia, a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor. Brown filed a pretrial motion to suppress the drugs and paraphernalia, arguing the officers' knock and talk investigation and subsequent search of his residence violated the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution. Following a hearing, the trial court denied the motion.

At trial, Brown did not make any contemporaneous objections to admission of the drugs and paraphernalia. However, after all exhibits were admitted, defense counsel referred to Brown's motion to suppress and stated, "it's my understanding the court was going to overrule objections that we would make concerning the admissibility of evidence . . . Just to make sure that the record is clear and to preserve the record for Mr. Brown's benefit, we would restate those objections that we previously wrote in our motion to suppress. . . ." Tr. at 160. The trial court stated, "I make no representation myself about how you've done this. But it will be noted in the record." Id. at 161.

On December 17, 2008, the jury found Brown guilty as charged, and the trial court entered a judgment of conviction on all counts. On January 14, 2009, the trial court sentenced Brown to a total of ten years at the Department of Correction with four years suspended. Brown now appeals.

Discussion and Decision
I. Standard of Review

Generally, we review a trial court's ruling on the admissibility of evidence for abuse of discretion, Smith v. State, 889 N.E.2d 836, 839 (Ind.Ct.App.2008), but the State argues Brown waived his challenge to the admissibility of evidence by failing to timely object when the drugs and paraphernalia were admitted at trial. "When the trial court denies a motion to suppress evidence . . ., the [defendant] must renew his objection to admission of the evidence at trial. If the [defendant] does not object to the evidence at trial, then any error is waived." Wright v. State, 593 N.E.2d 1192, 1194 (Ind.1992) (citation omitted), cert. denied, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992), abrogated in part on other grounds, Fajardo v. State, 859 N.E.2d 1201, 1206 (Ind.2007). Brown acknowledges he did not timely object to the admission of the drugs and paraphernalia at trial but argues he preserved the issue for appeal by referring the trial court to his motion to suppress. In Hayworth v. State, 904 N.E.2d 684 (Ind.Ct.App.2009), we concluded a defendant waived his challenges to the admissibility of evidence when the defendant's counsel, having attempted to lodge a continuing objection to evidence ruled admissible at a suppression hearing, stated "no objection" when the same evidence was admitted at trial. Id. at 686. Though disapproving that procedure, we addressed Hayworth's appeal on the merits because Hayworth invoked the fundamental error doctrine. Id.

As in Hayworth, Brown has waived his challenge to the admissibility of evidence, but we address the merits notwithstanding waiver because Brown invokes the fundamental error doctrine, arguing that admission of the drugs and paraphernalia was fundamental error. To rise to the level of fundamental error, an error "must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Maul v. State, 731 N.E.2d 438, 440 (Ind.2000) (internal quotation and citation omitted). "The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible." Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001).

II. Knock and Talk Investigation

Brown first argues the trial court erred in admitting the drugs and paraphernalia because they were the fruit of an unlawful knock and talk investigation.1 "A knock and talk investigation involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house." Hayes v. State, 794 N.E.2d 492, 496 (Ind.Ct.App. 2003) (internal quotation and citation omitted), trans. denied. Brown contends the officers' knock and talk investigation in this case violated his rights under both the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution.

A. Fourth Amendment

The knock and talk procedure "does not per se violate the Fourth Amendment." Id. at 498. Neither probable cause nor reasonable suspicion is constitutionally prerequisite for a knock and talk investigation, and suspicion based on an anonymous tip is a proper basis for officers to enter the curtilage of private property and make inquiries of the occupants. Hardister v. State, 849 N.E.2d 563, 570 (Ind.2006). We therefore reject Brown's argument that the officers' entry onto his property was unlawful because the officers knocked on his front door lacking a search warrant or probable cause to arrest or search or because their decision to investigate was based on an uncorroborated anonymous tip. See id. at 568-69 ("no Fourth Amendment interest implicated" when officers, investigating anonymous tip of drug activity, knocked on house door).

The knock and talk procedure does, however, implicate the Fourth Amendment...

To continue reading

Request your trial
3 cases
  • Brown v. State Of Ind.
    • United States
    • Supreme Court of Indiana
    • September 27, 2010
  • Hill v. State Of Ind.
    • United States
    • Court of Appeals of Indiana
    • December 15, 2010
    ......State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009). To rise to the level of fundamental error, an error "must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Brown v. State, 913 N.E.2d 1253, 1258 (Ind. Ct. App. 2009). "The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible." Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001).Page 11        Article 1, section 19 of ......
  • Brown v. State
    • United States
    • Supreme Court of Indiana
    • November 24, 2009

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT