Carter v. State

• Decision Date: 28 June 2018
• Docket Number: Court of Appeals Case No. 17A–CR–3024
• Citation: 105 N.E.3d 1121
• Parties: Kevin Shawn CARTER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

105 N.E.3d 1121

Kevin Shawn CARTER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 17A–CR–3024

Court of Appeals of Indiana.

Filed June 28, 2018

Attorney for Appellant: Yvette M. LaPlante, Keating & LaPlante, LLP, Evansville, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] A jury convicted Kevin Shawn Carter ("Carter") of Dealing in a Narcotic Drug, as a Level 2 felony,¹ and Dealing in Methamphetamine, as a Level 2 felony.² Thereafter, Carter admitted to being a habitual offender.³ Carter now appeals.

[2] We affirm.

Issues

[3] Carter presents the following two restated issues:

I. Whether the trial court abused its discretion by admitting evidence obtained from a search of a cell phone because the underlying warrant was impermissibly general, allowing an exploratory search; and

II. Whether the trial court committed fundamental error by admitting testimony from an officer who opined that the amount of heroin seized was a dealer-level quantity.

Facts and Procedural History⁴

[4] After seeing a Ford Mustang cross the center line several times, Deputy Brandon Mattingly ("Deputy Mattingly") of the Vanderburgh County Sheriff's Department conducted a traffic stop. Deputy Mattingly approached the vehicle and observed the front passenger—Carter—making furtive movements and appearing to place an item under his seat. Deputy Mattingly then spoke with the driver, Tiffani Colschen ("Colschen"). At some point, Carter stated that he co-owned the vehicle, and both Colschen and Carter consented to a vehicle search. During the ensuing search, Deputy Mattingly found a bag between the front seats. Inside, there was a container holding a syringe and a spoon. Below the container there were several plastic bags that appeared to contain drugs; subsequent lab testing revealed that the bags contained, in the aggregate, approximately 205 grams of methamphetamine and approximately 27.5 grams of heroin. Carter and Colschen were arrested and their cell phones were confiscated. The police later obtained a warrant to search the cell phones.

[5] Carter was brought to trial on charges of Dealing in a Narcotic Drug and Dealing in Methamphetamine, both as Level 2 felonies. The State also alleged that Carter was a habitual offender. Before the trial began, Carter moved to suppress evidence obtained from the search of his cell phone; the trial court denied Carter's motion. At trial, Carter objected to the admission of cell phone evidence, and the court held a conference outside the presence of the jury. At the conference, the State tendered an exhibit containing several pages of text messages. The court determined that eight messages were admissible, and that, among the eight, any messages from third parties were admissible only to give context to Carter's messages. The State prepared a redacted exhibit containing the eight admissible text messages. See State's Ex. 23–1. Those messages—later admitted with a limiting instruction—indicated that Carter met with three individuals in the hours preceding the traffic stop, and had instructed one individual to pull around to the back, behind his Mustang, to avoid being seen.

[6] The State's evidence also included testimony from Detective James Budde ("Detective Budde"), who was assigned to the local drug task force and had encountered heroin and methamphetamine hundreds of times as a police officer. Detective Budde opined that the quantity of heroin seized was "typical of a dealer amount," to which Carter did not object. Tr. Vol. IV at 224.

[7] The jury found Carter guilty of the dealing counts, and Carter admitted to being a habitual offender. Following a sentencing hearing, the trial court imposed an aggregate sentence of thirty-six years in the Indiana Department of Correction.

[8] Carter now appeals.

Discussion and Decision

Cell Phone Records

[9] Carter frames his argument as a challenge to the denial of his motion to suppress evidence, but Carter did not seek interlocutory review of that denial. We therefore treat Carter's argument as a challenge to the admission of the evidence. See Carpenter v. State , 18 N.E.3d 998, 1001 (Ind. 2014). "The trial court has broad discretion to rule on the admissibility of evidence." Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). Ordinarily, we review evidentiary rulings for an abuse of discretion, evaluating whether the court's ruling was "clearly against the logic and effect of the facts and circumstances." Id. "However, when a challenge ... is predicated on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo ." Id.

[10] Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution proscribe unreasonable searches of "persons, houses, papers, and effects."⁵ Moreover, under the Fourth Amendment, "reasonableness generally requires the obtaining of a judicial warrant." Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

[11] There are a few "specifically established and well-delineated exceptions" to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Among those exceptions "is a search incident to a lawful arrest," Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), whereby the Fourth Amendment permits "a warrantless search of the arrestee's person and the area ‘within his immediate control,’ " Davis v. United States , 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (quoting Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ). Under this exception, officers generally may search the containers they encounter. See United States v. Robinson , 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (determining that the Fourth Amendment permitted a search of a package of cigarettes that was found during a search incident to arrest); cf. Garcia v. State , 47 N.E.3d 1196, 1205 (Ind. 2016) ("Under Article 1, Section 11, opening a container found on the person of an arrestee in the course of a search incident to [a]valid arrest will not automatically be deemed unreasonable.").

[12] However, as the United States Supreme Court noted in Riley v. California , "[a] search of the information on a cell phone bears little resemblance to the ... brief physical search" of a container found on an arrestee's person. ––– U.S. ––––, 134 S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). Namely, modern cell phones—as a "particular category of effects" subject to Fourth Amendment protection, id. at 2485 —"implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id. at 2488–89. "Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house." Id. at 2491 (emphasis removed). In view of these privacy concerns, the Riley Court concluded that "officers must generally secure a warrant" before searching a cell phone. Id. at 2485.

[13] Recently, the United States Supreme Court addressed similar privacy concerns in deciding Carpenter v. United States , No. 16-402, 585 U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507, 2018 WL 3073916 (June 22, 2018). There, law enforcement had obtained, without a warrant, location-related data from an individual's wireless carrier's cell-site record that the cell phone had logged "by dint of its operation." Id. at *12, ––––, 138 S.Ct. 2206. The Court rejected arguments that the information was rendered less private because it was part of business records or because, by using the phone, the individual had technically disclosed the location information to the wireless carrier. Id. at *11–12, –––– – ––––, 138 S.Ct. 2206. The Court reflected on the "unique nature of cell phone location records," id. at *9, ––––, 138 S.Ct. 2206, and ultimately concluded "that the Government must generally obtain a warrant supported by probable cause before acquiring such records," id. at * 13, ––––, 138 S.Ct. 2206.

[14] Here, unlike in Riley and Carpenter , the police secured a warrant before searching the cell phone data. Thus, we must look beyond these cases to resolve the issue Carter presents—which is whether the warrant was defective, rendering the evidence unconstitutionally obtained and, thereby, inadmissible.

Probable Cause

[15] As an initial matter, for a valid warrant to issue, the police must first set forth probable cause to conduct the search.⁶ U.S. Const. amend. IV ; Ind. Const. art. 1, § 11 ; I.C. §§ 35–33–5–2, –8 (codifying constitutional principles and establishing requirements for affidavits or other testimony in support of search warrants). Probable cause is a "fluid concept incapable of precise definition ... [and] is to be decided based on the facts of each case." Figert v. State , 686 N.E.2d 827, 830 (Ind. 1997). In determining whether a police affidavit sets forth probable cause "to issue a search warrant, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ " State v. Spillers , 847 N.E.2d 949, 952–53 (Ind. 2006) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ).⁷ Put differently, the central question in a probable cause determination is whether the affidavit presents facts, together with reasonable inferences, demonstrating a sufficient nexus between the suspected criminal activity and the specific place to be searched. See Eaton v. State , 889 N.E.2d 297, 300 (Ind. 2008) ; Figert , 686 N.E.2d at 830 (determining that a warrant to search a residence was not supported by probable cause where the underlying...