Fuqua v. State

• Decision Date: 27 March 2013
• Docket Number: No. 02A03–1207–CR–342.,02A03–1207–CR–342.
• Citation: 984 N.E.2d 709
• Parties: Terrence J. FUQUA, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

984 N.E.2d 709

Terrence J. FUQUA, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1207–CR–342.

Court of Appeals of Indiana.

March 27, 2013.

Anthony S. Churchward, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Kyle Hunter, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Terrence Fuqua (“Fuqua”) was convicted in Allen Superior Court of Class A felony dealing in cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony possession of a controlled substance, Class D felony dealing in marijuana, and Class A misdemeanor possession of paraphernalia. Fuqua challenges his convictions and raises two issues on appeal:

I. Whether law enforcement officers had reasonable suspicion to search Fuqua's trash; and,

II. Whether the warrant authorizing the search of Fuqua's residence was supported by probable cause.

We affirm.¹

Facts and Procedural History

In October 2011, Fort Wayne Detective Darrick Engelman (“Detective Engelman”) interviewed Stephanie McCarter and Donald Stovall, both of whom had been arrested in connection with a cocaine dealing investigation, first separately and then together. McCarter identified Fuqua and James Holman (a.k.a. “Petey”) as her cocaine dealers and told the detective where Fuqua lived. Stovall also stated that Fuqua was his cocaine dealer. Shortly thereafter, McCarter executed a controlled buy with Holman, who was arrested as a result of that transaction.

On November 7, 2011, another Fort Wayne Detective, Darin Strayer (“Detective Strayer”) received an anonymous phone tip, and the caller reported that she observed Fuqua with a large amount of cash at his residence and a hidden compartment for the money in the floor of the back bedroom. The anonymous tipster also stated that she observed an individual named Petey arrive at Fuqua's residence with a large amount of cocaine. Because Detective Engelman's desk is near Detective Strayer's, Detective Engelman overheard Detective Strayer's discussion concerningFuqua, and the two detectives shared their separately acquired knowledge of Fuqua's activities.

The next day, the detectives drove by Fuqua's residence to perform surveillance. Fuqua had placed his trash outside near his detached garage to be collected by a garbage service, and other residents in the neighborhood had done the same. Detective Engelman quickly collected two bags of Fuqua's trash, which the detectives looked through after they returned to their office. In Fuqua's trash they found crack pipes, three empty boxes of baking soda (which they knew to be useful in processing cocaine into crack cocaine), and several plastic baggies containing a white powdery substance that tested positive for cocaine.

The detectives continued to perform surveillance of Fuqua's residence and observed activities consistent with narcotics trafficking, such as vehicles arriving at the residence and leaving after just a few minutes and the possibility of pedestrian lookouts. During one such surveillance, the anonymous informant who spoke to Detective Strayer rode with the detectives ² and identified Fuqua's residence, Holman, and Holman's residence.

On November 22, 2011, Detective Strayer applied for and obtained a warrant to search Fuqua's residence. During execution of the warrant, law enforcement officers discovered significant amounts of cocaine, marijuana, scales, plastic baggies, large amounts of cash, paraphernalia and a firearm. Fuqua was charged with Class A felony dealing in cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony possession of a controlled substance, Class D felony dealing in marijuana, and Class A misdemeanor possession of paraphernalia.

Fuqua filed a motion to suppress all evidence seized during the execution of the search warrant arguing that the affidavit accompanying the warrant failed to state sufficient facts to establish probable cause and the trash search was not supported by reasonable suspicion. Fuqua's motion was denied, as was his request for certification of an interlocutory order for the purposes of appeal.

A bench trial was held on June 14, 2012, and the trial court found Fuqua guilty as charged. Fuqua was ordered to serve an aggregate forty-year sentence in the Department of Correction. Fuqua now appeals.

Standard of Review

Questions regarding the admission of evidence are left to the sound discretion of the trial court, and on appeal, we review the court's decision only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind.Ct.App.2009), trans. denied. The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. Our review of rulings on the admissibility of evidence is essentially the same regardless of whether the challenge is made through a pretrial motion to suppress or by an objection at trial. Jackson v. State, 890 N.E.2d 11, 15 (Ind.Ct.App.2008). We will not reweigh the evidence, and we consider conflicting evidence in a light most favorable to the trial court's ruling. Id. However, we also consider any undisputed evidence that is favorable to the defendant. Id. Additionally, we may consider foundational evidence introduced at trial in conjunction with any evidence from a suppression hearing that is not in direct conflict with the trial evidence.Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005).

I. Trash Search

Although the search and seizure provision found in Article I, Section 11 of the Indiana Constitution tracks the Fourth Amendment verbatim, our jurisprudence has focused on whether the actions of the government were “reasonable” under the “totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). In some cases, Article I, Section 11 confers greater protections to individual rights than the Fourth Amendment affords. Holder v. State, 847 N.E.2d 930, 940 (Ind.2006); Litchfield, 824 N.E.2d at 358–59. For this reason, in Litchfield, our supreme court held:

A search of trash recovered from the place where it is left for collection is permissible under the Indiana Constitution, but only if the investigating officials have an articulable basis justifying reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash.

824 N.E.2d at 357.

The court set out a two-part test for determining whether a trash search is reasonable. First, the “trash must be retrieved in substantially the same manner as the trash collector would take it.” Id. at 363. Second, the search must be based on an “articulable individualized suspicion that illegal activity is or has been taking place, essentially the same as is required for a ‘ Terry stop’ of an automobile.” Id. at 364. Fuqua does not contest the manner in which his trash was seized, but argues solely that the detectives lacked reasonable suspicion to search his trash.

The reasonable suspicion determination is reviewed de novo on appeal. Teague v. State, 891 N.E.2d 1121, 1128 (Ind.Ct.App.2008). Reasonable suspicion exists if the facts known to the officer and the reasonable inferences therefrom would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. State v. Lefevers, 844 N.E.2d 508, 515 (Ind.Ct.App.2006), trans. denied. “Although reasonable suspicion requires more than inchoate and unparticularized hunches, it is a less demanding standard than probable cause and requires considerably less proof than that required to establish wrongdoing by a preponderance of the evidence.” Id.;see also Washburn v. State, 868 N.E.2d 594, 598 (Ind.Ct.App.2007) (stating that reasonable suspicion requires at least a minimal level of objective justification and must be based on more than an inchoate and unparticularized suspicion or “hunch” of criminal activity), trans. denied. A determination of reasonable suspicion is made on a case-by-case basis by looking at the totality of the circumstances. Lefevers, 844 N.E.2d at 515.

Detectives Engelman and Strayer suspected that Fuqua was dealing cocaine after Detective Engelman interviewed McCarter and Stovall, who were arrested in connection with a cocaine dealing investigation, and after Detective Strayer received the anonymous tip about the drug activities of Holman and Fuqua. Fuqua argues that the informants' statements lacked credibility, and the informants' and anonymous tipster's statements were uncorroborated on the date of the trash pull. Ultimately, Fuqua claims that “it cannot be said that [the detectives] possessed any reasonable suspicion to justify” the trash pull. Appellant's Br. at 18.

Fuqua correctly observes that “an anonymous tip is not enough to support the reasonable suspicion necessary for a ‘ Terry ’ stop.” Wells v. State, 772 N.E.2d 487, 490 (Ind.Ct.App.2002) (citation omitted).Instead, “[a]nonymous tips must be accompanied by specific indicia of reliability or must be corroborated by a police officer's own observations to pass constitutional muster.” Id. Our courts have specifically concluded that an anonymous tip, by itself, without further corroboration, will not support a finding of reasonable suspicion to support a trash search. See, e.g., Sellmer v. State, 842 N.E.2d 358, 361 (Ind.2006); Richardson v. State, 848 N.E.2d 1097, 1103 (Ind.Ct.App.2006), trans. denied.

However, “a tip from an identified and known informant can provide reasonable suspicion of criminal activity to justify a Terry stop when there are sufficient indicia of reliability.” Membres v. State, 889 N.E.2d 265, 281 (Ind.2008).

The indicia of reliability for a tip can be established in a number of ways, including whether: (1) the informant has given correct...