Govan v. State

• Decision Date: 25 January 2019
• Docket Number: Court of Appeals Case No. 18A-CR-708
• Citation: 116 N.E.3d 1165
• Parties: Morgan K. GOVAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

116 N.E.3d 1165

Morgan K. GOVAN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-708

Court of Appeals of Indiana.

FILED January 25, 2019

Attorney for Appellant: Stanley L. Campbell, Fort Wayne, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana

Barteau, Senior Judge.

Statement of the Case

[1] Morgan K. Govan appeals his conviction of possession of cocaine or narcotic drug, a Level 4 felony;¹ and the trial court's determination that he is an habitual offender.² Govan also appeals his sentence. We affirm.

Issues

[2] Govan raises three issues, which we restate as:

I. Whether the trial court erred in admitting into evidence the heroin that officers found on Govan after his arrest.

II. Whether the trial court abused its discretion during sentencing.

III. Whether Govan's sentence is inappropriate in light of the nature of the offenses and the character of the offender.

Facts and Procedural History

[3] On August 29, 2016, Detective Chris Crapser of the Fort Wayne Police Department was dispatched to a hospital to interview Stacey Cook. He noted that Cook had several serious injuries. Cook told the detective that Govan had driven her to his house at 2244 Chestnut Street in Fort Wayne, where he had tied her up and struck her repeatedly with his fists, his feet, and a hammer. She further told Detective Crapser that Govan had said that he was going to kill her. Cook explained that another woman had also been in the house. According to Cook, Govan had also beaten the other woman, but she escaped. Cook's mother, Pamela Cook, gave Govan's cellular phone number to the detective. Govan had attempted to contact Cook or Pamela through Facebook while Cook was still in the hospital.

[4] Detective Crapser next learned the second victim's name was Destinee Prater. A woman claiming to be Prater's grandmother had called 911 on August 29, 2016, to report that Prater was being held against her will at 2244 Chestnut Street. That afternoon, officers were dispatched to that address to investigate the report. The officers were told a woman might be restrained and injured at that location. They determined that one of the house's windows was broken, apparently from the inside.

The officers shouted into the window and knocked on the front door, but no one responded. They entered the residence and searched. No one was present, but the officers found a pool of what appeared to be blood in the basement, along with electrical cords that appeared to have been used to tie someone up.

[5] Meanwhile, Detective Crapser had asked Detective Matthew Foote to assist him with the investigation. After talking with Detective Crapser about the case, Detective Foote worked with Detective David Wilkins to prepare a search warrant affidavit for real-time data on the location of Govan's cellular phone. The detectives faxed the affidavit and related documents to Sprint, which was Govan's cellular phone service provider, on August 29, 2016, at 8:27 p.m. The detectives asked Sprint for an "emergency or exigent ping," or approximate fix on the current location of Govan's phone. Tr. Vol. 2, p. 65. A Sprint employee reviewed the warrant and sent the requested information to Detective Foote.

[6] Based on the cellular phone "pings" and other information identifying Govan's truck, Detective Foote and several other officers found Govan on August 29, 2016, at 10:15 p.m. at a motel in Fort Wayne. They approached Govan as he sat in his truck, ordered him out of the truck, and took him into custody. Detective Foote searched Govan after his arrest and found a clear plastic baggie in his pants pocket. The baggie contained a powdery substance. Field testing showed a positive result for the presence of heroin, a controlled substance. Subsequent testing revealed the heroin weighed 13.32 grams.

[7] Later that evening, Detective Crapser questioned Prater at the hospital after talking with her by phone. She was also badly injured, showing signs of having been beaten.

[8] On September 2, 2016, officers filed a search warrant affidavit with the trial court. The warrant was the same document that the detectives had submitted to Sprint on August 29, 2016. The court determined there was probable cause to believe that real-time tracking of Govan's cellular phone would obtain information that was "relevant and material to an ongoing criminal investigation." Tr. Ex. Vol., Trial Exhibits, Defendant's Ex. C.

[9] The State charged Govan with two counts of criminal confinement, both Level 3 felonies, one for Cook and one for Prater; one count of possession of cocaine or narcotic drug, a Level 4 felony; one count of kidnapping, a Level 5 felony, for Cook; two counts of battery, both Level 5 felonies, one for Cook and another for Prater; and intimidation, a Level 6 felony, for Cook. The State further alleged that Govan was an habitual offender. Later, during plea agreement negotiations, the State added two counts of criminal confinement, both Level 6 felonies,³ one for Cook and one for Prater.

[10] Govan filed a motion to suppress evidence but later withdrew it. He then refiled the motion to suppress, along with a motion to dismiss. The trial court denied his motions after a hearing. Govan asked the court to certify its ruling for discretionary interlocutory review, but the court denied his request.

[11] Next, Govan and the State negotiated a partial plea agreement. Govan agreed to plead guilty to two counts of confinement, both Level 6 felonies, for his acts involving Cook and Prater. The parties agreed Govan would receive a sentence of two years and 183 days on one count of confinement and two years on the other count, to be served consecutively. Govan explicitly retained his right to be tried on the charge of possession of cocaine or narcotic drug and the habitual offender enhancement. The State agreed to dismiss the other charges.

[12] Govan waived his right to a jury trial on the possession charge and the sentencing enhancement. A bench trial was held, and the trial court determined Govan was guilty of possession of cocaine or narcotic drug as a Level 4 felony and was an habitual offender.

[13] At sentencing, the court followed the parties' partial plea agreement and imposed two years and 183 days on one count of confinement, and two years on the second count. The court further sentenced Govan to six years for the charge of possession of cocaine or narcotic drug, enhanced by twenty years for the habitual offender sentencing enhancement, for a total of twenty-six years. The court ordered Govan to serve the sentences for the three felony convictions consecutively, resulting in an aggregate sentence of thirty years and 183 days. This appeal followed.

Discussion and Decision

I. Admission of Evidence – Heroin

[14] Govan claims the trial court should not have admitted into evidence the heroin that Detective Foote found on him after his arrest. Govan frames the issue as whether the court should have granted his motion to suppress. Because the case proceeded to trial, his claim is more appropriately considered as a request to review the court's admission of the evidence at trial. Guilmette v. State , 14 N.E.3d 38, 40 (Ind. 2014).

[15] The admission of evidence at trial is a matter left to the discretion of the court. Nicholson v. State , 963 N.E.2d 1096, 1099 (Ind. 2012). We review the court's decision for abuse of that discretion and reverse only if admission is clearly against the logic and effect of the facts and circumstances, and the error affects a party's substantial rights. Id. We consider any conflicting evidence in favor of the court's ruling, and we also consider any uncontested evidence favorable to the defendant. Lindsey v. State , 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied . We employ a de novo standard when reviewing the court's ultimate determinations of probable cause and other constitutional claims. Id.

[16] Govan argues the trial court should not have admitted the heroin into evidence because the police violated his federal and state constitutional protections against unreasonable search and seizure by: (1) asking Govan's cellular phone service provider to provide real-time location data for his phone; and (2) arresting Govan, allegedly without probable cause. We address each issue in turn.

A. "Pinging" Govan's Cellular Phone

[17] Govan argues the police lacked sufficient grounds to ask his cellular phone service provider to provide "pings" that revealed the location of his cellular phone in real time. He further contends the police failed to comply with the requirements of the governing statute. Finally, Govan concludes these errors violated his state and federal constitutional rights. With respect to the Indiana Constitution, Govan fails to provide a separate, cogent analysis, citing only one case on this claim without elaboration. Appellant's Brief, p. 28. We deem the Indiana constitutional claim waived on this point and focus on his federal constitutional claim. See Myers v. State , 839 N.E.2d 1154, 1158 (Ind. 2005) (choosing not to address Indiana constitutional claim; appellant failed to present an argument separate from his federal constitutional claim).

[18] The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[19] The Fourth Amendment protects against government intrusions into areas and items for which people have a reasonable "expectation of privacy." Carpenter v. U.S. , ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018). An official intrusion into such private areas generally qualifies as a search and requires a warrant supported by...