Hardister v. State

• Decision Date: 07 February 2005
• Docket Number: No. 49A05-0310-CR-535.,49A05-0310-CR-535.
• Parties: Albert HARDISTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

821 N.E.2d 912

Albert HARDISTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0310-CR-535.

Court of Appeals of Indiana.

February 7, 2005.

Rehearing Denied March 29, 2005.

Victoria Ursulskis, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Albert Hardister was found guilty by a jury of dealing in cocaine and possession of cocaine, both Class A felonies, possession of cocaine and a firearm, a Class C felony, unlawful possession of a firearm by a serious violent felon, a Class B felony, and obstruction of justice, a Class D felony. The trial court sentenced Hardister to an aggregate of sixty-eight years. Hardister now appeals his convictions and his sentence. We reverse.

Issues

Hardister raises five issues for our review. We find two issues dispositive and restate them as follows:

1. Whether the trial court properly admitted evidence seized from the warrantless search of the residence located at 407 North Hamilton Street; and

2. Whether the trial court properly denied Hardister's motion for judgment on the evidence.

Facts and Procedural History¹

On December 5, 2000, Indianapolis Police Officers Jack Tindall and Christopher Lawrence went to the residence located at 407 North Hamilton Street² pursuant to an anonymous report that someone was cooking drugs there. Officers Tindall and Lawrence did not have a search warrant when they arrived at the residence. The officers arrived after dark at approximately 8 p.m. Both officers went onto the front porch of the residence, and Officer Tindall knocked on the front door. After several seconds, the curtain of the window next to the front door was pulled aside and a face peered out. Officer Tindall later identified this person as Hardister due to his distinctive features.³ Officer Tindall announced that he was a police officer and shined his flashlight on his badge. Hardister's face moved away from the window and a second unidentified face peered out. The curtain was then replaced, and Officers Tindall and Lawrence heard running feet. Through the window curtain, they saw two silhouettes running towards the well-lit kitchen in the rear of the house. In order to prevent anyone from escaping out the back door, both officers ran to the rear of the residence by following a sidewalk located on the north side of the building.

When the officers arrived at the back of the house they found no one exiting the residence. Officer Lawrence then proceeded back to some windows located on the north side of the house. These windows were partially covered by newspaper. Officer Lawrence stepped off of the sidewalk and onto the ground below the windows to peer inside the house through an uncovered portion of one of the windows. He saw two to three men huddled together, but did not see any drugs.

Officer Tindall remained in the rear of the house. He followed the sidewalk to the back door of the residence that exited onto the back porch. To the left of the back porch was an uncovered window. In order to look into this window, Officer Tindall crossed over the back porch and stood on the ground below the window. When Officer Tindall looked into the window, he saw Hardister dumping a white, powdery substance down the kitchen sink drain.

Officers Tindall and Lawrence then heard a commotion in the front of the house. They both raced to the front of the building where they saw three individuals exiting the house onto the roof through a window on the second story. By this time other officers had arrived on the scene. Two of the individuals, Thomas Kendall and Kyle Kendall, obeyed police orders to stop and sat down on the roof. The third individual, Joshua Kendall,⁴ was the last person to come out of the window. As he emerged on the roof he dropped several packages of a white substance that appeared to be cocaine. Joshua Kendall attempted to flee by jumping to the roof of the neighboring building. As he did so, he dropped several more packages of cocaine. Recognizing that he had nowhere to go, Joshua Kendall then jumped back onto the roof of 407 North Hamilton Street, and dove back into the residence through the second story window he had exited.

At this point, officers obtained permission from the owners of 405 North Hamilton Street to enter their residence so that they could gain access to the roof of the building. When the officers made it to the roof, Thomas and Kyle Kendall were arrested. Two officers then entered the residence by going through the open second story window. Once inside, the officers discovered Fredrick Pace who was taken into custody. Officers later discovered Hardister and Joshua Kendall in the attic of the residence and both were arrested. At the time Hardister was arrested, no guns or drugs were found on his person.

Each of the five arrested individuals was then taken to the first floor of the residence where they were held until Detective Phillip Smiley arrived with a search warrant. When the police searched the house, they discovered over three hundred grams of cocaine. Cocaine was found in the basement, an upstairs bedroom, and in the kitchen. Cocaine that Joshua Kendall had dropped was also found on the roof of the building and directly in front of the building. Some of the cocaine had been packaged for sale. The police also found a scale. The police discovered a surveillance system consisting of a camera trained on the back door, a video monitor, and a yellow "warning light" that lit up whenever the doorbell was pushed. Two loaded guns with extra ammunition were found. One of the guns was in a cardboard box in the basement, while the second gun was concealed behind a couch in the living room. The police also found $1700 in a bathroom cabinet. Hardister was later charged with dealing in cocaine and possession of cocaine, both Class A felonies, possession of cocaine and a firearm, a Class C felony, unlawful possession of a firearm by a serious violent felon, a Class B felony, and obstruction of justice, a Class D felony.

Before trial, Hardister made a motion to suppress the evidence obtained from the warrantless search of the residence. The trial court initially considered whether Hardister had standing to make this motion. Hardister testified at a suppression hearing that 407 North Hamilton Street was his permanent residence on December 5, 2000. He stated that he, along with Joshua Kendall, had rented the house with the help of a Michael D. Dile. Dile apparently signed the lease for Hardister and Kendall, who in turn paid rent to Dile. The trial court found that Hardister had standing, but denied his motion to suppress. At trial, Hardister's counsel made a timely objection to the introduction of the evidence seized from the search.

Hardister was tried with his co-defendants Joshua Kendall and Thomas Kendall.⁵⁶ During the presentation of its case, the State failed to introduce any evidence that 407 North Hamilton Street was Hardister's permanent residence on December 5, 2000. After the State rested, Hardister moved for judgment on the evidence. The trial court rejected this motion. The jury later found Hardister guilty as to all counts. The trial court, after finding Hardister's extensive criminal history to be an aggravating factor, sentenced Hardister to an aggregate of sixty-eight years: fifty years for the dealing in cocaine conviction, eight years on the possession of cocaine and a firearm conviction, fifteen years for the possession of a firearm by a serious violent felon conviction, and three years for the obstruction of justice conviction. The court entered no conviction or sentence on the charge of possession of cocaine. The trial court determined that Hardister's sentences for dealing in cocaine, possession of a firearm by a serious violent felon, and obstruction of justice should run consecutively, while his possession of cocaine and a firearm conviction was to run concurrently with his dealing in cocaine conviction and possession of a firearm by a serious violent felon conviction. This appeal ensued.

Discussion and Decision

I. Admission of Evidence from Warrantless Police Search

Hardister first contends that the trial court erred in admitting the testimony of Officers Tindall and Lawrence regarding what each of the officers saw when they peered into the windows of the residence because the officers' actions constituted warrantless searches in violation of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. We agree.

A. Standard of Review

Hardister argues that the trial court erred in denying his motion to suppress any evidence obtained from the officers' warrantless search of the residence located at 407 North Hamilton Street on December 5, 2000. Hardister did not seek an interlocutory appeal after the denial of his motion to suppress, but instead proceeded to trial where he made a contemporaneous objection to the admission of the evidence obtained from the search. In this procedural posture, "the issue is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003).

A trial court has broad discretion in ruling on the admissibility of evidence. Id. We will only reverse a trial court's ruling on the admissibility of evidence when the trial court has abused its discretion. Id. A trial court abuses its discretion when it makes a decision "that is clearly against the logic and effect of the facts and circumstances before the court." Id.

B. Officers' View Through the Window

Hardister's principal contention is that the police violated the Fourth Amendment and Article I, Section 11 of the Indiana Constitution when they looked in the windows of the residence located at...