Krise v. State, 16A05-9809-CR-460.

CourtCourt of Appeals of Indiana
Citation718 N.E.2d 1136
Docket NumberNo. 16A05-9809-CR-460.,16A05-9809-CR-460.
PartiesJewell K. KRISE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Decision Date29 October 1999

John H. Watson, Sunman, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James A. Garrard, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Jewell K. Krise ("Krise") appeals her conviction, after a jury trial, of Possession of a Schedule II Controlled Substance Within 1,000 feet of a Public Park, a class C felony.1 We affirm.

Issues

Krise raises several issues on review which we consolidate and restate as follows:

I. Whether certain drug evidence should have been suppressed as the product of an illegal search and seizure.
II. Whether the State's alleged misconduct in questioning a police officer amounted to an evidentiary harpoon.
III. Whether the evidence is sufficient to sustain Krise's conviction of Possession of a Schedule II Controlled Substance Within 1,000 feet of a Public Park.
Facts

The facts most favorable to the judgment show that on the morning of May 5, 1997, Indiana State Trooper Howard Ayres ("Trooper Ayres") and Decatur County Deputy Sheriff Michael Woodhull ("Officer Woodhull") went to Krise's home to serve a civil writ of body attachment which had been issued by the Shelby Superior Court. (R. 9, 313, 548, 573). The officers did not have the writ with them when they arrived at Krise's home. (R. 578, 579). Rather, they carried a cover letter, which had been sent in February 1997 from the Shelby County Sheriff to the Decatur County Sheriff. (R. 316, 578, 579). A notation on the cover letter stated, "Please return if not able to locate within 60 days." (R. 316, 579).

When the officers advised Krise of the reason for their visit, Krise became very upset and informed the officers that the writ of body attachment had already been executed and that she had consequently completed jail time as a result. (R. 550, 575). Krise permitted the officers to enter her house, where further discussion ensued regarding the validity of the writ. (R. 550). Charles Tungate ("Tungate"), Krise's housemate, thereafter entered the room and confirmed Krise's assertion that the writ had already been served. (R. 551, 575, 583). While Krise and Trooper Ayres remained inside the house, Officer Woodhull accompanied Tungate outdoors so that Tungate could check his vehicle for paperwork showing that the writ had been satisfied. (R. 551-52). At some point, Officer Woodhull contacted his dispatcher in an attempt to verify that the writ was still valid and was informed that the writ remained active. (R. 576).

While Tungate and Officer Woodhull were outside, Trooper Ayres noticed a pipe sitting on the base of a lamp in the house's living room. (R. 553). Trooper Ayres picked up the pipe when he detected the scent of burnt marijuana. (R. 9, 553, 565). When he asked Krise about the pipe, she responded that the pipe was not hers and that she did not know anything about it. (R. 554-55, 567). Tungate and Officer Woodhull eventually returned to the residence, and Trooper Ayres questioned Tungate about the pipe. (R. 555). Tungate became angry and ordered the officers to leave the residence. (R. 555). Trooper Ayres thereafter requested Tungate's consent to search the home. (R. 556, 566). In the meantime, Krise was transported by another officer to the Decatur County Jail, where the officer learned that the writ of body attachment was no longer valid. (R. 9, 560, 576).

After initially refusing to grant consent, Tungate eventually agreed to the search. (R. 9, 557-58, 565-66). Although Tungate refused to sign a consent form, Indiana State Trooper Robert Ewing ("Trooper Ewing") tape-recorded himself reading the consent form to Tungate along with Tungate's oral consent. (R. 9, 598-99). After consenting to the search, Tungate did not limit or restrict its scope in any way. (R. 599-600, 617).

While Trooper Ewing was tape-recording Tungate's consent, Decatur County Deputy Sheriff Richard Underhill ("Officer Underhill") arrived to assist in searching the residence. (R. 617, 618). While searching the bathroom, Officer Underhill noticed a purse on top of the commode. (R. 618). The officer opened the purse and found, among other things, a closed container resembling a cigarette case. (R. 621). Inside the container were two small plastic bags, one containing marijuana and the other containing a white powdery substance later identified as methamphetamine. (R. 9, 29, 271, 274, 276-77, 647). Officer Underhill also found Krise's driver's license inside the purse. (R. 9, 620).

Krise was eventually charged with Possession of a Schedule II Controlled Substance Within 1,000 feet of a Public Park, a class C felony. (R. 8). Krise filed a pre-trial motion to suppress all evidence obtained during the search of her residence. (R. 4, 43-44). The trial court denied the motion to suppress and overruled Krise's contemporaneous objection during trial. (R. 4, 79, 619). After a jury trial, Krise was convicted as charged. (R. 5, 161). This appeal ensued.

Discussion and Decision
I. Motion to Suppress

Krise contends that the trial court erred in denying her motion to suppress all evidence recovered during the search of her residence. According to Krise, the evidence should have been suppressed because (1) the officers' initial entry into the home to serve a stale writ of body attachment was illegal; (2) Tungate did not voluntarily consent to the search of the residence; and (3) even assuming Tungate's consent was voluntary, the scope of the consent did not extend to the contents of Krise's purse.

A. Standard of Review

The trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of abuse of discretion. Smoote v. State, 708 N.E.2d 1, 3 (Ind. 1999); Carter v. State, 692 N.E.2d 464, 465 (Ind.Ct.App.1997). Additionally, a trial court's decision to deny a motion to suppress is reviewed as a matter of sufficiency. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). Consequently, we neither reweigh the evidence nor judge the credibility of witnesses. Id.; Carter, 692 N.E.2d at 465

.

Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Sweeney v. State, 704 N.E.2d 86, 107 (Ind.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2393, ___ L.Ed.2d ___ (1999). In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement. Id.; State v. Joe, 693 N.E.2d 573, 575 (Ind.Ct.App.1998), trans. denied. A valid consent to search is one exception to the warrant requirement. Sweeney, 704 N.E.2d at 107; Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App.1999). The theory underlying this exception is that, when an individual gives the State permission to search either his person or property, the governmental intrusion is presumably reasonable. Melton, 705 N.E.2d at 566.

B. Legality of Initial Entry

Krise contends that because the writ of body attachment was facially invalid, the officers' entry into her residence was illegal, and thus all fruits of the subsequent search should have been suppressed.

The undisputed evidence shows that at the time police went to Krise's residence, the writ of body attachment the officers intended to serve had been previously executed. However, the evidence supports the inference that the officers believed the writ remained active when they arrived at Krise's home. (R. 552, 574). In response to Krise's and Tungate's assertions that the writ had been executed, Officer Woodhull contacted his dispatcher and was informed that the writ was still active. (R. 576). Police received confirmation that in fact the writ had been served only after Krise had been transported to the Decatur County Jail. (R. 576). Krise has not presented any evidence to show that police knowingly served a previously executed writ, and our examination of the record reveals none.

More importantly, the officers testified during the suppression hearing and during trial that Krise voluntarily permitted them entry into her residence. (R. 232, 280, 302, 550). Although Krise disputes those accounts and claims the officers instead "bombarded through the door," we decline to reweigh this evidence on appeal. (R. 691). As Krise invited the officers into her home, we find no authority for her proposition that their initial entry into the residence was unlawful. See Geimer v. State, 591 N.E.2d 1016, 1018-19 (Ind.1992)

(holding that valid, voluntary consent to enter residence did not taint subsequent arrest despite absence of any warrant); Hunt v. State, 550 N.E.2d 838, 842 (Ind.Ct.App. 1990) (holding that consent to entry of home by police officers was sufficient to overcome accused's Fourth Amendment claim). Accordingly, we find no error here.

C. Validity of Consent to Search

Krise contends that Tungate's consent to search the residence was not voluntary but instead amounted to a mere submission to the supremacy of the law. In support of this contention, Krise argues that the large number of officers in the home, coupled with their intimidating tactics, left Tungate no alternative but to agree to the search.

A consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law. State v. Farber, 677 N.E.2d 1111, 1116 (Ind.Ct.App.1997), trans. denied. The voluntariness of a consent to search is determined by the totality of the circumstances, and a trial court's determination with regard to the validity of a consent is a factual matter which will not be set aside unless it is clearly erroneous. Purdy v. State, 708 N.E.2d 20, 23 (Ind.Ct.App.1999).

During the suppression hearing as well as during trial, Trooper Ayres and Trooper Ewing testified that although...

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3 cases
  • Krise v. State, 16S05-0002-CR-118.
    • United States
    • Supreme Court of Indiana
    • May 9, 2001
    ...of a home includes permission to search all containers, and in particular, a purse located inside the home. See Krise v. State, 718 N.E.2d 1136, 1142 (Ind.Ct.App.1999). Judge Friedlander pointed out in dissent that this decision conflicts with another recent decision of the Court of Appeals......
  • State v. Barker, 71A03-0001-CR-4.
    • United States
    • Court of Appeals of Indiana
    • August 30, 2000
    ...court's determination with regard to the validity of a consent will not be set aside unless it is clearly erroneous. Krise v. State, 718 N.E.2d 1136, 1141 (Ind.Ct.App.1999). We find, given the totality of the circumstances, the trial court's grant of Barker's motion to suppress was not clea......
  • Doty v. State
    • United States
    • Court of Appeals of Indiana
    • June 22, 2000
    ...resolve conflicts in the testimony and to determine the weight of the evidence and the credibility of the witnesses. Krise v. State, 718 N.E.2d 1136, 1144 (Ind.Ct.App.1999), trans. B. Analysis—Dealing in Cocaine Within 1,000 Feet of School Property In the instant case, Doty argues that "the......
1 books & journal articles
  • Reconstructing consent.
    • United States
    • Journal of Criminal Law and Criminology No. 2001, September 2001
    • September 22, 2001
    ...counsel, and the ability of the police to re-question a suspect who has invoked his right to counsel). (149) See, e.g., Krise v. State, 718 N.E.2d 1136 (Ind. Ct. App. 2000) (defendant's roommate initially refused to consent, but eventually consented after being asked several times; court fo......

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