McIlquham v. State, 49A05–1212–CR–631.

• Docket Nº: No. 49A05–1212–CR–631.
• Citation: 992 N.E.2d 904
• Case Date: August 14, 2013
• Court: Court of Appeals of Indiana

992 N.E.2d 904

Nick McILQUHAM, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1212–CR–631.

Court of Appeals of Indiana.

Aug. 14, 2013.

[992 N.E.2d 906]

Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
BAKER, Judge.

The appellant-defendant Nick McIlquham is appealing his convictions for the Unlawful Possession of a Firearm by a Serious Violent felon,¹ a class B felony, Neglect of a Dependent,² a class D felony, Possession of Marijuana,³ a class A misdemeanor, and Possession of Paraphernalia, ⁴ a class A misdemeanor. McIlquham challenges the police officers' search of the apartment where he occasionally resided and the discovery of a handgun, marijuana, and a scale in the residence. As a result, McIlquham argues that these items should not have been admitted into evidence at trial. Finally, McIlquham maintains that his conviction for possession of paraphernalia cannot stand because the State failed to present sufficient evidence with regard to that offense.

The State counters that the seizure of these items and their admission into evidence did not violate McIlquham's Fourth Amendment rights under the United States Constitution because the search of the apartment was consensual and contends that the community caretaking exception to the warrant requirement justified the warrantless search.

We conclude that McIlquham's Fourth Amendment rights were not violated and the evidence was properly admitted into evidence. Similarly, we find that the evidence was sufficient to support McIlquham's conviction for possession of paraphernalia. Thus, we affirm McIlquham's convictions.

FACTS

On July 5, 2011, around 9:00 a.m., McIlquham was sleeping in Amber Rolland's apartment in the Stone Lake Lodge Apartments (Stone Lake) on the south side of Indianapolis. Around that time, Indianapolis Metropolitan Police Department (IMPD) Officers Matthew McFadden and Daniel Disney responded to a call regarding a young child standing near a pond at Stone Lake. When Officer McFadden arrived, he noticed the little girl, later identified as “R.,” ⁵ who appeared to be about three years old, and a woman, standing next to the pond. Officer McFadden later recalled that R. was not wearing a diaper. R. was naked from the waist down and was attempting “to eat Cheerios off the ground.” Tr. p. 36. At some point, when the officers were talking to R. and Catherine Meyer, who was at the scene, McIlquham appeared and stated that he was R.'s father. McIlquham stated that he had

[992 N.E.2d 907]

fallen asleep and that R. “must have gotten out of the apartment.” Id. at 38. Officer McFadden informed McIlquham that he “needed to come back to [the] apartment and make sure that the living conditions were [safe] for the child ... and that we would probably end up getting ahold of CPS (Child Protective Services).” Id. at 39, 42, 85, 96. Officer Disney later recalled that McIlquham “said it was okay” for the officers to follow him back to the apartment. Tr. p. 96. McIlquham then picked up R. and started walking back to the apartment with Officer McFadden.

When Officer McFadden and McIlquham arrived at the apartment, McIlquham opened the door, where Officer McFadden saw McIlquham make a “bee line” for the “kitchen ... and walk ... at a very fast pace to the kitchen.” Id. at 39. Officer McFadden then saw McIlquham make “furtive movements” from the counter to his pockets. Id. at 42. Officer McFadden explained that “not knowing whether [McIlquham] grabbed any weapons ... or anything that could have harmed me,” he placed McIlquham's hands behind him. Id. A patdown search disclosed that McIlquham “had stuffed a bunch of some marijuana into his pockets.” Id.

After restraining McIlquham, Officer McFadden noticed some scissors, cut baggies, and marijuana on the kitchen counter. Id. at 43. After Officer McFadden told McIlquham to sit down in the living room, Officer McFadden saw “a bunch of marijuana [residue] all over the carpet” and on a child's table. Id.

Officer McFadden advised McIlquham of his Miranda⁶ rights. Thereafter, Officer McFadden asked McIlquham if he lived at the apartment, to which McIlquham replied, “sometimes.” Id. at 44. In response to Officer McFadden's questions, McIlquham acknowledged that his name was not on the lease and informed them that Rolland had rented the apartment.

When Rolland arrived at the apartment and talked with the officers, they told her that they had been summoned to check on R.'s welfare and explained to Rolland what they had found in the residence. Officer McFadden explained to Rolland that because drugs had been found in the apartment, CPS would be notified and a determination would be made as to whether R. would be allowed to remain at the apartment. Thereafter, Rolland read and signed a consent-to-search form for the officers to search the residence.

In addition to the marijuana that the police saw on the kitchen counter, the living room floor, and the child's table, they discovered additional marijuana in the apartment's bedroom. They also found a loaded .22 caliber handgun in a case under the bed. McIlquham admitted that the marijuana and the gun belonged to him.

McIlquham was later interviewed at the police station by IMPD Detectives. McIlquham stated that the officers who found R. had “wanted to come back to my house and make sure everything's fit.” Ex. 19. McIlquham recounted: “I walked in the door and I knew I had stuff laying out.... I tried to put it in my pocket so he didn't see it ‘cause I knew he was gonna arrest me ... he didn't see me put it in my pocket ... he saw me reachin’ in my pocket.” Id. McIlquham again repeated that the drugs and the handgun were his and that Rolland did not know about the items.

On July 7, 2011, the State charged McIlquham with Count I, unlawful possession of a firearm by a serious violent felon, a class B felony, Count II, neglect of a dependent, a class D felony, Count III, dealing

[992 N.E.2d 908]

in marijuana, a class A misdemeanor, Count IV, possession of marijuana, a class A misdemeanor, and Count V, possession of paraphernalia, a class A misdemeanor.

McIlquham subsequently entered an “open plea” to Count II, neglect, and to Count IV, possession of marijuana. Tr. p. 15–22. The trial court took those pleas under advisement. Thereafter, the matter proceeded to a bench trial. McIlquham objected to the items that were recovered during the search of the apartment and moved to suppress the admission of those items. The trial court denied McIlquham's motion to suppress, and found him guilty of the remaining counts, except for the dealing in marijuana charge. McIlquham was sentenced to an aggregate term of six years on all counts and he now appeals.

DISCUSSION AND DECISION I. Search of Apartment

McIlquham argues that the search of the apartment was improper and the police officers' discovery and seizure of the evidence should have been excluded from the evidence at trial pursuant to his right to be free from unlawful search and seizure under the Fourth Amendment. Specifically, McIlquham maintains that because neither he nor Rolland validly consented to the search of the residence, the evidence should not have been admitted.

We initially observe that a trial court has broad discretion in ruling on the admissibility or exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009). The trial court's ruling will be disturbed only upon a showing of an abuse of that discretion. Id. An abuse of discretion occurs when the trial court's ruling is clearly against the...