Negash v. State
| Citation | 113 N.E.3d 1281 |
| Decision Date | 11 December 2018 |
| Docket Number | Court of Appeals Case No. 18A-CR-840 |
| Parties | Aaron A. NEGASH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Attorney for Appellant: Talisha Griffin, Marion County Public Defender Agency, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
[1] Aaron Negash ("Negash") appeals his convictions, following a bench trial, for Class A misdemeanor carrying a handgun without a license1 and Class A misdemeanor possession of a synthetic drug or lookalike substance.2 Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred by ordering Negash to pay probation fees.
[2] We conclude that: (1) the trial court properly admitted the evidence; (2) there was sufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court did not err in imposing probation fees. However, we remand to the trial court to hold an indigency hearing upon the completion of Negash's sentence.
[3] We affirm and remand with instructions.
[4] On the night of May 22, 2017, police from the Indianapolis Metropolitan Police Department were dispatched to the Living Room Lounge in Indianapolis on a report of shots fired. When Officer Matthew Plummer ("Officer Plummer") and Sergeant Mark Gregory ("Sgt. Gregory") arrived on scene, a suspect was already in custody. They learned that another vehicle was involved in the incident and that a vehicle with three occupants was parked behind the building. Officer Plummer and Sgt. Gregory "walked up and started conversing with the occupants in the vehicle." (Tr. 12).
[5] Negash, who identified himself as "Moses," was seated in the driver's seat of the vehicle.3 (Tr. 23). There was one front-seat passenger and one back-seat passenger. Officer Plummer spoke with Negash and the back-seat passenger and informed them that he and Sgt. Gregory were investigating a report of shots fired. Officer Plummer asked the occupants whether they "had [ ] heard anything, [and] [whether] there [were] any weapons in the vehicle[.]" (Tr. 12). The three occupants responded "no." (Tr. 12). While Officer Plummer focused on Negash and the back-seat passenger, Sgt. Gregory spoke to the front-seat passenger, who was "moving around, reaching for the glovebox, going for his wristband, [and] pulling his shirt up." (Tr. 13). The back-seat passenger did not say anything to Officer Plummer, but he pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13).
[6] Officer Plummer then asked Negash to step out of the vehicle. As Negash stepped out of the vehicle, Officer Plummer observed "a huge bulge in [Negash's] right pocket, sticking out, protruding." (Tr. 14). Officer Plummer immediately conducted a pat-down of the outer layer of Negash's clothing and felt "a baggie of narcotics." (Tr. 14). During the pat-down, Officer Plummer also "looked down as [he] patted down and [could] see straight into the pocket." (Tr. 15). Based on his experiences as a law enforcement officer, Officer Plummer recognized that the baggie contained synthetic marijuana.4 Officer Plummer arrested Negash and seized the synthetic marijuana. The police then searched the vehicle and located a handgun in the glovebox. The hammer of the handgun was cocked back and the gun was loaded.
[7] Negash stood at the hood of the police vehicle while Officer Plummer was in the same vehicle trying to verify Negash's identity in the computer system. Sgt. Gregory leaned into Officer Plummer's window and asked, "is someone going to be arrested for the gun?" (Tr. 27). Negash interjected and stated, (Tr. 27). Officer Plummer went to the trunk but did not find a gun permit.
[8] The State charged Negash with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. A bench trial was held on February 13, 2018. At trial, Officer Plummer and Moses Negash testified to the facts above. When the State introduced the synthetic marijuana into evidence, defense counsel objected and stated the following:
(Tr. 18). The trial court overruled the objection and admitted the synthetic marijuana into evidence. The trial court found Negash guilty of both counts.
[9] Thereafter, the trial court held a sentencing hearing. During this hearing, the trial court ordered Negash to "do [ ] [three hundred and five] (305) days on probation with the standard conditions and fees." (Tr. 62). Additionally, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[,]" provided, in relevant part, that: Negash would be subject to all "standard conditions and fees" of probation. (App. Vol. II at 13). Further, the sentencing order, under the "Court Costs and Fees" section of "Part V Monetary Obligations[,]" provided, in relevant part, that Negash was obligated to pay: a $50.00 adult probation administrative fees; a $281.30 adult probation month and initial user fee; and a $8.70 probation user fee. (App. Vol. II at 14). The probation order for Negash lists fourteen standard conditions, including "pay all Court-ordered fines, costs, fees and restitution as directed." (App. Vol. II at 15). The special conditions section of the probation order includes that same conditions as in the sentencing order. The trial court imposed a sentence of thirty (30) days in the Marion County Jail, with the remaining three hundred and five (305) days to be served on probation with all the standard conditions and fees for each of the Class A misdemeanor convictions. The trial court ordered both convictions to run concurrently. Negash now appeals.
[10] On appeal, Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred in imposing probation fees. We will review each argument in turn.
[11] First, Negash argues that the trial court abused its discretion when it admitted into evidence the synthetic marijuana Officer Plummer had seized. Specifically, he argues that the search that produced the synthetic marijuana was illegal because it violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
[12] The admission of evidence is generally left to the discretion of the trial court. Hammond v. State , 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review admissibility challenges for an abuse of that discretion and will reverse only when the admission of evidence is clearly against the logic and effect of the facts and circumstances before the court and the error affects the party's substantial rights. Id. " ‘[W]hen an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of evidence, it raises a question of law, and we consider that question de novo.’ " Id. (quoting Guilmette v. State , 14 N.E.3d 38, 40-41 (Ind. 2014) ). Generally speaking, evidence obtained pursuant to an unlawful search must be excluded at trial. Clark v. State , 994 N.E.2d 252, 266 (Ind. 2013).
[13] The Fourth Amendment to the United States Constitution provides that citizens have the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. We begin by noting that there are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Overstreet v. State , 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh'g denied , trans denied . First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. Id. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This third level is a consensual encounter in which the Fourth Amendment is not implicated. Id. The Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen loses its consensual nature....
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