Nowling v. State

• Decision Date: 24 October 2011
• Docket Number: No. 31A01–1010–CR–552.,31A01–1010–CR–552.
• Citation: 955 N.E.2d 854
• Parties: Steven NOWLING, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

955 N.E.2d 854

Steven NOWLING, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 31A01–1010–CR–552.

Court of Appeals of Indiana.

Oct. 24, 2011.

Matthew J. McGovern, Evansville, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Steven Nowling appeals his conviction for possession of methamphetamine as a class D felony.¹ Nowling raises two issues, which we revise and restate as:

I. Whether the trial court abused its discretion by admitting certain evidence; and

II. Whether the trial court erred in admitting evidence of Nowling's statements made to his probation officer.

We affirm.

The relevant facts follow. Nowling was on probation for two offenses. A written condition of probation was that: “[Y]our person, vehicle, home and all your property of any kind is subject to search and seizure. Any search or seizure procedures shall be conducted by the probation officer and/or his or her authorized agent and shall be reasonable under the circumstances.” Transcript at 63. Nowling's probation officer, Jeff Skaggs, referred him to intensive outpatient drug and alcohol counseling, which he completed on January 21, 2010. In his discharge summary dated January 25, 2010, the counselor noted that Nowling “lives in la-la land,” which Skaggs believed meant that Nowling was “not being honest with [himself] about what's going on ... with [his] use or [his] amount of control [he has] to abstain” from using drugs, and the counselor recommended close supervision including home visits during evening hours. Id. at 89. The counselor also recommended that Nowling continue to abstain from drugs and alcohol. After Nowling's discharge from treatment, Skaggs performed a risk assessment and determined that Nowling was a “high risk.” Id. at 94.

On February 26, 2010, Skaggs, accompanied by Indiana State Troopers Katrina Smith and Jackie Smith, whom Skaggs referred to as his “authorized agents,” conducted a home visit at a home owned by James Zimmerman, at which Nowling had resided with Zimmerman and Zimmerman's daughter Gail Rikard, who was also Nowling's fiancee, for about twelve years pursuant to an arrangement in which Rikard and Nowling helped take care of Zimmerman and run the household. Id. at 57. Trooper Jackie Smith was in full uniform and armed, and Trooper Katrina Smith was dressed in plain clothes and also armed. Upon arriving at the residence, they were greeted at the door by Zimmerman who asked them “to come in.” Id. at 120. Zimmerman informed Skaggs and the troopers that Nowling was not home but that he would be home shortly. Skaggs asked Zimmerman where Nowling's bedroom was, and Zimmerman replied that it was upstairs and “directed [Skaggs and the troopers] to the staircase.” Id. at 138. Skaggs and Trooper Katrina Smith then proceeded upstairs. Neither Skaggs nor the troopers asked Zimmerman for permission to search the home.

Upon entering Nowling's bedroom, Trooper Katrina Smith and Skaggs noticed drug paraphernalia, including a white pen hull containing white powder, a plastic baggie with white residue in it, and aluminum foil sitting on a table. Trooper Katrina Smith also found an unloaded handgun in a dresser drawer.

A short time later, Nowling arrived home, and, while Trooper Katrina Smith remained in the bedroom, Skaggs, in the presence of Trooper Jackie Smith, met Nowling on the first floor of the house and asked him if there was “anything ... there that we needed to know....” Id. at 58. Skaggs then went back upstairs with Nowling and proceeded to ask him about the items found in his room. At that point, according to Trooper Katrina Smith, Nowling was “detained,” but he had not been handcuffed and it had not been decided whether he would be taken to jail. Id. at 112. Nowling claimed that the drug paraphernalia in his room was old and “had been there for a while,” but admitted that he had used methamphetamine earlier that day. Id. at 62. Test results later revealed that the white powder on the pen hull consisted of both cocaine and methamphetamine and the baggie contained cocaine residue.

On April 8, 2010, the State charged Nowling with possession of cocaine as a class D felony, possession of cocaine while in possession of a firearm as a class C felony, and possession of methamphetamine while in possession of a firearm as a class C felony. At the outset of the jury trial, Nowling moved to suppress the drug paraphernalia and any statements made by Nowling to Skaggs. The court held a hearing on the motions, but ultimately denied them. The trial proceeded with the presentation of the evidence and Nowling objected to the introduction of the physical evidence and the statements made on the day of the search.

During the trial, Skaggs testified that Nowling admitted in court on August 16, 2010 that he possessed drug paraphernalia on the day of the search in violation of his probation. Skaggs also testified that he had no evidence that Nowling was using illicit substances when he decided to conduct the home visit and was simply following protocol as his position requires. Rikard testified that the handgun recovered from Nowling's bedroom belonged to her.

On September 16, 2010, Nowling was found guilty of the lesser-included offense of possession of methamphetamine as a class D felony and not guilty of possession of cocaine while in possession of a firearm as a class C felony. The court declared a mistrial as to the count of possession of cocaine as a class D felony and ultimately dismissed the count without prejudice upon request of the parties. The court sentenced Nowling to two-and-a-half years in the Department of Correction.

The issue is whether the trial court abused its discretion by admitting certain evidence. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs “where the decision is clearly against the logic and effect of the facts and circumstances” before the court. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). In making this determination, this court does not reweigh evidence and considers conflicting evidence in a light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007). However, we must also consider the uncontested evidence favorable to the defendant.Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Id. Further, this court considers evidence from the trial as well as evidence from the suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005).

Nowling argues that the search was illegal under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. We begin by addressing Nowling's Fourth Amendment claims. The Fourth Amendment to the United States Constitution provides, in pertinent part: “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV. The Fourth Amendment's protection against unreasonable searches and seizures has been extended to the states through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464–465 (Ind.1998). Generally, searches should be conducted pursuant to a warrant supported by probable cause. Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999). As a general rule, warrantless searches and seizures inside the home are presumptively unreasonable. Primus v. State, 813 N.E.2d 370, 374 (Ind.Ct.App.2004). Consequently, when a search is conducted without a warrant, the State has the burden of proving that the search falls into one of the exceptions to the warrant requirement. Berry, 704 N.E.2d at 465. Two such exceptions include: (A) the “special needs” associated with the State's operation of its probation system; and (B) consent.

A. Special Needs of Probation System

Nowling argues that “[w]hen a probationer agrees to a condition of probation which allows the State to search his home, any subsequent search must be supported by a ‘reasonable suspicion,’ ” but that the evidence adduced at trial “fails to establish a ‘reasonable suspicion’ to search [his] room.” Appellant's Brief at 9, 12. Nowling argues that Skaggs “equated the recommendation for a ‘home visit’ with ‘a search of the residence,’ ” that “based upon this ... alone, [Skaggs] decided to visit and search [the] home without a warrant,” and that Skaggs “admitted that he had no other evidence that [Nowling] was using illicit substances.” Id. at 12. Nowling argues that he “was not at home when the search began, so there is no evidence that [his] behavior prompted the search.” Id. Nowling also notes that the discharge summary prepared by the counselor noted that he “should continue to abstain,” which was “a clear indication that the counselor thought that [Nowling] was not currently using drugs or alcohol.” Id. at 13 (internal quotation omitted). Lastly, Nowling argues that the State relies upon the remark by the counselor that he “lives in la-la land,” which is “an ambiguous, nonspecific reference and does not indicate that [he] has committed or was about to commit a crime.” Id.

“[T]he United States Supreme Court has determined that ‘[a] State's operation of a probation system ... presents ‘special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.’ ” Micheau v. State, 893 N.E.2d 1053, 1059 (Ind.Ct.App.2008) (quoting Allen v. State, 743 N.E.2d 1222, 1227 (Ind.Ct.App.2001) (quoting Griffin v. Wisconsin, 483 U.S. 868,...