Ogburn v. State, No. 82A01–1509–CR–1546.

• Docket Nº: No. 82A01–1509–CR–1546.
• Citation: 53 N.E.3d 464
• Case Date: April 18, 2016
• Court: Court of Appeals of Indiana

53 N.E.3d 464

Toddrick OGBURN, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 82A01–1509–CR–1546.

Court of Appeals of Indiana.

April 18, 2016.

53 N.E.3d 466

Matthew J. McGovern, Anderson, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ROBB, Judge.

Case Summary and Issues

1] Following a jury trial, Toddrick Ogburn was convicted of possession of

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marijuana with intent to deliver, in an amount greater than ten pounds, a Class C felony. Ogburn appeals, raising two issues for our review, one of which we find dispositive: whether the trial court abused its discretion by admitting evidence obtained in violation of the Fourth Amendment. Concluding the trial court abused its discretion, we reverse and remand.

Facts and Procedural History¹

2] On July 11, 2013, Officer Gregory Hosterman of the Evansville Police Department was dispatched to an apartment to investigate a report of a burglary. When Officer Hosterman arrived, he found the front door ajar and the first-floor window adjacent to the front door broken. Suspecting a burglary had occurred, he requested assistance to conduct a protective sweep of the residence. Once additional officers arrived, Officer Hosterman entered the residence, which appeared “ransacked.” Transcript at 9. Large pieces of furniture were flipped over, the kitchen cabinets were open, and clothes were strewn everywhere. The officers found no one inside but noticed an odor of burnt marijuana.

[3] Officer Hosterman exited the residence and requested a crime scene detective to take photographs. Detective Todd Lincoln arrived shortly thereafter and began processing the scene. While photographing the interior of the residence, Detective Lincoln discovered two baggies of suspected narcotics inside a large, opaque vase. The vase did not appear to be damaged, but Detective Lincoln was curious about a metal rod protruding from it. Detective Lincoln stood directly over the vase to photograph the inside of it, using the zoom function on his camera. The photograph shows what appears to be two baggies at the bottom of the vase. After reviewing the photograph, Detective Lincoln zoomed in further and took another photograph. That photograph clearly shows two baggies—one containing multicolored pills and another containing a white powder.

[4] Detective Lincoln exited the residence to inform Officer Hosterman of his discovery. Both officers re-entered the residence to look inside the vase. Officer Hosterman agreed the baggies likely contained narcotics and requested a narcotics detective. Detective Tony Johnson responded to the call. Detective Johnson also entered the residence to look inside the vase and agreed the baggies appeared to contain narcotics. Officer Hosterman then obtained a search warrant for the residence based upon the odor of burnt marijuana inside the residence and the baggies of suspected narcotics inside the vase. The search warrant authorized the police to search for:

fruits, instrumentalities and evidence pertaining to the crime of dealing and/or possession of controlled substances, specifically cocaine and/or ecstasy and/or marijuana as more particularly described as follows:

1. Cocaine;

2. Ecstasy;

3. Marijuana;

4. Books, records, receipts, notes, ledgers and other papers, and records of telephone call[s] recorded on a cellular telephone relating to the sale or distribution of controlled substances.

5. Books, records, receipts, bank statements and records, money drafts, letters of credit, money order and cashier's checks receipts, passbooks,

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bank checks, and other items evidencing the obtaining, secreting, transfer, and/or concealment and/or expenditure of money;

6. Financial proceeds of dealing in controlled substances such as lawful U.S. Currency;

7. Indicia of occupancy, residency or ownership such as labels, identification cards, letters, or photographs;

8. Scales and other types of instruments used to weigh controlled substances;

9. Plastic baggies and other instruments commonly used in weighing or packaging controlled substances;

10. Computers and other electronic data storage and retrieval devices such as facsimile machines, cellular telephones and pagers which are capable of storing the records described in paragraphs [3 and 4]; and

11. Firearms.

Suppression Hearing Exhibit 1.

5] The police seized the following items from the residence pursuant to the search warrant: (1) thirty-four pills that field-tested positive for 3, 4–methylenedioxymethamphetamine (“MDMA”) (also known as “ecstasy”); (2) approximately ten grams of an unknown white powder; (3) two digital scales; (4) five cell phones; (5) assorted paperwork bearing the names “Toddrick Ogburn” or “Patricia Rockmore”; and (6) a key fob for a vehicle. Appellant's Appendix at 16; Tr. at 84. When an officer pressed a button on the key fob to determine if it belonged to a vehicle in the parking lot, a 2001 Chevrolet Tahoe parked approximately twenty-five feet from the building beeped.

[6] At some point during the search of the residence, a young man arrived, identified himself as Divarious Rockmore, and informed the officers that he lived in the apartment with his aunt, Patricia Rockmore. The officers determined the Tahoe was registered to Patricia Rockmore and called for a K–9 unit to walk the perimeter of the vehicle. The dog alerted to the presence of narcotics, and the police obtained a search warrant for the vehicle. Inside the vehicle they discovered two bundles of marijuana weighing over twenty pounds each. They also found two receipts—a Western Union receipt signed by “Toddrick Ogburn” as well as an invoice for vehicle repairs with the name “Todd Rick” at the top. State's Trial Exhibits 2, 3. Ogburn arrived sometime after the officers searched the Tahoe. According to the officers at the scene, he admitted the marijuana found in the Tahoe belonged to him.

[7] The State charged Ogburn with Count I, possession of MDMA with intent to deliver, within one thousand feet of a family housing complex, a Class A felony; Count II, possession of MDMA with intent to deliver, within one thousand feet of a public park, a Class A felony; Count III, possession of marijuana with intent to deliver, in an amount greater than ten pounds, a Class C felony; Count IV, knowingly maintaining a building used for unlawfully keeping controlled substances, a Class D felony; and Count V, knowingly maintaining a vehicle used for unlawfully keeping controlled substances, a Class D felony.

[8] Prior to trial, Ogburn filed a motion to suppress, which the trial court granted in part:

Officer Hosterman initially entered the residence ... after he had observed evidence of a break-in or burglary at the residence. This Court finds that this initial entry was justified by exigent circumstances, which included the need to determine if any suspects were in the residence and the need to determine if

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anyone located in the home was in need of aid.

However, this Court finds that the second entry into the residence to document or photograph evidence was not justified by exigent circumstances.

Law enforcement officers then obtained a search warrant for the residence based on observations made during the initial entry and observations made during the second entry. Probable cause to search the residence existed even without the evidence that the court has ordered suppressed because the search warrant was also based on Officer Hosterman's observations of a possible burglary and his testimony that he smelled marijuana upon his initial entry....

Therefore, any evidence first observed during the second entry into the home, including the alleged controlled substances found in the urn or vase, is ordered suppressed. Any other evidence found during the search of the residence is not suppressed.

App. at 83–84. Ogburn filed a second motion to suppress, requesting the trial court also suppress the evidence seized from the Tahoe. The trial court denied the motion. Thereafter, Ogburn filed a motion to dismiss Counts I, II, and IV, which the trial court granted in light of its ruling suppressing the evidence found inside the vase.

9] A jury trial was held in August 2015. When the State offered the marijuana bundles into evidence, Ogburn objected, arguing the evidence was a product of the illegal search of the residence. The trial court affirmed its denial of Ogburn's second motion to suppress and admitted the marijuana over Ogburn's objection. Ogburn testified and wholly denied speaking to the police on July 11, 2013. He also denied ever living in the apartment the police searched and stated the Tahoe, as well as the marijuana, belonged to Patricia Rockmore (his ex-wife). The jury found Ogburn guilty of possession of marijuana with intent to deliver as a Class C felony and not guilty of maintaining a common nuisance with respect to the Tahoe. The trial court entered judgment of conviction for possession of marijuana with intent to deliver and sentenced Ogburn to seven years executed in the Department of Correction. This appeal followed.

Discussion and Decision

I. Standard of Review

[10] Ogburn contends the search of the Tahoe violated the Fourth Amendment, which guarantees “[t]he right of the...