Smith v. State, 71A03-0802-CR-43.

• Decision Date: 08 July 2008
• Docket Number: No. 71A03-0802-CR-43.,71A03-0802-CR-43.
• Parties: Tanicka SMITH,<SMALL><SUP>1</SUP></SMALL> Appellant-Respondent, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

889 N.E.2d 836

Tanicka SMITH,¹ Appellant-Respondent, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-0802-CR-43.

Court of Appeals of Indiana.

July 8, 2008.

Thomas P. Keller, South Bend, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issue

Following a bench trial, Tanicka Smith appeals her conviction of possession of cocaine, a Class D felony. On appeal, Smith raises one issue, which we restate as whether the trial court properly admitted into evidence cocaine that was found following a search of the motel room in which Smith was an occupant. Concluding that the search was unreasonable and that the trial court therefore improperly admitted the cocaine into evidence, we reverse and remand.

Facts and Procedural History

On October 26, 2006, Corporal Neil Hoover of the St. Joseph County Police Department received information that Smith was staying at a motel in St. Joseph County and that there was a warrant for her arrest. Around 7:00 p.m. that evening, Corporal Hoover arrived at the motel with Lieutenant Craig Toner and Patrolman Kevin Kwieran, both of the Roseland Police Department. Corporal Hoover knocked on the door to Smith's room while identifying himself as a police officer. After Corporal Hoover knocked several times without receiving a response, the three officers heard "some rustling, possibly whispering in the room" followed by "a very distinct sound that appeared to be porcelain-on-porcelain" that, according to Corporal Hoover, "sounded like a toilet lid being knocked around." Transcript at 12. Based on these observations, the officers believed that the occupants might be hiding weapons or contraband, or, according to Corporal Hoover, "possibly making a plan of attack for [the] officers when they enter the room." Id. at 15. Corporal Hoover and Lieutenant Toner also based their beliefs as to the occupants' actions on past experiences at the motel, as both testified that they had responded to calls at the motel on many occasions and that several of those calls resulted in the discovery of hidden weapons and contraband.

After Corporal Hoover knocked several more times, someone inside the room asked whether the officers had a warrant. Corporal Hoover said he did, and the person kept telling the officers, "Just a minute, just a minute." Id. at 14. In response, Corporal Hoover got a keycard from the front desk and announced, "We have a card, we're going to open the door." Id. at 15. After two unsuccessful attempts by Corporal Hoover to open the door, a man, later identified as Thomas Hardy, opened the door and let the officers inside. The officers entered with weapons drawn; Lieutenant Toner secured Hardy,² while Corporal Hoover and Patrolman Kwieran opened the door to the bathroom. Smith was standing between the doorway and the toilet in her underwear, and Patrolman Kwieran directed her out of the bathroom and had her lay on the bed that was closest to the bathroom. After Smith had exited the bathroom, Corporal Hoover entered and "began like a wingspan search of whatever [Smith] could have touched at the time when we found her." Tr. at 18. This search included looking inside a makeup bag that was near the sink and removing the lid to the toilet's tank. Inside the tank, Corporal Hoover discovered a plastic baggie containing .26 grams of cocaine.

After discovering the cocaine, Corporal Hoover attempted to confirm Smith's identity, but she gave a false name. One of the officers opened a handbag that was on the nightstand, discovered a driver's license, and confirmed Smith's identity. The officers then permitted Smith to get dressed and handcuffed her. Also around this time, according to Patrolman Kwieran, either Corporal Hoover or Lieutenant Toner "searched like around the beds, opened the drawers, a couple of drawers" and found a pipe underneath the air conditioner. Id. at 68.

On October 28, 2006, the State charged Smith with possession of cocaine, a Class D felony. On June 25, 2007, Smith filed a motion to suppress the cocaine. On June 28, 2007, the trial court conducted a hearing on the motion to suppress, but deferred ruling on the motion until after a bench trial. On the same day, the trial court conducted a bench trial, during which it heard testimony from Corporal Hoover, Lieutenant Toner, and Patrolman Kwieran. On July 24, 2007, the trial court entered an order denying Smith's motion to suppress and finding her guilty of possession of cocaine. Smith now appeals.

Discussion and Decision

I. Standard of Review

In cases such as this one where Smith originally sought to suppress evidence, but appeals following its admission, we choose to frame the issue "as whether the trial court abused its discretion by admitting the evidence at trial," Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003), because "[o]ur standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial," Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007). Abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001). In making this determination, we do not reweigh evidence and consider conflicting evidence in a light most favorable to the trial court's ruling. Cole, 878 N.E.2d at 885. We also consider uncontroverted evidence in the defendant's favor. Id.

II. Reasonableness of Search

Smith argues the trial court abused its discretion in admitting the cocaine into evidence because it was the product of an unreasonable search and therefore violated her right to be free from such searches as guaranteed by the Fourth Amendment.³ The Fourth Amendment states in relevant part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The purpose of this provision is to protect people from unreasonable search and seizure, and it applies to the states through the Fourteenth Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001) (citing Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

We note initially the parties agree that the officers' entry into the room and arrest of Smith was valid and that Corporal Hoover's removal of the toilet lid constitutes a warrantless search for Fourth Amendment purposes. Thus, the question becomes whether Corporal Hoover's warrantless search was reasonable. "The Fourth Amendment requires the police to obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property, except under special circumstances fitting within `certain carefully drawn and well-delineated exceptions.'" Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Because warrantless searches are per se unreasonable, the State bears the burden of establishing that the search falls within one of the well-delineated exceptions to the warrant requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind.Ct. App.2002), trans. denied. We will discuss several of these exceptions, but, for reasons explained below, conclude that none of them apply so as to render Corporal Hoover's search reasonable.

A. Consent

In concluding that Corporal Hoover's search was reasonable, the trial court appears to have relied at least in part on Hardy's consent, as it found "that the officers were voluntarily allowed into the hotel room by an occupant of that hotel room...." Appellant's App. at 12. A voluntary and knowing consent to search is a well-recognized exception to the warrant requirement. Krise, 746 N.E.2d at 961. However, where consent to search has been given, the resulting search is reasonable only if it is within the scope of that consent. Pinkney v. State, 742 N.E.2d 956, 960 (Ind.Ct.App.2001), trans. denied. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, in other words, `what would the typical reasonable person have understood by the exchange between the officer and the suspect?'" Id. (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)).

The record indicates that after Hardy opened the door and let the officers in, no further communication took place regarding whether Hardy or Smith would consent to a search of the premises. Instead, Corporal Hoover entered the bathroom after Smith had exited and began his search. Even assuming that Hardy's act of opening the door and letting the officers in constituted consent to enter, no reasonable person could have interpreted this to mean that the officers also had consent to search the premises. Cf. Buckley v. State, 797 N.E.2d 845, 849-51 (Ind.Ct.App.2003) (concluding officer's removal of the lid to a small tin exceeded the scope of consent where the officer asked the defendant if he could search the house to see if anyone else was present and the defendant replied that the officers could "go ahead and check ... anything [they] want[ed]"). Thus, it follows that Corporal Hoover did not have consent from Hardy or Smith to search the toilet.

B. Protective Sweep

The State's principal argument is that Corporal Hoover's search of the toilet was reasonable because it was part of a "protective sweep" of the premises. See Appellee's Brief at 6 ("Because of the proximity of access from the beds to the bathroom, Officer Hoover would have been justified in conducting his brief sweep of the room even without the reasonable suspicion created by the occupants' behavior." (citing Hannibal, 804 N.E.2d at 209)). Although we agree with the State that Corporal Hoover was...