Trent v. State
| Decision Date | 10 February 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1280 |
| Citation | 167 N.E.3d 686 (Table) |
| Parties | Norman G. TRENT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Justin L. Froedge, Goebel Law Office, Crawfordsville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
[1] Norman G. Trent ("Trent") appeals his convictions for Possession of Marijuana,1 and Possession of Hashish,2 as Class B misdemeanors. We affirm.
[2] Trent presents three issues for review:
[3] On December 10, 2018, Crawfordsville Police Officer Micah Hatch ("Officer Hatch") was patrolling in downtown Crawfordsville when he observed Trent operating a vehicle with a non-functioning headlight. Officer Hatch initiated a traffic stop, during which he detected the odor of marijuana emanating from the vehicle. At Officer Hatch's request, Trent exited the vehicle. Officer Hatch stated that he intended to search the vehicle; Trent refused to give permission for a search and locked the vehicle by using a key fob.
[4] Trent was permitted to walk away, and Officer Hatch obtained a search warrant for the vehicle and arranged to have it towed. The owner of the vehicle provided a spare key to officers, who then conducted a search of the vehicle. From the passenger floorboard, officers recovered a black drawstring bag containing a hat. Inside the hat were a glass jar and a plastic bag, each containing a green leafy material, and a piece of wax paper with a golden-brown waxy substance on it. Based upon the appearance and smell of the materials, Officer Hatch believed that he had recovered marijuana and hash oil. Two smoking devices were also recovered from the vehicle.
[5] On December 17, 2018, Trent was charged with Possession of Marijuana, Possession of Hashish, and Possession of Paraphernalia.3 On February 18, 2020, Trent was tried in a jury trial at which Officer Hatch was the sole witness. Trent objected to the officer's testimony and the physical exhibits he sponsored, to the extent that the evidence was obtained during execution of the search warrant. Trent argued that the search warrant was not supported by probable cause because Officer Hatch's summation of his training and experience lacked specificity. He also objected to the admission of results from a narcotics analysis reagent kit ("NARK test"), on grounds that the State provided no foundation for admission of scientific results. The evidence proffered by the State was admitted over Trent's objections.
[6] After the jury retired to deliberate, it issued a written question for the court: "three of the evidence bags note the defendant has a prior drug conviction – is that information we are allowed to use in our deliberation since it is written on an exhibit?" (Tr. Vol. II, pg. 170.) Notwithstanding the note, the jury then notified the court that verdicts had been reached. The trial court conducted a bench conference and notified the parties of the jury question, to which the court had been unable to respond. The proceedings continued without objection from either party, and it was revealed that the jury acquitted Trent of possession of paraphernalia and convicted him of possession of marijuana and hashish.
[7] After the trial court entered judgments of convictions upon the verdicts, defense counsel indicated that he would be asking the court to set aside the verdicts "based upon the writing." (Id. at 176.) The court responded that it was "not inclined" to grant the motion but granted the defense twenty-one days to submit written argument. On March 17, 2020, Trent filed a motion to correct error seeking to set aside the verdicts because of jury exposure to his prior criminal history during deliberations. On March 23, 2020, the motion was denied without a hearing. On June 9, 2020, Trent received two concurrent sentences of 180 days, to be fully executed. He now appeals.
[8] A trial court has broad discretion to rule on the admissibility of evidence. Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). In general, an abuse of discretion occurs when admission of the evidence is clearly against the logic and effect of the facts and circumstances before the trial court. Joyner v. State , 678 N.E.2d 386, 390 (Ind. 1997). However, when a challenge to admission of evidence is predicated upon the constitutionality of a search or seizure of evidence, it raises a question of law that we review de novo. Thomas , 81 N.E.3d at 624.
[9] At trial, Trent objected to the admission of Officer Hatch's testimony and "every piece of evidence or picture flowing from the warrant" because it was obtained without probable cause. (Tr. Vol. II, pg. 107.) On appeal, he observes that no drug interdiction dog was used to sniff the vehicle and argues that the search warrant was obtained solely upon a "conclusory statement" as to Officer Hatch's training in recognition of contraband. Appellant's Brief at 7.
[10] The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require that a search warrant be supported by probable cause. See Combs v. State , 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), trans. denied. In deciding whether to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Query v. State , 745 N.E.2d 769, 771 (Ind. 2001) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983) ). Probable cause determinations "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Gates , 462 U.S. at 231.
[11] The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. Query , 745 N.E.2d at 771. A substantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Id. A "reviewing court" in this context includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. In conducting our review, we consider only the evidence presented to the issuing magistrate and not post hoc justifications for the search. Id.
[12] For the proposition that probable cause cannot be based solely on a conclusory assertion, Trent directs our attention to Bean v. State , 142 N.E.3d 456, 461 (Ind. Ct. App. 2020), trans. denied. In Bean , the appellant had been convicted of dealing controlled substances. Those substances had been recovered in a warrantless search incident to arrest. According to testimony from the arresting officer, he had arrested Bean after discovering in Bean's vehicle "marijuana shake" or small bits and pieces of marijuana. Id. at 463. A panel of this Court agreed with Bean that the warrantless search was not supported by probable cause, explaining:
Detective Wood did not recover the suspected marijuana shake from the vehicle. The substance was never tested to determine whether it was marijuana. Even though Detective Wood had a police dog in his car, he did not have the dog sniff Bean's vehicle to detect the presence of illegal drugs. Detective Wood did not testify regarding any distinguishing characteristics of the substance that led him to the conclusion that the substance was marijuana. Rather, Detective Wood just testified as to his conclusion that the substance was marijuana "given [his] training and experience." ... Probable cause cannot be based solely on a conclusory assertion. For example, an affidavit that contains only "bare conclusory information, lacking underlying facts, cannot suffice as probable cause upon which to base a search warrant." Bryant v. State , 655 N.E.2d 103, 108 (Ind. Ct. App. 1995) ().
[13] Here, in the search warrant affidavit, Officer Hatch stated that he had graduated from the Indiana Law Enforcement Academy ("the Academy") and that he had "been trained and I have experience in identifying marijuana, the odor of marijuana, and items used to introduce marijuana into the body." (App. Vol. II, pg. 56.) Officer Hatch described the circumstances of the traffic stop, including the observation that Trent was the sole occupant of the vehicle and the detection of a smell the officer recognized as marijuana. Officer Hatch stated that Trent had locked the vehicle door, and that Trent had a known history of drug convictions. The affidavit provides more than a "bare assertion that a substance was a prohibited substance," as was the case in Bean . 143 N.E.3d at 464. There exists "a substantial basis for the magistrate's conclusion that probable cause existed." Query , 745 N.E.2d at 771.
[14] Trent contends that the trial court abused its discretion by admitting testimony of NARK test results without a foundation as to the scientific principles employed or test reliability....
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