Turner v. State, 79A04-0704-CR-210.

• Decision Date: 18 December 2007
• Docket Number: No. 79A04-0704-CR-210.,79A04-0704-CR-210.
• Parties: Franklin D. TURNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

878 N.E.2d 286

Franklin D. TURNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A04-0704-CR-210.

Court of Appeals of Indiana.

December 18, 2007.

Harold E. Amstutz, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

This case is before us again following a remand to the trial court after we determined that appellant-defendant Franklin D. Turner should have been permitted to withdraw his guilty plea. Following remand, Turner was tried and convicted of Dealing in Cocaine,¹ a class A felony, Possession of Cocaine,² a class A felony, Possession of Marijuana,³ a class A misdemeanor, Possession of Paraphernalia,⁴ a class A misdemeanor, Maintaining a Common Nuisance,⁵ a class D felony, and Possession of a Schedule IV Controlled Substance,⁶ a class C felony.

In this appeal, Turner argues that his convictions must be reversed because: (1) the trial court failed to follow this court's instructions on remand in conducting a suppression hearing; (2) the police officers improperly searched Turner's trash; (3) cocaine was improperly admitted into evidence at trial; (4) the evidence was insufficient to support the conviction for dealing in cocaine;⁷ and (5) he was improperly sentenced. Concluding that Turner's trash was properly seized in accordance with the standard announced by our Supreme Court in Litchfield v. State, 824 N.E.2d 356 (Ind.2005), and finding no other error, we affirm the judgment of the trial court.

FACTS

The facts, as reported in Turner's prior appeal, are as follows:

On August 21, 2003, a police officer in Tippecanoe County filed an affidavit for a search warrant, in which he described possible drug activity at 676 Harrison Circle in Dayton. The officer stated that the Dayton Town Marshall, ("Town Marshall"), had contacted him and advised him that the Town Marshall had received some complaints that there might be drug dealing at that residence. Based on that information, the officer and a detective with the Lafayette Police Department went to the residence and noticed that trash bags had been left near the curb for pickup. The officers retrieved four white trash bags, examined their contents, and discovered several marijuana cigarettes and stems that appeared to be from marijuana plants.

One week later, the officers returned and found more trash bags at the curb. Once again, they examined the contents of the bags and found more stems from marijuana plants. Based on what they had discovered in the trash bags, the officers sought a search warrant for the residence. The trial court granted the warrant and officers from the Lafayette Police Department executed it. Once inside the residence, they discovered Turner. Turner acknowledged that he lived there and stated that "there was no more marijuana as it had all been used." Appellant's App. at 12. In the garage, the officers discovered cocaine.

Turner v. State, 843 N.E.2d 937, 939 (Ind. Ct.App.2006).

Turner was subsequently arrested and charged with the above offenses. On August 9, 2004, Turner pleaded guilty to class A felony dealing in cocaine in exchange for a dismissal of the remaining charges. Before Turner was sentenced, our Supreme Court issued its opinion in Litchfield on March 24, 2005, holding that police officers must have reasonable suspicion of criminal activity before they can seize and search an individual's trash.

In response to Litchfield, Turner filed a motion to withdraw his guilty plea so that he could challenge the legality of the trash search. The trial court denied Turner's motion and subsequently sentenced Turner to twenty-five years of incarceration with five years suspended.

Turner appealed, and this court determined, among other things, that he should have been permitted to withdraw his guilty plea

[b]ecause [Turner] has demonstrated that withdrawal of his plea is necessary to correct a manifest injustice, namely, that he should have a fair opportunity to vindicate his Article I, Section 11 constitutional right against unreasonable search and seizure as enunciated in Litchfield.

Id. at 944.⁸ This court instructed the trial court on remand to conduct

a full hearing on the merits of Turner's motion to suppress. On remand, the question presented is whether the affidavit in support of the search warrant demonstrated that before the officers searched Turner's trash, they had an "articulable individualized suspicion" that Turner was or had engaged in illegal activity.

Id. at 945. We further cautioned "that the [trial] court may consider only the evidence presented when the warrant was issued and may not rely on post hac justifications for the affidavit." Id.

Following this court's opinion, Turner argued to the trial court that these instructions precluded the court from hearing any evidence on the suppression motion and restricted the court to an examination of the four corners of the probable cause affidavit to determine whether reasonable suspicion for the search existed. The trial court rejected that argument, observing that the State could not have anticipated the need to include any pre-trash search information in the affidavit in light of the current state of the law.

On January 3, 2007, the trial court held a hearing on Turner's motion to suppress. The State presented evidence from Officer Jeffrey Dunscomb, the Dayton town marshall, as to what he heard and observed up to the time that he passed the information on to the Drug Task Force officers. The trial court denied Turner's motion to suppress, finding that the police officers had reasonable suspicion to conduct the trash search. The trial court also determined that this determination was not the result of a "post hoc justification" because it was based only on the information that was actually known to the officers at the time the warrant was sought. Appellant's App. p. 131-38.

Prior to trial, the State received permission to preserve the testimony of forensic chemist Kimberly Ivanyo through a videotaped deposition because she would be unavailable at trial. Ivanyo testified in her deposition about the weight of the cocaine she had tested. Although the State had not first elicited any information from Ivanyo about the calibration of the scale that she used to weigh the cocaine, Turner made no objection.

When the deposition was played for the jury, Turner objected to Ivanyo's testimony regarding the weight of the substances. Turner argued that the evidence was inadmissible because it was the State's burden to show that the scale had been properly calibrated. The trial court overruled the objection and allowed Ivanyo's testimony regarding the weight of the cocaine that had been seized. At the conclusion of the trial, Turner moved for his class A felony convictions to be reduced to class B felonies based on the lack of evidence regarding the accuracy of the scale that Ivanyo had used. The trial court denied that motion, finding that Turner had not objected at the appropriate time.

Turner was found guilty on all six counts. At sentencing, the trial court merged the cocaine possession conviction into the cocaine dealing conviction on double jeopardy grounds and did not enter judgment of conviction on the possession count. Turner was sentenced to twenty years for dealing in cocaine as a class A felony, and the remaining sentences that were imposed were ordered to run concurrently with that sentence. Turner now appeals.

DISCUSSION AND DECISION

I. Instructions on Remand

Turner first claims that his convictions must be set aside because the trial court failed to follow this court's instructions on remand with regard to the suppression hearing. Specifically, Turner contends that the trial court erred because it considered evidence beyond that which was set forth in the probable cause affidavit in support of the search warrant for his residence when determining whether the police officers had reasonable suspicion to search his trash.

Notwithstanding Turner's claim, this court's order on remand simply stated that the trial court could not consider "post hoc justifications" for the affidavit. Turner, 843 N.E.2d at 945. Not surprisingly, the probable cause affidavit in support of the search warrant contained virtually no information as to why the police decided to search Turner's trash because such information was irrelevant under the law that applied before the Litchfield standard was announced. Indeed, at the time of the trash pull, the police officers were not required to satisfy the reasonable suspicion standard to justify the trash search. However, it does not necessarily follow that the State lacked a reasonable suspicion to pull Turner's trash when the search warrant was sought.

It is apparent that the subsequent hearing on Turner's motion to suppress was the first time that the State was placed on notice that it was required to offer evidence in support of the reasonable suspicion standard. In our view, the presentation of that evidence does not rise to a level of "post hoc justification" for the search. In other words, there is no showing that the State was relying on information gained after the warrant was obtained to justify the issuance of the search warrant. Rather, the evidence presented at the suppression hearing demonstrated that the State was relying only on information that was known to the police officers when the search warrant was sought. In fact, no evidence had been presented to the trial court in Litchfield on the issue of reasonable suspicion because that requirement had not previously existed. 824 N.E.2d at 364. Moreover, nothing in Litchfield suggested that the trial court was limited to the evidence that had already been placed before it. The trial court in Litchfield held another evidentiary hearing as it was instructed to do on remand, and it considered evidence...