Justin Jones v. State of Indiana (mem. dec.)

J
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Nov 17 2020, 8:37 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David R. Hennessy                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Angela N. Sanchez
                                                        Assistant Section Chief, Criminal
                                                        Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin Jones,                                           November 17, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-512
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant W.
Appellee-Plaintiff.                                     Hawkins, Judge
                                                        Trial Court Cause No.
                                                        49G05-1802-F2-5853



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020                   Page 1 of 12
                                       Statement of the Case
[1]   Justin Jones appeals the trial court’s denial of his motions to suppress evidence

      obtained following a warrantless search of a cell phone and a subsequent search

      of that same cell phone pursuant to a search warrant. Jones raises two issues

      for our review, which we consolidate and restate as follows: whether the trial

      court erred when it denied his motions to suppress.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 3, 2017, Sarah Thompson was at home with her two small children.

      At some point that night, two white males, one masked and one unmasked,

      kicked in the door to her home. The men “tied [Thompson] up” and “assaulted

      her” while they passed a handgun “back and forth.” Appellant’s App. Vol. 2 at

      37. The men held Thompson and her children for several hours while they

      searched the house. Ultimately, the men stole jewelry, shoes, purses, gaming

      consoles, and a vehicle. Officers with the Indianapolis Metropolitan Police

      Department (“IMPD”) responded to Thompson’s house at 1:52 a.m. on June 4.


[4]   Later that morning, IMPD officers responded to a report that shots had been

      fired at a different location, and they discovered the stolen vehicle. An

      individual then told officers that she had heard gun shots and had seen two

      white males run from the truck and get into another vehicle. Officers found a

      Samsung cell phone located “next to” the truck “in the direction the suspects



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 2 of 12
      fled.”

Id. at 38.

Officers also found an LG flip phone in the vehicle. Officers

      collected the phones and transported them to the IMPD property room.


[5]   On June 15, IMPD Detective James Hurt went to the property room to look at

      the phones recovered from in and around the stolen vehicle. On the Samsung

      phone, which was not password protected, Detective Hurt saw a picture of

      Thompson and her injuries from the offense on the home screen. Detective

      Hurt then contacted Thompson and asked her about the picture. Thompson

      informed Detective Hurt that she had sent that picture to Jones. Detective Hurt

      also learned that the LG flip phone belonged to either Thompson or her

      boyfriend.


[6]   On June 23, officers sought a warrant to search the Samsung phone. In support

      of that request, Detective Hurt filed an affidavit in which he outlined the offense

      that had occurred on June 4. He further indicated that officers had responded

      to a call of shots fired and found the phone next to the stolen vehicle. Detective

      Hurt did not include any information regarding the picture of Thompson he

      had found on the phone’s home screen. He then indicated that he was looking

      for data that “is indicia of ownership,” or that would constitute “fruits,

      instrumentalities, and/or evidence of the crime” of robbery. Ex. at 13

      (emphasis removed). The trial court found that probable cause existed and

      issued a warrant that authorized officers to search the phone for “[a]ll as

      described and detailed in the page(s) titled: ‘List of Property, Objects, Things,

      Information, or Persons to be Seized or Produced.’”

Id. at 18

(emphasis

      removed).

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 3 of 12
[7]   IMPD Detective Grant Melton searched the phone and found messages and

      photographs connecting the phone to Jones, including the picture that

      Thompson had sent to Jones of her in the hospital. See Appellant’s App. Vol. 2

      at 40. Detective Melton also analyzed the phone’s location information and

      determined that Jones’ cell phone had been in the “same neighborhood” as

      Thompson’s house on June 4.

Id. at 41.

The State then charged Jones with

      burglary, as a Level 2 felony; robbery, as a Level 3 felony; criminal

      confinement, as a Level 3 felony; kidnapping, as a Level 3 felony; kidnapping,

      as a Level 5 felony; and auto theft, as a Level 6 felony.


[8]   Jones filed a motion to suppress the results of Detective Melton’s search of his

      cell phone. In that motion, Jones raised numerous issues and asserted that the

      search of the cell phone violated his rights under the Fourth Amendment to the

      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution. The State responded and asserted that Jones had abandoned his

      phone and, thus, that he lacked standing to challenge the searches. On April

      18, 2019, the trial court held a hearing on Jones’ motion. At that hearing,

      Detective Hurt testified that, when he looked at the phone on June 15, he did

      not know that the phone was “associated with” Jones. Tr. at 48. He further

      testified that the photo of Thompson “popped up” on the home screen and that

      he “didn’t push a button” on the phone.

Id. at 52. [9]

  Jones then filed a motion to suppress the results of the initial search of the cell

      phone. Jones asserted that Detective Hurt’s actions amounted to a search of the

      phone, which Detective Hurt had conducted without a warrant. The State

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 4 of 12
       responded and again claimed that Jones lacked standing because he had

       abandoned the phone. The trial court held a hearing on Jones’ motion to

       suppress the warrantless search. At the beginning of the hearing, the court

       “presume[d]” that Jones had standing.

Id. at 65.

During the hearing, Detective

       Hurt testified that, when he picked up the phone on June 15, he simply saw “a

       picture of the victim in the hospital” and “[n]othing else.”

Id. at 75.

But he

       testified that, “no matter what” had happened on June 15, he was going to get a

       search warrant for the phone because officers had found it next to a stolen

       vehicle.

Id. at 74.

At a subsequent hearing, the court stated that the search

       warrant was “adequate” and orally denied Jones’ motion to suppress evidence

       that Detective Melton had found on the phone.

Id. at 166. [10]

  Jones then filed a motion to reconsider. Following a hearing, the court entered

       an order in which it indicated that it had “re-examined the record before it by

       going back to the beginning of the argument and moving through the sub-

       issues.” Appellant’s App. Vol. 2 at 31. The court then stated that, “[u]pon

       reflection,” the phone had been abandoned and, thus, that Jones did not have

       standing to challenge the searches of the phone.

Id. Accordingly, the trial

court

       denied Jones’ motions to suppress.


[11]   Thereafter, Jones filed a motion to certify the court’s order for interlocutory

       appeal in which Jones raised a number of questions, including whether the

       State had established that the phone was abandoned, whether Detective Hurt’s

       actions on June 15 amounted to a search, and whether the second search of the

       phone was proper. See Appellant’s App. Vol. 4 at 102-04. The court granted

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 5 of 12
       Jones’ motion and ordered “that the Court’s findings and orders regarding

       standing and abandonment are hereby certified for interlocutory appeal,” which

       we accepted.

Id. at 165.

This interlocutory appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[12]   Jones appeals the trial court’s denial of his motions to suppress. As our

       Supreme Court has explained:


               Trial courts enjoy broad discretion in decisions to admit or
               exclude evidence. When a trial court denies a motion to suppress
               evidence, we necessarily review that decision deferentially,
               construing conflicting evidence in the light most favorable to the
               ruling. However, we consider any substantial and uncontested
               evidence favorable to the defendant. . . . If the trial court’s
               decision denying a defendant’s motion to suppress concerns the
               constitutionality of a search or seizure, then it presents a legal
               question that we review de novo.


       Marshall v. State, 

117 N.E.3d 1254

, 1258 (Ind. 2019) (cleaned up).


[13]   Jones specifically contends that the court erred when it denied his motions to

       suppress because the searches of his phone violated his rights under the Fourth

       Amendment and Article 1, Section 11 of the Indiana Constitution. As this

       Court has recently stated:


               Both the Fourth Amendment to the United States Constitution
               and Article 1, Section 11 of the Indiana Constitution provide that
               the right of the people to be secure in their persons, houses,
               papers and effects, against unreasonable searches and seizures.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 6 of 12
                These protections against unreasonable governmental searches
                and seizures are a principal mode of discouraging lawless police
                conduct.


       Harrison v. State, 

32 N.E.3d 240

, 250 (Ind. Ct. App. 2015) (cleaned up).


                                                 Abandonment

[14]   On appeal, Jones first asserts that the court erred when it denied his motions to

       suppress based on its conclusion that he had abandoned the phone and, thus,

       that he lacked standing to challenge the searches. It has long been held that

       abandoned property is not subject to protection under either the Fourth

       Amendment or Article 1, Section 11 of the Indiana Constitution. See

id. As such, a

person cannot abandon property and later claim that he had a

       protectable interest in that property. See

id. Whether property has

been

       abandoned is a question of intent, which can be ascertained from words, acts,

       or other objective facts. See State v. Belcher, 

725 N.E.2d 92

, 95 (Ind. Ct. App.

       2000).


[15]   Here, Jones contends that the State failed to produce any evidence to

       demonstrate an intent by Jones “to relinquish any privacy interest” in the

       phone. Appellant’s Br. at 21. Instead, he asserts that the “very nature” of the

       evidence in this case demonstrates “an accidental loss or theft.”

Id. at 20.

       However, we need not decide whether Jones had abandoned the phone. Even

       if we assume for the sake of argument that Jones had not abandoned the phone,

       as we explain below, Jones has not met his burden on appeal to demonstrate



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 7 of 12
       that the court committed reversible error when it denied his motions to

       suppress.


                                       Constitutionality of Searches

[16]   Jones next contends that the searches of his phone violated his constitutional

       rights. The State responds and asserts that this question is not properly before

       us because the only order the trial court certified for interlocutory appeal was its

       order concluding that Jones had abandoned the phone and, thus, that he lacked

       standing to challenge the searches. We cannot agree. As the State correctly

       points out, it is the trial court’s order, not the particular legal issue or question,

       that is certified for appellate review. See State v. Keller, 

845 N.E.2d 154

, 160

       (Ind. Ct. App. 2006). And, here, the order that the court certified for

       interlocutory appeal was an order on Jones’ motion to reconsider. That order

       necessarily incorporated and implicated its prior order denying the motion to

       suppress the evidence from the warrantless search and its prior finding that the

       search warrant was adequate, which orders the court entered after the parties

       had thoroughly briefed and argued those issues. As such, this question is

       properly before us, and we will consider Jones’ arguments regarding the

       constitutionality of the searches.


[17]   On appeal, the State relies entirely on its assertion that Jones had abandoned

       the phone and, thus, that he lacked standing to challenge the searches.

       However, while Jones vigorously argues that both searches violated his rights

       under the Fourth Amendment and Article 1, Section 11 of the Indiana

       Constitution, the State does not address those issues in its brief. “Where an
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 8 of 12
       appellee’s brief fails to address an issue raised by an appellant in the opening

       brief, it is the same, as to that issue, as though the appellee filed no brief.”

       Ferguson v. State, 

40 N.E.3d 954

, 957 (Ind. Ct. App. 2015). And when an

       appellee fails to file a brief on appeal, we may, in our discretion, reverse the trial

       court’s decision if the appellant makes a prima facie showing of reversible error.

       McGill v. McGill, 

801 N.E.2d 1249

, 1251 (Ind. Ct. App. 2004).


[18]   We initially address Jones’ contentions regarding the search of his phone

       pursuant to the search warrant. On this question, Jones raises a number of

       issues. In particular, Jones asserts that the search of his phone pursuant to the

       warrant violated his federal and state constitutional rights because the affidavit

       in support of the search warrant: contained only uncorroborated hearsay,

       contained stale information, and failed to establish a nexus between the phone

       and a crime. He also contends that the search violated his rights because the

       warrant failed to identify the specific item or items to be searched. In sum,

       Jones contends that the warrant lacked probable cause.


[19]   However, we need not address his specific contentions regarding the

       inadequacy of the search warrant. The lack of probable cause does not

       necessarily require the suppression of evidence obtained during a search

       conducted pursuant to a warrant. Snow v. State, 

137 N.E.3d 965

, 969 (Ind. Ct.

       App. 2019). “Indeed ‘the exclusionary rule does not require the suppression of

       evidence in reliance on a defective search warrant if the police relied on the

       warrant in objective good faith.’”

Id. (quoting Jackson v.

State, 

908 N.E.2d 1140

,

       1143 (Ind. 2009)). The good faith exception has been codified at Indiana Code

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 9 of 12
       Section 35-37-4-5(a) (2020), which provides that “the court may not grant a

       motion to exclude evidence on the grounds that the search or seizure by which

       the evidence was obtained was unlawful if the evidence was obtained by a law

       enforcement officer in good faith.” Accordingly, to establish reversible error,

       Jones must demonstrate both the lack of probable cause and the inapplicability

       of the good faith exception.

Id. But Jones does

not contend on appeal that the

       good faith exception does not apply.


[20]   There are two circumstances where the good faith exception does not apply.

Id. Those include situations

where the magistrate is misled by information in an

       affidavit that the affiant knew was false or would have known was false except

       for his reckless disregard for the truth or situations where the warrant was based

       on an affidavit so lacking in indicia of probable cause as to render official belief

       in its existence entirely unreasonable.

Id. at 969-70. [21]

  Jones has not addressed the good faith exception on appeal, and he has not

       directed us to any evidence in the record, or made any argument, that the

       magistrate was misled by information in the affidavit that Detective Hurt knew

       or should have known was false. See Ind. Appellate Rule 46(A)(8)(a). Neither

       does he assert that the warrant was so lacking in indicia of probable cause as to

       render belief in its existence entirely unreasonable. See

id. Accordingly, Jones has

failed to meet his burden on appeal to demonstrate that the trial court erred

       when it denied his motion to suppress the evidence obtained following the

       search conducted pursuant to the warrant.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 10 of 12
[22]   Jones also contends that the warrantless search of his phone violated his

       constitutional rights. However, the only evidence officers obtained pursuant to

       that search was a photograph of the victim in the hospital. Indeed, Detective

       Hurt testified that, when he looked at the phone on June 15, he saw the picture

       of Thompson in the hospital and “[n]othing else.” Tr. at 75. But Detective

       Melton discovered the same photograph when he searched the phone pursuant

       to the search warrant. See Appellant’s App. Vol. 2 at 40. In other words, even

       if we were to suppress the photograph found following the warrantless search,

       that evidence is still admissible as a result of the search pursuant to the warrant.


[23]   In addition, Jones contends that, when Detective Hurt saw the home screen of

       the Samsung phone, he searched the phone without a warrant. Jones further

       asserts it was the photograph of Thompson on the phone that caused Detective

       Hurt to seek a warrant. But Detective Hurt testified that he was going to obtain

       a warrant to search the phone “no matter what” because officers had found the

       phone in close proximity to a stolen vehicle. Tr. at 74. In his affidavit,

       Detective Hurt described the offense that had occurred at Thompson’s home,

       including the fact that the suspects had stolen a vehicle, and stated that officers

       had found the phone “next to” to that vehicle. See Ex. at 7-8. Thus, there is a

       direct connection between the phone and the vehicle and a “substantial basis”

       for a finding of probable cause. See Query v. State, 

745 N.E.2d 769

, 771 (Ind.

       2001). And Detective Hurt did not mention the photograph in the probable

       cause affidavit. As such, we cannot say that Detective Hurt’s request for the

       search warrant was based on the home-screen photograph, that the court relied


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 11 of 12
       on the photograph when it issued the search warrant, or that the warrant was

       tainted by an warrantless search.


[24]   Because Detective Melton found the same photograph of Thompson during the

       search pursuant to the warrant and because neither Detective Hurt nor the court

       relied on the photograph in support of the warrant, Jones has not demonstrated

       that the court committed reversible error when it denied his motion to suppress

       the photograph pursuant to the warrantless search.


[25]   In sum, we affirm the trial court’s order denying Jones’ motions to suppress.


[26]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-512 | November 17, 2020   Page 12 of 12

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