Opinion
23A-CR-538
08-28-2023
Brandon Wilkerson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jay Circuit Court The Honorable Brian D. Hutchison, Judge Trial Court Cause No. 38C01-2205-F4-11
ATTORNEY FOR APPELLANT Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] Brandon Wilkerson appeals his conviction for level 4 felony unlawful possession of a firearm by a serious violent felon. We affirm.
Facts and Procedural History
[¶2] On April 30, 2022, Deputy Eric Smitley of the Jay County Sheriff's Department responded to a call regarding "an unknown vehicle sitting in the driveway" and a "suspicious male" at a private property near Bryant, Indiana. Tr. Vol. 2 at 40, 48, 54. Upon arrival in his marked police vehicle, Deputy Smitley observed a man in an older model Cadillac parked in the driveway of the property owned by Jason Oswalt. Cory Shepherd, another deputy with the Jay County Sheriff's Department, arrived in a different patrol vehicle. Neither police vehicle had its lights or sirens activated.
[¶3] Deputy Smitley made contact with Oswalt and also spoke with Wilkerson, who was in the parked Cadillac. Wilkerson stated that his family owned the property "three generations ago[,]" and "he was out enjoying the weather." Id. at 41. When asked, Wilkerson provided an identification card. Deputy Smitley used the card to run a search, which revealed that Wilkerson's driver's license was suspended.
[¶4] Oswalt wanted Wilkerson off his property, but the latter's suspended driver's license prohibited him from legally driving the Cadillac away from the premises. The deputies stated that Wilkerson was free to go and needed to leave the property per the owner's request. The deputies gave him directions to a nearby gas station, offered to drive Wilkerson there, and suggested that he could call someone to pick him up. Wilkerson chose not to accept the ride, instead setting off on foot away from the scene. But, after a couple minutes, he returned to the deputies, who were at their vehicles. Again, Wilkerson was asked if he would like a ride, and this time he agreed. The deputies stated that they needed to do a patdown of his outer clothing to check for weapons before he could enter a police vehicle. Wilkerson consented, saying "[T]hat's fine." Id. at 58. Deputy Shepherd patted him down and felt in his waistband the handle of what turned out to be a loaded 9mm handgun.
[¶5] At that point, the deputies detained Wilkerson and asked if he had a license to carry the handgun. Wilkerson replied affirmatively and gave Deputy Smitley permission to retrieve it from his wallet. Deputy Smitley located an Anderson Police Department detective's business card but no permit. The deputies then requested that dispatch run a license check, which revealed that Wilkerson was not permitted to carry a handgun. He had been convicted of armed robbery and thus was deemed a serious violent felon. Wilkerson was arrested, and Deputy Smitley transported him while Deputy Shepherd performed an inventory search of the Cadillac.
Effective July 1, 2022, the Indiana General Assembly amended Indiana Code Section 35-47-2-1 to remove the prior license-to-carry requirement. The incident at issue occurred when Indiana still required a license to carry.
[¶6] In May 2022, the State charged Wilkerson with three counts: level 4 felony unlawful possession of a firearm by a serious violent felon, level 6 felony theft of a firearm, and misdemeanor carrying a handgun without a license.
[¶7] In mid-January 2023, Wilkerson filed a motion to suppress evidence (specifically, the weapon) "found as the result of a pat down search and subsequent search of a vehicle[.]" Appellant's App. Vol. 2 at 22. Challenging the legality of the patdown and "subsequent warrantless search" of the vehicle, he cited both the Fourth Amendment to the U.S. Constitution and the Indiana Constitution. Id. Thereafter, the State amended the information by removing the theft charge. Id. at 30. Wilkerson filed a memorandum in support of his motion to suppress in which he asserted, inter alia, that the "totality of the circumstances and the conduct of law enforcement officers rendered any consent invalid." Id. at 31-33. In late January 2023, the trial court held a suppression hearing and denied Wilkerson's motion.
[¶8] In February 2023, a jury found Wilkerson guilty of the remaining two charges. The trial court entered judgment only on the felony conviction. At a March 2023 hearing, the trial court heard evidence, ordered Wilkerson to serve nine years in the Indiana Department of Correction, and specified that he serve it consecutive to a sentence in another cause. Appellant's App. Vol. 2 at 79; Tr. Vol. 2 at 88. This appeal ensued.
Discussion and Decision
[¶9] On appeal, Wilkerson reasserts his challenge to the voluntariness of his consent to the patdown. Appellant's Br. at 10-11; see also Tr. Vol. 2 at 30 (trial court describing Wilkerson's argument as consent resulting from duress).
[¶10] Not having filed an interlocutory appeal of the denial of his suppression motion, Wilkerson is appealing the admission of evidence at trial. See Washington v. State, 784 N.E.2d 584, 586-87 (Ind.Ct.App. 2003) (explaining that issue is appropriately framed as challenge to admission of evidence at trial when defendant objected at trial and appeals from a completed trial, even though defendant filed retrial motion to suppress). Generally, we review a trial court's decision on the admission of evidence for an abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind.Ct.App. 2014), trans. denied (2015). "A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law." Id. However, the constitutionality of a search or seizure is a matter of law that we review de novo. Holloway v. State, 69 N.E.3d 924, 929 (Ind.Ct.App. 2017), trans. denied. When making such a determination, we "consider the foundational evidence from the trial as well as the evidence from the motion to suppress hearing which is not in direct conflict with the trial testimony." Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App. 2005).
[¶11] The warrant requirement of the Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. Berry v. State, 704 N.E.2d 462, 464 (Ind. 1998). Fourth Amendment protections apply when a person has an actual subjective expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable. Alexander v. State, 947 N.E.2d 966, 967 (Ind.Ct.App. 2011).
[¶12] "Many search and seizure issues are resolved in the same manner under both the Indiana and Federal Constitutions." Campos State, 885 N.E.2d 590, 596 (Ind. 2008). "Under both Constitutions, it is axiomatic that a search requires a warrant unless certain narrow exceptions apply," one of which is a search based on lawful consent. State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). Consent to a search is valid when given voluntarily and knowingly, but not valid when it follows fraud, duress, fear, intimidation, or a submission to the supremacy of the law. Garcia-Torres v. State, 949 N.E.2d 1229, 1237 (Ind. 2011); Wahl v. State, 148 N.E.3d 1071, 1082 (Ind.Ct.App. 2020), trans. denied. Consent turns on an examination of the totality of the circumstances, which includes, but is not limited to, such factors as the defendant's education and intelligence, whether the defendant has had previous encounters with law enforcement, whether the defendant was informed of his Miranda rights, whether the officer claimed authority to search without consent, whether the defendant was told he had the right to refuse consent, whether the officer was engaged in any illegal action prior to the request, and whether the officer was deceptive as to his true identity or the purpose of the search. Cox v. State, 160 N.E.3d 557, 561-62 (Ind.Ct.App. 2020).
[¶13] There is no indication that Wilkerson had any educational or intellectual deficiencies that affected the voluntariness of his consent. As for prior history, Wilkerson has had several previous encounters with law enforcement. Although Wilkerson was not informed of his Miranda rights prior to the patdown, he had not been taken into custody or interrogated, and thus Mirandizing was not required. To the contrary, he had been told that he was free to leave, and indeed he initially did leave. Neither deputy raised his voice, touched Wilkerson, or drew a weapon; no sirens or lights were activated on the patrol cars. See McLain v. State, 963 N.E.2d 662, 667 (Ind.Ct.App. 2012) (discussing factors considered when determining whether reasonable person would not believe he was free to leave: presence of multiple officers, display of weapon, physical touching, tone of voice), trans. denied.
Long ago, Miranda v. Arizona, 384 U.S. 436 (1966) held that when officers question a person who has been taken into custody or otherwise deprived of his freedom of action in any significant way, that person must first be warned of his right to remain silent, that any statement he chooses to make may be used as evidence against him, and that he has a right to the presence of a retained or appointed attorney. Theobald v. State, 190 N.E.3d 455, 459 (Ind.Ct.App. 2022), trans. denied. Miranda is triggered only if the person is subject to "custodial interrogation." State v. E.R., 123 N.E.3d 675, 679 (Ind. 2019), cert. denied (2020). Custody under Miranda occurs when two criteria are met: (1) "the person's freedom of movement is curtailed to the degree associated with formal arrest" and (2) "the person undergoes the same inherently coercive pressures as the type of station house questioning at issue in Miranda." State v. Diego, 169 N.E.3d 113, 117 (Ind. 2021). "Interrogation" for purposes of Miranda "constitutes questions, words, or actions that the officer knows or should know are reasonably likely to elicit an incriminating response." State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017).
[¶14] The deputies did not claim that they could pat Wilkerson down without his consent, nor did they insist that he enter one of their patrol cars. Rather, the deputies simply explained that if he were to catch a ride with them, they needed to pat him down for their own safety before they could permit him inside one of their police vehicles. We cannot say that the deputies' concern for safety was unreasonable. Cf. Wilson v. State, 745 N.E.2d 789, 792-93 (Ind. 2001) (acknowledging that when officer places person in patrol car that will be occupied by officer, there is heightened risk of substantial danger to those in car if detainee is armed; noting "it is generally reasonable for a prudent officer to pat-down persons placed in his patrol car, even absent a belief of dangerousness particularized to the specific detainee"; but not endorsing placement of routine traffic stop violator in police car simply to justify patdown).
While Wilson concerned a detainee rather than a consensual situation, we find it instructive here.
[¶15] Wilkerson declined the first offer for one of the deputies to drive him to a nearby gas station and instead chose to leave the premises on foot. However, after walking to the edge of the property, he opted to return, accepted the second offer for a ride and then consented to the patdown. Had Wilkerson not wished to be patted down, he could have chosen to walk away again. Cf. Cunningham, 26 N.E.3d at 27 (noting that defendant passenger knew that he could have avoided "unwanted search simply by choosing not to get out of his truck"). Wilkerson makes no claim that the deputies hid their identities or the purpose of the patdown. Wilkerson made no assertion in his suppression motion or at trial that the deputies engaged in illegal action prior to the requested patdown.
[¶16] The totality of the circumstances convinces us that Wilkerson's consent to a patdown before entering a police vehicle, which would transport him to a nearby gas station, was voluntary. See Richey v. State, 210 N.E.3d 329, 340 (Ind.Ct.App. 2023) ("A reasonable person in Richey's position would have felt free to decline the offer of a courtesy ride or to express a desire to continue traveling on foot, but Richey did neither."). Wilkerson's voluntary consent negated any constitutional issue with the patdown. Hence, the loaded weapon, found during the patdown, was legally obtained by the deputies. Therefore, the trial court did not abuse its discretion when it admitted evidence of the weapon.
Our review of Odyssey, the case management system, shows that any transfer petition for Richey was due on August 14, 2023. As of August 21, 2023, no petition has been filed, but the Richey opinion is not yet labeled "certified."
[¶17] Wilkerson also asserts a new theory. He now contends that, "when requesting his identification and running certain checks with dispatch," law enforcement illegally detained him without reasonable suspicion or probable cause. Appellant's Br. at 7, 9. In his pretrial motion to suppress and memorandum in support thereof, Wilkerson asserted that evidence found during the patdown should be barred because the "totality of the circumstances and the conduct of law enforcement officers rendered any consent invalid." Appellant's App. Vol. 2 at 32. At trial, Wilkerson objected to the admission of the weapon "based on [his] pre trial motion." Tr. Vol. 2 at 44. That is, he continued to maintain that his consent to the patdown was not voluntary. Upon confirming that he was objecting "for the same reasons as previously given," the trial court overruled Wilkerson's objection. Id. Neither in his suppression motion nor at trial did Wilkerson argue that when he gave his identification card to the deputies, and the deputies provided it to dispatch to run a quick search, such action was an illegal detention. A defendant may not object to the admission of evidence on one basis at trial and then raise a different basis on appeal. Bradfield v. State, 192 N.E.3d 933, 935 (Ind.Ct.App. 2022). Thus, Wilkerson waived this claim. See also Griffin v. State, 16 N.E.3d 997, 1006 (Ind.Ct.App. 2014) (noting that waiver rule protects integrity of trial court, which cannot be found to have erred regarding issue not presented).
[¶18] Despite waiver, we briefly note that there are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App. 2000), trans. denied. First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has occurred or is about to occur. See Clark v. State, 994 N.E.2d 252, 263 (Ind. 2013) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Overstreet, 724 N.E.2d at 663. A consensual encounter does not evolve into a stop or seizure so long as a reasonable person would feel free to disregard the police and go about his business. Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003).
[¶19] Here, the deputies responded to a call about a suspicious male in an unknown vehicle on the driveway at a private address. Arriving in vehicles without sirens or lights activated and without guns drawn, they observed Wilkerson sitting in his parked car on Oswalt's property. He told the deputies that his family used to own the property and that he was enjoying the weather, and then he provided his identification. When a check was run, it was determined that Wilkerson did not have a valid driver's license. Discussion ensued about how he would leave the private property and how his automobile might be moved. There is no indication that the deputies retained Wilkerson's identification or kept him at the scene for a long period of time. Cf. id. at 533 (when an officer "returned to Finger's car after running license checks and did not return his identification, what arguably began as a consensual encounter evolved into an investigative stop."). Again, there is no evidence that the deputies threatened him, displayed their weapons, or conveyed that he had to ride with them. Not only did Wilkerson feel free to leave, he did leave. Accordingly, we are unmoved by Wilkerson's belated contention that under these particular circumstances merely requesting and running a check on his identification transformed the consensual interaction on Oswalt's property into a detention.
Moreover, "behavior that supports a reasonable suspicion that an individual is on another's private property without the owner's permission may justify a Terry stop." Mullen v. State, 55 N.E.3d 822, 830 n.3 (Ind.Ct.App. 2016).
[¶20] Finally, we acknowledge that in a portion of one paragraph of his appellate brief, Wilkerson seems to take issue with the deputies' investigation of whether he had a permit to carry the weapon discovered during the patdown. Appellant's Br. at 9. However, Wilkerson neither raised this concern in the trial court nor cogently developed it on appeal. Thus, it too is waived.
Wilkerson might be asserting that somehow Indiana Code Section 35-47-2-1's new version should have applied to him despite the fact that he committed his offense before the revised statute took effect. Interestingly, another panel of this court recently addressed whether permitless carry should apply retroactively. See Lawrence v. State, --- N.E.2d ---, 2023 WL 4611921, *2 (Ind.Ct.App. July 19, 2023) ("Because the 2022 amendment to Section 35-47-2-1 is not remedial, it does not apply retroactively[.]"). However, Lawrence is not yet certified, and Wilkerson's waiver obviates the need for us to reach the issue.
[¶21] Affirmed.
Brown, J., and Felix, J., concur.