Shaquille Washington v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 8:27 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 Timothy J. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shaquille Washington, May 25, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1610-CR-2400 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G03-1603-F3-11908

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2400 | May 25, 2017 Page 1 of 10

STATEMENT OF THE CASE [1] Appellant-Defendant, Shaquille Washington (Washington), appeals his

conviction for armed robbery, a Level 3 felony, Ind. Code § 35-42-5-1(1). [2] We affirm.

ISSUE [3] Washington presents us with one issue on appeal, which we restate as:

Whether the trial court committed fundamental error in admitting evidence

obtained in violation of his Fourth Amendment rights.

FACTS AND PROCEDURAL HISTORY [4] In March of 2016, a series of armed robberies occurred of people who had

frequented the PLS Check Cashing (PLS) at 38th Street and Moeller Road in

Indianapolis, Indiana. The victims would be robbed as they returned to their

residence or were exiting their vehicle. One of the victims had provided the

Covert Robbery Unit of the Indianapolis Metropolitan Police Department with

the license plate number of a silver Lexus. After receiving the license plate

number, the Unit petitioned for a GPS warrant to place a tracking device on the

vehicle. Upon obtaining the warrant, the Covert Robbery Unit started

surveillance on the vehicle. [5] From March 7 to March 25, 2016, the Lexus visited the PLS parking lot almost

every night. On March 25, 2016, the Unit commenced surveilling the vehicle at

8:00 p.m. Jonathan Haynes, a Detective with the Indianapolis Metropolitan

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Police Department and a member of the Covert Robbery Unit (Detective

Haynes), observed the Lexus, with two occupants, drive though the PLS

parking lot twice, only to return a few minutes later. After returning a second

time, the Lexus backed into a parking spot across from the PLS entrance. The

car waited approximately six minutes and then appeared to follow a white SUV

out of the lot before making an abrupt U-turn and returning to the PLS parking

lot. Sixteen minutes later, the Lexus followed a woman driving a green car out

of the parking lot. [6] The Lexus tailed the green car to a restaurant’s parking lot. When he passed by

the restaurant’s parking lot, Detective Haynes noticed “a woman standing in

front of her car with her hands up, ducking and diving in front of her car, and

[he] [saw] a male with a hooded sweatshirt over his head, with his arm

extended out as if to be holding that person at gunpoint.” (Transcript pp. 10-

11). The driver’s side door of the Lexus was open. Detective Haynes had to

travel just a little bit down the street before he could make a U-turn and as he

pulled into the restaurant’s parking lot, the Lexus was driving away. [7] Detective Haynes found the woman, later identified as Fatoumeh Bah (Bah),

seated in her car, crying. Although there was a language barrier, Bah was able

to communicate to Detective Haynes that she was the victim of a robbery and

that her purse, which had approximately $423 in it, had been taken. Detective

Haynes radioed the officers that were following the Lexus to confirm that a

robbery had occurred.

Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2400 | May 25, 2017 Page 3 of 10 [8] Police officers conducted a felony stop 1 of the Lexus. The driver of the car,

identified as Brian Artis (Artis), first exited the car and was placed under arrest

and handcuffed. The police officers then ordered the passenger, identified as

Washington, to exit the car and subsequently placed him under arrest. When

Washington was searched, the officers located $280 in his pocket. A total of

$143 was tucked away between the center console and the driver’s seat which,

together with the money found on Washington, totaled the amount taken in the

robbery. Bah’s credit card was on the floor mat of the car’s passenger side,

where Washington had been sitting. Detective Haynes brought Bah to the

Lexus to identify the robber. She was hesitant in her identification: although

she initially pointed to Artis because of his clothing, at trial she testified that the

passenger of the Lexus robbed her, not the driver. [9] On March 29, 2016, the State filed an Information, charging Washington with

armed robbery, a Level 3 felony. On July 29, 2016, Washington filed a motion

to suppress the evidence that was obtained during a warrantless search of his

person. The trial court conducted a hearing on Washington’s motion on

August 5, 2016, and denied his motion on August 30, 2016. Washington filed a

motion to certify the order for interlocutory appeal, which was denied by the

trial court on September 2, 2016.

1 A felony stop is “a tactical stop where [officers] approach the vehicle and get the occupants out as quickly as possible and secure them. It could be because a felony just occurred, a weapon, it’s more for an officer safety and tactical issue.” (Tr. p. 48).

Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2400 | May 25, 2017 Page 4 of 10 [10] On September 8, 2016, the trial court conducted a jury trial. At trial,

Washington did not object to the admission of the evidence obtained pursuant

to the warrantless search. At the close of the evidence, the jury returned a

guilty verdict. On September 27, 2016, the trial court sentenced Washington to

nine years executed, with five years suspended and one year of probation. [11] Washington now appeals. Additional facts will be provided as necessary.

FACTS AND PROCEDURAL HISTORY [12] Washington contends that the warrantless search that led to the discovery of

$280 of United States currency on his person was improper under the Fourth

Amendment as the officers had no probable cause to arrest and handcuff him.

Because Washington challenges the trial court’s ruling after proceeding to trial

and not as an interlocutory appeal after the pretrial ruling, “the question of

whether the trial court erred in denying a motion to suppress is no longer

viable.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013) (quoting Cochran v.

State, 843 N.E.2d 980, 982 (Ind. Ct. App. 2006), reh’g denied, trans. denied, cert.

denied, 549 U.S. 1122 (2007)). Direct review of the denial of a motion to

suppress is only proper when the defendant files an interlocutory appeal. Clark,

994 N.E.2d at 259. Accordingly, the appeal is best framed as challenging the

admission of evidence at trial. Id. The general admission of evidence is a

matter we leave to the discretion of the trial court. Id. at 259-60. We review

these determinations for abuse of that discretion and reverse only when

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admission is clearly against the logic and effect of the facts and circumstances

and the error affects a party’s substantial rights. Id. [13] During the pre-trial proceedings, Washington filed a motion to suppress the

challenged evidence which, after a hearing, was denied by the trial court.

During trial, Washington did not object to the testimony and admission of the

currency found during a search of his person. To preserve an evidentiary issue

for appellate review, a defendant must contemporaneously object at trial, even

after filing a pretrial motion to suppress. Brown v. State, 929 N.E.2d 204, 207

(Ind. 2010). 2 A failure in objecting at trial constitutes waiver of review unless

an error is so fundamental that it denied the accused a fair trial. Absher v. State,

866 N.E.2d 350, 355 (Ind. Ct. App. 2007). Our supreme court made the

2 Washington’s Reply Brief is entirely devoted to challenging the well-established principle of the necessity raising a contemporaneous objection to the contested evidence at trial. “[B]ecause he had already fully apprised the court of the issue in pre-trial proceedings,” Washington claims that any contemporaneous objection at trial would have been “useless.” (Appellant’s Reply Br. pp. 4, 5). In support, Washington refers this court to Justice Dickson’s dissent in Clausen v. State, 622 N.E.2d 925, 930 (Ind. 1993) (Dickson, J. dissenting), in which Justice Dickson disagreed with the majority in applying a strict contemporaneous objection rule. Justice Dickson opined: [T]he majority applies an arbitrary and superficial technicality which fails to serve a purpose in this case. The reasons that support our requirement for contemporaneous objection were fully satisfied in the [r]ecord. It is agreed by both parties and the trial court that a contemporaneous reassertion of the objection made in limine would have been overruled. To apply the contemporaneous objection rule is to impose a purposeless procedural formality based on a fictitious rationale under the circumstances of this case. It is an offense to our obligation to justly decide cases on their merits. Id. at 929-30. However, Indiana courts have consistently held that a ruling on a pretrial motion does not determine the ultimate admissibility of the evidence; that determination is made by the trial court in the context of the trial itself. See Baker v. State, 425 N.E.2d 98, 101 (Ind. 1981). By requiring that an objection be made during the trial at the time when the testimony is offered into evidence, the trial court is able to consider the evidence in the context in which it is offered and is able to make a final determination in admissibility. Clausen, 622 N.E.2d at 928. We will not deviate from this well-established legal principle.

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doctrine of fundamental error only available in egregious circumstances. Id.

The mere fact that error occurred and that it was prejudicial will not satisfy the

fundamental error rule. Id. Likewise, it is not enough, in order to invoke this

doctrine, to urge that a constitutional right is implicated. Id. To qualify as a

fundamental error, “an error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible” and must “constitute a blatant

violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process.”

Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (internal quotations and

citations omitted). [14] The Fourth Amendment to the United States Constitution states that “[t]he

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. CONST. AMEND. IV. A warrantless

search or seizure is per se unreasonable, and the State bears the burden to show

that one of the well-delineated exceptions to the warrant requirement applies.

Wilkinson v. State, 70 N.E.3d 392, 402 (Ind. Ct. App. 2017). [15] One such exception relevant to the circumstances of the case is a search

incident to a lawful arrest. Id. at 403. A suspect is considered under arrest

when a police officer interrupts his freedom and restricts his liberty of

movement. Id. The fact that a police officer does not inform a defendant he is

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under arrest prior to a search does not invalidate the search incident to arrest

exception as long as there is probable cause to make an arrest. Id. Probable

cause for an arrest exists if at the time of the arrest the officer has knowledge of

facts and circumstances which would warrant a man of reasonable caution to

believe that the suspect has committed the criminal act in question. Id. A

police officer’s subjective belief concerning whether he had probable cause to

arrest a defendant has no legal effect. Id. The amount of evidence necessary to

meet the probable cause requirement is determined on a case by case basis.

White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App. 2015), trans. denied. It is

grounded in notions of common sense, not mathematical precisions. Id. As

such, the probable cause standard is a practical, nontechnical conception that

deals with the factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act. Id. The level of proof

necessary to establish probable cause is less than that necessary to establish guilt

by a reasonable doubt. Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App.

1995). Probable cause, in fact, requires only a fair probability of criminal

activity, not a prima facie showing. Id. A search incident to a lawful arrest

allows the arresting officer to conduct a warrantless search of the arrestee’s

person and the area within his immediate control. Wilkinson, 70 N.E.3d at 402. [16] Based on the circumstances before us, we conclude that the facts within the

officers’ knowledge were sufficient to warrant a reasonable belief that

Washington was involved in Bah’s robbery. The silver Lexus, in which

Washington was a passenger at the time of his warrantless seizure, had been

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determined to be a suspect vehicle in a string of armed robberies and had been

judicially placed under GPS surveillance for the past several weeks. On the

night of March 25, 2016, Detective Haynes was following the Lexus when it

was parked in the PLS parking lot. The detective had observed two occupants

in the vehicle. When the Lexus started following Bah’s car, Detective Haynes,

together with other surveilling officers, commenced pursuit. The Lexus

followed Bah’s car into a restaurant’s parking lot. When Detective Haynes

passed the parking lot, he noticed Bah standing in front of her car being held at

gunpoint by a male with a hooded sweatshirt. He also observed the open

driver’s side door of the Lexus. When Detective Haynes arrived in the

restaurant’s parking lot, Bah confirmed that she had been robbed. Detective

Haynes sent out a confirmed robbery report to all surveilling officers, and the

Lexus was stopped. [17] Detective Jeremy Ingram (Detective Ingram), testified that Washington was

ordered out of the Lexus and placed in handcuffs. He assured the trial court

that “[t]he occupants of the vehicle were under arrest when I had them stop.”

(Tr. p. 35). Within five to ten minutes of exiting the car, Washington was

searched and the money was located on his person. At no point during the

entire surveillance did any officer observe anyone enter or exit the Lexus. [18] Although it could be argued based on Bah’s hesitant identification that

Washington was merely a passenger in the Lexus and was not a participant in

the robbery, our supreme court has observed that “a car passenger . . . will often

be engaged in a common enterprise with the driver, and will have the same

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interest in concealing the fruits or the evidence of their wrongdoing.” Wyoming

v. Houghton, 526 U.S. 295, 304-05 (1999). Accordingly, at the time of the arrest,

the officers knew that the occupants of the Lexus had just been involved in a

criminal act, i.e., the armed robbery of Bah. As such, they had probable cause

to arrest Washington and to search his person. Consequently, the trial court

did not commit an error, let alone a fundamental one, in admitting the

challenged evidence.

CONCLUSION [19] Based on the foregoing, we conclude that the trial court properly admitted the

evidence seized pursuant to a search incident to a valid arrest. [20] Affirmed. [21] Najam, J. and Bradford, J. concur

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