Hill v. State

169 N.E.3d 1150

Asher B. HILL, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-1956

Court of Appeals of Indiana.

FILED June 9, 2021

Attorney for Appellant: Alexander W. Robbins, Bedford, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Josiah J. Swinney, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Asher B. Hill (Hill), appeals his conviction for possession of methamphetamine, a Level 6 felony, Ind. Code § 35-48-4-6.1 ; two Counts of counterfeiting, Level 6 felonies, I.C. § 35-43-5-2(a) ; identity deception, a Level 6 felony, I.C. § 35-43-5-3.5(a), and his adjudication as a habitual offender, I.C. § 35-50-2-8(a).

[2] We affirm.

ISSUE

[3] Hill presents this court with one issue on appeal, which we restate as: Whether Hill's search and seizure violated the Fourth Amendment to the United States Constitution.

FACTS AND PROCEDURAL HISTORY

[4] In the early morning hours of December 17, 2019, Shirley Waller (Waller) and another employee were working at a CVS in Mooresville, Indiana. Around 3:00 a.m., Hill entered the store and attempted to purchase items with counterfeit twenty-dollar bills. Waller followed CVS protocol for identifying counterfeit money, and directed her coworker to call the police after confirming the bills were counterfeited. While the coworker was on the phone with dispatch, Waller saw Hill enter the passenger side of a car, with the vehicle exiting the CVS parking lot. Waller proceeded to talk to dispatch and waited for an officer to arrive.

[5] Approximately one minute after the 911 call, Captain Donald Kays (Officer Kays) and Lieutenant Daniel Whitley (Officer Whitley) of the Mooresville Police Department were alerted by dispatch that a 24-to-29-year-old male, wearing blue jeans, a dark colored jacket, and boots had passed counterfeit money at the CVS near State Road 67. They were also informed that "a bulldog logo" was located on the suspect's "pants or jacket." (Transcript Vol. III, p. 5).

[6] As he reached an intersection near the CVS, Officer Kays noticed a lone vehicle on the roadway and he radioed Officer Whitley that a large, black, four-door sedan, which he suspected to be a Crown Victoria, was travelling toward Officer Whitley on State Road 67. Officer Kays continued to travel to CVS where Waller confirmed Hill's description and clarified that the bulldog logo was located on the back of Hill's pants. Meanwhile, Officer Whitley saw what he believed to be a Crown Victoria¹ travelling northbound on State Road 67 and observed it turn into a nearby gas station. Officer Whitley proceeded to the gas station and parked next to the vehicle. When the driver of the vehicle exited the car to enter the gas station, Officer Whitley saw that he did not resemble the description of the suspect provided by dispatch. The officer then approached the passenger's window and noticed Hill in the passenger seat, wearing blue jeans, a dark colored jacket, and boots matching the description relayed earlier. The officer inquired where Hill had been before arriving at the gas station, to which Hill nervously replied with "vague" answers and "voluntary[ily] comment[ed] that he [didn't] understand why I'm harassing him." (Tr. Vol. III, p. 11). Officer Whitley stated a few times, "I just want to exclude you, you know, if you show me the back of your jacket, if you don't have a bulldog logo, it's not you." (Tr. Vol. III, p. 12). Still speaking through the window, Hill showed Officer Whitley the back of his jacket, which lacked a bulldog logo. Officer Whitley walked away in the direction of the gas station.

[7] While Officer Whitley spoke to the driver of the vehicle inside the gas station, Officer Kays pulled into the gas station parking lot and noticed the vehicle he has seen earlier on State Road 67. Unaware of the passenger's identity and Officer's Whitley's previous interaction, Officer Kays approached the vehicle and after the officer explained that he was investigating a counterfeit case, asked Hill to identify himself. Hill responded by cursing at the officer and telling him that he did not have "probable cause." (Tr. Vol. III, p. 69). Hill then gave his name as Brian Milton and a date of birth. Contacting dispatch, Officer Kays learned that the name and date of birth were not on file in Indiana. When Officer Kays shared this information with Hill, Hill advised that his license was through California. Again, dispatch informed Officer Kays that this license did not exist. Officer Kays asked Hill a second time to state his name to which Hill replied with Jeffrey Keys, Jr. with a date of birth. Upon receiving a photo from dispatch, Officer Kays confirmed that Hill was not Jeffrey Keys, Jr. After Hill provided the false names, Officer Kays repeatedly asked Hill, who was still seated in the passenger seat, to exclude himself from the counterfeit investigation by showing the back of his pants. Hill eventually showed Officer Kays the waistline of his jeans by pulling them to the right, at which point Officer Kays observed a golden dog logo.

[8] Officer Kays ordered Hill to exit the vehicle and Hill responded by calling the officer racist and taking a video with his phone. Only after Officer Whitley returned to the vehicle and aimed his taser at Hill, did Hill exit the vehicle. Hill was placed in restraints and Officer Whitley searched Hill's jacket for identification. Officer Whitley located a driver's license that did not belong to Hill, a plastic bag containing methamphetamine, and counterfeit currency. Officer Kays located a large bundle of counterfeit money between the front passenger seat and center console, as well as a loaded handgun under the passenger seat.

[9] On December 17, 2019, the State filed an Information, charging Hill with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony possession of methamphetamine, two Counts of Level 6 felony counterfeiting, Level 6 felony identity deception, Class A misdemeanor resisting arrest, Class A misdemeanor carrying a handgun without a license, and Level 5 felony carrying a handgun without a license. The State added a habitual offender enhancement and at the request of the State, the trial court dismissed the charge for carrying a handgun without a license.

[10] On August 5, 2020, the trial court conducted a suppression hearing. At the hearing, Hill argued that the officers’ conduct violated search and seizure protections pursuant to the United States and Indiana Constitutions. On August 19, 2020, the trial court denied Hill's suppression motion. On September 23, 2020, the trial court conducted a two-day jury trial. During the proceedings, the suppression issue was preserved with a continuing objection, and the evidence was admitted over that objection. At the close of the evidence, the jury found Hill guilty of Level 6 felony possession of methamphetamine, as a lesser included offense; two Counts of counterfeiting; and identity deception. During the second phase of the trial, Hill entered an admission to the habitual offender enhancement, and the trial court granted the State's motion to dismiss the charge for unlawful possession of a firearm by a serious violent felon. On October 30, 2020, during the sentencing hearing, the trial court imposed concurrent two-year terms for each conviction, enhanced by five years for the habitual offender adjudication, for an aggregate sentence of seven years.

[11] Hill now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[12] Although Hill originally challenged the admission of the evidence through a motion to suppress, he appeals following a completed jury trial and challenges the admission of such evidence at trial. "Thus, the issue is ... appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Washington v. State , 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Ackerman v. State, 774 N.E.2d 970, 974–75 (Ind. Ct. App. 2002), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Collins v. State , 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also consider the uncontested evidence favorable to the defendant. Id. In this sense, the standard of review differs from the typical sufficiency of the evidence case where only evidence favorable to the verdict is considered. Fair v. State , 627 N.E.2d 427, 434 (Ind. 1993).

II. Fourth Amendment

[13] Although his meeting with Officer Kays commenced as a consensual encounter, Hill maintains that the interaction with the officer became an investigatory stop during which he was detained and no longer free to leave when the officer asked Hill to show the back of his pants. Because he was no longer free to leave, Hill contends that the request to see the back of his pants amounted to an illegal search.

[14] The Fourth Amendment to the U.S. Constitution protects persons from unreasonable search and seizure by prohibiting, as a general rule, searches and seizures conducted without a warrant supported by probable cause. U.S. Const. amend. IV ; Berry v. State , 704 N.E.2d 462, 464–65 (Ind. 1998). As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception. Clark v. State , 994 N.E.2d 252, 260 (Ind. 2013). It is the State's burden to prove that one of these well-delineated exceptions is satisfied. Id.

[15] Encounters between law enforcement officers and public citizens take a variety of forms, some of which do not...