Wilkerson v. State

1

Brandon Wilkerson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 23A-CR-538

Court of Appeals of Indiana

August 28, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 &amp 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.^[1] 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.

[¶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." 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.^[2] 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.

[¶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...