MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Jan 25 2017, 9:05 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
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew B. Bakewell,                                     January 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1603-CR-705
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1406-FB-61



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017   Page 1 of 14
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Matthew B. Bakewell (Bakewell), appeals his conviction

      for dealing in methamphetamine, a Class B felony, Ind. Code § 35-48-4-

      1.1(a)(1)(A); and possession of marijuana, a Class A misdemeanor, I.C. § 35-

      48-4-11(1).


[2]   We affirm.


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

      the trial court abused its discretion by admitting evidence obtained pursuant to

      a warrantless search.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 6, 2014, Elkhart County Sheriff’s Deputy Bob Smith (Officer Smith)

      received a tip from an unidentified member of the Drug Unit that someone was

      manufacturing methamphetamine in room 124 of the Day Lite Inn, located in

      Elkhart County, Indiana. Officer Smith, together with his trainee Elkhart

      County Sheriff’s Deputy Eric Dilley (Officer Dilley), responded to the tip.

      Upon arrival at the Day Lite Inn, the officers first stopped at the front desk to

      determine the identity of the current resident in room 124. The manager

      informed them that the room had been rented to and paid for by Lonna Gillison

      (Gillison).




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[5]   When the officers arrived at room 124, Officer Smith knocked on the door

      several times. Neither officer noticed any unusual odor emanating from the

      room. After several repeated attempts knocking on the door, a female voice

      from inside the room inquired who was there. Officer Smith announced,

      “Sheriff’s Department.” (Transcript pp. 19-20). The window curtain moved

      and a woman looked out at the officers. After she shut the curtain, the officers

      could hear the woman talking to someone inside the hotel room. Shortly

      thereafter, the woman, later identified as Gillison, opened the door. Officer

      Smith introduced himself and asked if he “could step into the room to talk to

      the people inside.” (Tr. p. 24). Gillison replied, “Yes,” and stepped aside for

      the officers to enter. (Tr. p. 24). Upon entering, the officers noticed a male,

      later identified as Bakewell, sitting on one of the beds in the room. Officer

      Smith explained that they were following up on an “anonymous tip that drug

      use was going on” in the room. (Tr. p. 26). While talking, Officer Smith

      noticed “a bud of what” the officer believed to be marijuana sitting on a

      nightstand in between the two beds. (Tr. p. 27). Officer Smith did not mention

      that he had seen the marijuana, nor did he place Bakewell and Gillison under

      arrest.


[6]   Officer Smith asked Gillison and Bakewell for their consent to search the room.

      They both agreed to the request. Officer Smith walked around the room and

      asked if he could look under the bed Bakewell was sitting on. Again, both

      consented. Bakewell “even stood up and moved from the bed[.]” (Tr. p. 29).

      Officer Smith picked up the mattress and noticed numerous baggies, as well as


      Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017   Page 3 of 14
      a coffee filter that contained a white substance believed to be

      methamphetamine. At this point, Officer Smith read the Pirtle warnings to

      Bakewell and Gillison, and asked again for permission to search the room.

      “Bakewell would not respond whether he would give consent to search the rest

      of the room[.]” (Tr. p. 31). Officer Smith called for backup to secure the room

      while he applied for a search warrant. The search warrant was granted later

      that night. A subsequent search of the hotel room revealed numerous items

      used in the manufacturing of methamphetamine. When confronted with the

      evidence, Bakewell admitted to having manufactured methamphetamine the

      night before but added that he had not been planning on manufacturing

      methamphetamine that night.


[7]   On June 11, 2014, the State filed an Information, charging Bakewell with

      Count I, dealing in methamphetamine, a Class B felony; Count II, possession

      of methamphetamine, a Class D felony; and Count III, possession of

      marijuana, a Class A misdemeanor. On May 29, 2015, Bakewell filed a motion

      to dismiss the evidence discovered pursuant to a warrantless search. On

      October 16, 2015, following a hearing, the trial court denied the motion. On

      December 2, 2015, the trial court conducted a bench trial. At the close of the

      evidence, the trial court took the matter under advisement. On January 19,

      2016, the trial court entered an order finding Bakewell guilty on Count I and

      III, and not guilty on Count II. On March 15, 2016, the trial court sentenced

      Bakewell to thirteen years of imprisonment for dealing in methamphetamine




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       and one year for possession of marijuana, with both Counts to be served

       concurrently and five years suspended to probation.


[8]    Bakewell now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[9]    Bakewell contends that the trial court abused its discretion in admitting the

       evidence discovered as a result of the warrantless search of the hotel room. The

       State argued, and the trial court agreed, that no Fourth Amendment violation

       occurred since the officers obtained a voluntary consent to enter and search the

       hotel room. The standard of review for admissibility of evidence is an abuse of

       discretion. Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011),

       trans. denied. The trial court abuses its discretion only when its action is clearly

       erroneous and against the logic and effect of the facts and circumstances before

       the court. Id. Even when the trial court erred in its ruling on the admissibility

       of evidence, this court will reverse only if the error is inconsistent with

       substantial justice. Id.


[10]   The Fourth Amendment to the United States Constitution generally prohibits

       warrantless searches. Peel v. State, 868 N.E.2d 569, 574 (Ind. Ct. App. 2007).

       The purpose of the Fourth Amendment is to protect the privacy and possessory

       interests of individuals by prohibiting unreasonable searches and seizures. Id.

       If a warrantless search is conducted, the burden is on the State to prove that, at

       the time of the search, an exception to the warrant requirement existed. Id.



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       That is, searches conducted without a warrant are per se unreasonable, subject

       to a few well-delineated exceptions. Id. at 575.


[11]   Hotel guests enjoy the same constitutional protection against unreasonable

       search and seizure as do occupants of private residences. Id. An occupant of a

       motel room has standing to challenge a search even, where, as here, he 1 or she

       has not paid for the room. Ceroni v. State, 559 N.E.2d 372, 373 (Ind. Ct. App.

       1990), trans. denied.


[12]   One exception to the warrant requirement occurs when consent is given for the

       search. Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006). The theory

       underlying the exception is that, when an individual gives the State permission

       to search either his person or property, the governmental intrusion is

       presumably reasonable. Buckley v. State, 797 N.E.2d 845, 849 (Ind. Ct. App.

       2003). When seeking to rely upon consent to justify a warrantless search, the

       State has the burden of proving “‘that the consent was in fact voluntarily given,

       and not the result of duress or coercion, express or implied.’” Campos v. State,

       885 N.E.2d 590, 600 (Ind. 2008) (quoting Schneckloth v. Bustamonte, 412 U.S.

       218, 248, 93 S.Ct. 2014, 36 L.Ed.2d 854 (1973)). The voluntariness of a

       defendant’s consent is determined from the totality of the circumstances.

       Schneckloth, 412 U.S. at 248-49. Under the particularities of this case, Bakewell




       1
           The record reflects that Gillison paid for the hotel room.


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       disputes the voluntariness of the consent to enter the room and the consent to

       search the hotel room. We will discuss each consent separately.


                                               I. Consent to Enter

[13]   Bakewell contends that the “knock and talk investigation” employed by the

       officers to gain entry into the room implicated his Fourth Amendment Rights.

       (Appellant’s Br. p. 14). Bakewell maintains that because the officers were

       trying to hide from the window when they first knocked on the door, the

       officers “communicated to a reasonable person they were not at liberty to

       ignore the police presence and go about their business.” (Appellant’s Br. p. 15).


[14]   “A knock and talk investigation involves officers knocking on the door of a

       house, identifying themselves as officers, asking to talk to the occupant about a

       criminal complaint, and eventually requesting permission to search the house.”

       Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003) (internal quotation and

       citation omitted), trans. denied. The knock and talk procedure “does not per se

       violate the Fourth Amendment.” Id. at 498. Neither probable cause nor

       reasonable suspicion is a constitutional prerequisite for a knock and talk

       investigation, and suspicion based on an anonymous tip is a proper basis for

       officers to enter the curtilage of private property and make inquiries of the

       occupants. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). The knock and

       talk procedure does, however, implicate the Fourth Amendment if under the

       totality of the circumstances a reasonable person would not feel free to refuse

       the officers entry, ignore the officers’ inquiries, and go about his business.

       Redden v. State, 850 N.E.2d 451, 458-59 (Ind. Ct. App. 2006), trans. denied. We

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       have previously observed that a reasonable person may not feel free to ignore

       officers’ entreaties if, for example there is a threatening presence of several

       officers, one or more officers displays a weapon, an officer physically touches

       the person, or the tone of the officer’s voice indicates that compliance with the

       officer’s request might be compelled. Overstreet v. State, 724 N.E.2d 661, 664

       (Ind. Ct. App. 2000), trans. denied.


[15]   While we have noted that a knock and talk investigation is “inherently coercive

       to some degree,” we cannot say that an illegal seizure occurred here. Hayes,

       794 N.E.2d at 496. The evidence most favorable to the trial court’s ruling

       reflects that after the officers had repeatedly knocked on the door, Gillison

       inquired who was there. Officer Smith announced the presence of the “Sheriff’s

       Department.” (Tr. pp. 19-20). When Gillison opened the door, Officer Smith,

       in full police uniform, introduced himself and asked if he “could step into the

       room to talk to the people inside.” (Tr. p. 24). The record indicates that

       Gillison replied affirmatively and stepped aside for the officers to enter. Officer

       Smith explained that they were investigating an anonymous tip of drug use.

       There is no evidence that the officers touched Bakewell or Gillison, drew their

       weapons, or used a forceful tone of voice. Accordingly, mindful of the

       circumstances of this exchange, the officers’ conduct did not communicate to a

       reasonable person that he or she was not at liberty to ignore the officers’

       presence. See Redden, 850 N.E.2d at 458-59.




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                                                 II. Consent to Search

[16]   Next, Bakewell contends that he and Gillison were in custody at the moment

       the officers noticed the marijuana on the nightstand and therefore the Pirtle

       warnings should have been administered prior to requesting consent to search

       the room.


[17]   Indiana’s law on consent to search derives from Pirtle v. State, 323 N.E.2d 635,

       640 (Ind. 1975), which held that “a person who is asked to give consent to

       search while in police custody is entitled to the presence and advice of counsel

       prior to making the decision whether to give such consent.” Thus, “a person in

       custody must be informed of the right to consult with counsel about the

       possibility of consenting to a search before a valid consent can be given.” Jones

       v. State, 655 N.E.2d 49, 54 (Ind. 1995). We determine whether a person is “in

       custody” by applying an objective test, asking whether a reasonable person

       under the same circumstances would believe that he was under arrest or not free

       to resist the entreaties of the police. Sellmer, 842 N.E.2d at 363.


[18]   In support of his argument that he was in custody as soon as the officers entered

       the room and noticed the marijuana on the nightstand, Bakewell refers to Peel v.

       State, 868 N.E.2d 569 (Ind. Ct. App. 2007). 2 In Peel, five police officers and a



       2
         Bakewell also focuses on State v. Linck, 708 N.E.2d 60 (Ind. Ct. App. 1999), trans. vacated, in support of his
       argument. In Linck, police officers were dispatched to Linck’s apartment to investigate a complaint of illegal
       drug use. Id. at 61. Arriving at the apartment, the officers smelled burning marijuana. Id. After allowing the
       officers to enter his apartment, the officers informed Linck of their investigation and asked him what the
       problem was. Id. Linck replied that he had just smoked a joint. Id. Based on Linck’s response, the officers
       inquired whether there was anything left. Id. at 62. Linck replied affirmatively and retrieved a bag of
       marijuana from the refrigerator and one from the bedroom. Linck was then placed under arrest. Id.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017             Page 9 of 14
       canine unit arriving at Peel’s motel room after a complaint noticed an odor of

       marijuana emanating from the room. Id. at 572. After Peel opened the door,

       the officers informed him about the complaint and asked him if he had been

       smoking marijuana in the room. Id. Peel admitted to it, but informed the

       officers that there was nothing left. Id. The officers directed Peel and another

       occupant of the room to exit the room and one of the officers testified that

       neither individual was “free to wander off.” Id. at 573. The other occupant

       told the officers that he and Peel had been smoking marijuana earlier and

       admitted to hiding the marijuana under the beds. Id. The officers asked for and

       received permission to search the room. Id. Based on these circumstances and

       the officers’ incriminating questions immediately after the occupant had

       admitted to smoking marijuana in the room, the court concluded that Peel was

       in custody at the moment the officers requested consent to search the room. Id.

       at 577-78.


[19]   Upon review, we find Peel easily distinguishable from the situation at hand.

       Unlike the officers in Peel, Officer Smith did not ask Bakewell or Gillison any

       incriminating questions upon noticing a bud of marijuana sitting on a table in

       between the two beds. In fact, Officer Smith testified that he never mentioned

       the marijuana on the nightstand.




       However, we find Linck inapposite as Linck relies upon the lack of Miranda warnings prior to making
       incriminating statements to the police; no request to search Linck’s apartment was ever made by the police
       officers. See Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (“[G]iving an arrestee Miranda warnings [] does not
       sufficiently inform him of his right to consult with counsel prior to consenting to a search”).

       Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017            Page 10 of 14
[20]   Based on the totality of the circumstances in light most favorable to the

       judgment, we find that Bakewell was not in custody nor was he arrested when

       Officer Smith requested consent to search the hotel room and therefore the

       Pirtle warnings did not attach. At trial, Officer Smith explained that he had

       informed Bakewell and Gillison that the officers were following up on a tip of

       drug use in the room. Officer Smith testified that even though he had observed

       a bud of marijuana, which appeared to be less than one gram, he did not notice

       any smell of marijuana in the room. He stated that he did not mention his

       observations to Bakewell or Gillison and affirmed that he would have allowed

       them to exit if they had decided to walk out the room. At the moment the

       request for a search of the room was made, Bakewell spoke voluntarily to the

       officers, was not physically restrained nor was he asked any incriminating

       questions or badgered to give consent. Only two officers were present and the

       entire encounter from when the officers arrived at the hotel lasted only

       approximately twenty-five minutes. Because Bakewell’s consent to a search of

       the hotel room was not constitutionally defective, the trial court properly

       admitted the evidence discovered following the search of the room.


                                              III. Search Warrant

[21]   Lastly, Bakewell contends that Officer Smith’s affidavit for search warrant was

       insufficient to constitute probable cause as it failed “to establish the anonymous

       tipster[’s] reliability[.]” (Appellant’s Br. p. 17). Specifically, Bakewell

       maintains that “[t]here is no information available as to whether the informant

       has given correct information in the past or the information’s hearsay that the


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       unidentified individuals would be manufacturing methamphetamine at the

       location.” (Appellant’s App. p. 17).


[22]   In determining whether to issue a search warrant, “‘[t]he task of the issuing

       magistrate is simply to make a practical, common sense decision whether, given

       all the circumstances set forth in the affidavit . . . there is a fair probability that

       contraband or evidence of a crime will be found in a particular place.’” Jaggers

       v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213,

       238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). When reviewing a

       magistrate’s decision to issue a warrant, the reviewing court applies a

       deferential standard. Newby v. State, 701 N.E.2d 593, 598 (Ind. 1998). We will

       affirm the magistrate’s decision to issue the warrant if the magistrate had a

       “substantial basis” for concluding that probable cause to search existed. Id.

       “Substantial basis” requires us to focus on whether the reasonable inferences

       drawn from the totality of the evidence support the probable cause

       determination. Id.


[23]   The United States Supreme Court has held that uncorroborated hearsay from a

       source whose credibility is itself unknown, standing alone, cannot support a

       finding of probable cause to issue a search warrant. Gates, 462 U.S. at 227. The

       federal test for ensuring the reliability of a hearsay statement in a probable cause

       determination allows the use of hearsay only if the totality of the circumstances

       corroborates the hearsay. Id. at 230-31. The reliability of hearsay can be

       established in a number of ways, including where: (1) the informant has given

       correct information in the past, (2) independent police investigation

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       corroborates the informant’s statements, (3) some basis for the informant’s

       knowledge is demonstrated, or (4) the informant predicts conduct or activities

       by the suspect that are not ordinarily easily predicted. Jaggers, 687 N.E.2d at

       183.


[24]   Indiana Code section 35-33-5-2(b) provides:

               When based on hearsay, the affidavit must either:


               (1) Contain reliable information establishing the credibility of the
                   source and of each of the declarants of the hearsay and
                   establishing that there is a factual basis for the information
                   furnished; or


               (2) Contain information that establishes that the totality of the
                   circumstances corroborates the hearsay.


[25]   Although Officer Smith’s affidavit for search warrant contained a reference to

       the hearsay of an “anonymous tip that methamphetamine was being

       manufactured in [] hotel room [124],” the affidavit also included the Officer’s

       discovery of the marijuana on the nightstand and the methamphetamine under

       the mattress located pursuant to a valid consent to search. (State’s Exh. 1).

       Accordingly, the reliability of the anonymous source was corroborated by the

       results of Officer Smith’s investigation. See Jaggers, 687 N.E.2d at 183.

       Therefore, as the totality of the evidence corroborated the hearsay, there was

       sufficient probable cause to issue a search warrant for a continued search of the

       hotel room.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1603-CR-705 | January 25, 2017   Page 13 of 14
                                             CONCLUSION
[26]   Based on the foregoing, we hold that the trial court properly admitted the

       evidence discovered pursuant to a valid consent to search and a search warrant.


[27]   Affirmed.


[28]   Crone, J. and Altice, J. concur




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