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Smith v. State

Court of Appeals of Indiana

February 19, 2014

JAMES SMITH, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Steven Eichholtz, Judge. The Honorable Michael Jensen, Magistrate. Cause No. 49G20-1302-FA-12948.

ATTORNEY FOR APPELLANT: KEVIN WILD, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; CHANDRA K. HEIN, Deputy Attorney General, Indianapolis, Indiana.

FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

James Smith appeals from his convictions after a bench trial of one count of class C felony Possession of Cocaine and a Firearm,[1] one count of class C felony Possession of Cocaine,[2] one count of class A misdemeanor Possession of Marijuana,[3] and one count of class A misdemeanor Carrying a Handgun Without Being Licensed,[4] contending that the trial court abused its discretion by admitting evidence that Smith possessed cocaine, marijuana, and a firearm without a license, when that evidence was allegedly obtained in contravention of the Fourth Amendment to the United States Constitution.

We affirm and remand.

David Parrish was employed as a security guard by Avert Security, a private security company that is not affiliated with law enforcement. Parrish had been trained through the National Rifle Association, received pepper-spray training, and through his employment, had encountered marijuana on at least ten occasions. Parrish was patrolling at Colonial Square Apartments on the evening of February 24, 2013. Parrish testified at trial that he was " pulling onto one of the parking lot areas, and as I pulled in, I saw a subject standing by the fence that surrounds the dumpster. And as I was pulling in, he took approximately two steps backwards." Transcript at 10. The man Parrish observed was subsequently identified as Smith.

Parrish pulled his vehicle alongside Smith and exited his vehicle. Parrish asked Smith for identification in order to determine if Smith was a visitor or an apartment resident. Smith refused to remove his hands from his coat as he spoke with Parrish. Parrish asked Smith to remove his hands from his pockets, and as Smith did so, a loaded firearm and a green leafy substance, later identified as marijuana, fell from Smith's pocket onto the ground. Parrish also noticed the odor of burnt marijuana emanating from Smith. Smith told Parrish " that's [sic] not my guns." Id. at 13. Because Smith referred to " guns," Parrish believed that Smith possessed one or more additional weapons. Parrish placed Smith in handcuffs and called 9-1-1. Parrish then retrieved the marijuana and firearm from the ground and placed them on the hood of his vehicle.

Officer Evan Meyer of the Indianapolis Metropolitan Police Department responded to Parrish's 9-1-1 call at the Colonial Square Apartments. Officer Meyer testified at trial that " As I pulled in, the security guard flashed his flashlight at me so I could see exact--his exact location. As I pulled off [sic], I saw that he had Mr. Smith at the back--or at this [sic] front of his--he had a Crown Vic, Crown Victoria. As I walked up to him, I saw that there was a handgun, a digital scale,[5] and some marijuana sitting on the hood of the car." Id. at 23. Parrish told Officer Meyer the circumstances leading up to the marijuana and weapon falling out of Smith's pocket. Officer Meyer then asked Smith for his name and Smith complied. After running Smith's name through the police computer system, he discovered that Smith did not have a license for the firearm. Officer Meyer arrested Smith and then conducted a search incident to that arrest. Officer Meyer discovered what was later identified as 5.09 grams of crack cocaine in Smith's right front pocket. Smith was then transported to jail.

The State charged Smith with one count of class A felony dealing in cocaine, one count of class C felony possession of cocaine and a firearm, one count of class C felony possession of cocaine, one count of class D felony possession of marijuana, one count of class A misdemeanor carrying a handgun without a license.[6] On May 21, 2013, the trial court sentenced Smith to a term of seven years executed on his conviction for possession of cocaine as a class C felony and to a ...


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