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Pugsley v. State

Court of Appeals of Indiana

February 25, 2014

JOHN R. PUGSLEY, 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 BLACKFORD SUPERIOR COURT. The Honorable J. Nicholas Barry, Judge. Cause No. 05D01-1212-FD-424.

ATTORNEY FOR APPELLANT: BRANDON E. MURPHY, Cannon & Bruns, Muncie, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.

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

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

John R. Pugsley appeals his convictions, following a jury trial, of possession of methamphetamine[1] as a Class D felony and possession of paraphernalia[2] as a Class A misdemeanor. On appeal, Pugsley contends that the trial court erred in admitting evidence seized without a warrant.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 1, 2012, during " deer firearm season," a Department of Natural Resources (" DNR" ) Law Enforcement Officer, Joshua Kilgore, saw a vehicle parked on County Road 300 West, near a wooded area north of County Road 500 North, in Blackford County, Indiana. When Officer Kilgore noted that no one was in the vehicle, he assumed that the occupants were hunting. As a DNR officer, Officer Kilgore is responsible for ensuring that hunters have the appropriate license and are wearing the required " hunter orange." See Ind. Code § 14-22-38-7(a) (defining " hunter orange" ); Ind. Code § 14-22-38-7(c) (providing in pertinent part that a person who hunts for deer by firearm must wear hunter orange).

Officer Kilgore entered the private property and located Pugsley and his stepson. Pugsley, who was carrying binoculars and a firearm, showed Officer Kilgore his valid hunting license. Officer Kilgore, however, noted that Pugsley was wearing camouflage clothing instead of the required hunter orange and asked Pugsley about the violation. Pugsley responded that he had been wearing orange earlier, but that it must have fallen off. Officer Kilgore informed Pugsley that, for safety reasons, he would be unable to continue hunting and asked Pugsley to meet him at the officer's vehicle so that a citation could be issued.

As Pugsley picked up his belongings, Officer Kilgore noticed that he made a suspicious movement with his hand, putting it behind his back. Concerned for officer safety, Officer Kilgore asked to see what was in Pugsley's hands. Pugsley showed the officer that he had a plastic bag and some note paper, which he planned to use as a transportation tag in the event he shot a deer. Officer Kilgore then noticed on the ground near where Pugsley was standing, a white-colored, ceramic or glass smoking device (" pipe" ). Officer Kilgore determined from his training and experience that it was " not a pipe that you would traditionally see . . . somebody smoking tobacco out of." Tr . at 37. Officer Kilgore picked up the pipe, which was not covered by any other object, and saw white residue inside the bowl. When asked about the residue, Pugsley stated that it was methamphetamine, and admitted that " he had been busy that last week and just ...


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