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Johnson v. State

Court of Appeals of Indiana

December 21, 2018

Shakur Johnson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1512-MR-1

          ATTORNEY FOR APPELLANT David M. Payne Ryan & Payne Marion, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana


         [¶1] Shakur Johnson appeals his conviction of murder, a felony.[1] We affirm.

         [¶2] Johnson presents three issues for our review, which we consolidate and restate as two:

I. Whether the trial court erred by admitting certain evidence seized pursuant to a search warrant.
II. Whether the trial court erred by admitting certain statements made by Johnson.

         [¶3] On December 29, 2015, Johnson, age 17, was charged with the murder of Mark Cotton. Information as to Johnson's location was acquired from his cell phone carrier and led police to obtain a search warrant for the apartment of Kylee Weaver, Johnson's girlfriend. During the search, police located Johnson and seized his cell phone and bullet cartridges consistent with those found at the scene. Johnson filed a motion to suppress this evidence, which the trial court denied. At trial, the evidence was admitted over Johnson's objection.

         [¶4] After Johnson was taken into custody, he asked to speak to his probation officer. His probation officer met with him at the juvenile detention center, and, during their conversation, Johnson made incriminating statements. These statements were included in his pretrial motion to suppress. The court denied Johnson's motion as to the statements, and they were admitted at trial over his objection. A jury found Johnson guilty as charged, and he was sentenced to fifty-five years, fifty of which is to be executed. He now appeals.

         [¶5] Both of Johnson's arguments challenge the admission of evidence. The admission of evidence at trial is a matter left to the discretion of the trial court. Nicholson v. State, 963 N.E.2d 1096 (Ind. 2012). We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances, and the error affects a party's substantial rights. Id.

         [¶6] Johnson first challenges the admission of the evidence seized from Weaver's apartment. The gist of his argument is that the officers' acquisition of his location by using the cellular tracking information provided by his wireless carrier was improper because no exigent circumstances existed. Therefore, insofar as the cellular tracking information served as the basis for the warrant to search Weaver's apartment, the search violated his federal and state constitutional rights, and any evidence seized in the search should not have been admitted at trial.

         [¶7] The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures by prohibiting, generally, searches and seizures conducted without a warrant supported by probable cause. U.S. CONST. amend. IV; Clark v. State, 994 N.E.2d 252 (Ind. 2013). As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible against a defendant absent a recognized exception. Clark, 994 N.E.2d 252. Likewise, article I, section 11 of the Indiana Constitution protects citizens from unreasonable searches and seizures. Despite the similarity of the two provisions, Indiana courts interpret and apply article I, section 11 independently from Fourth Amendment analysis. Mitchell v. State, 745 N.E.2d 775 (Ind. 2001).

         [¶8] The basis for the search warrant of Weaver's apartment was the cellular tracking information police obtained from the wireless carrier. Police obtained this information pursuant to Indiana Code section 35-33-5-12(a)(2) (2014), which provides:

(a) A law enforcement officer or law enforcement agency may not use a real time tracking instrument that is capable of obtaining geolocation information concerning a cellular device connected to a cellular network unless:
(1) the law enforcement officer or law enforcement agency has obtained an order issued by a court based upon a finding of probable cause to use the tracking instrument; or
(2) exigent circumstances exist that necessitate using the tracking instrument without first obtaining a court order.

         Thus, for the acquisition of cellular location information, our Legislature has determined that the existence of exigent circumstances creates an exception to the general requirement of a court order.

         [¶9] Although the Legislature did not define the term "exigent circumstances" with regard to this particular statute, it has been considered by our courts in the search warrant realm, and such examples can be instructive. Exigent circumstances that have been found sufficient to overcome a warrantless entry have included: 1) a suspect is fleeing or likely to take flight in order to avoid arrest; 2) incriminating evidence is in jeopardy of being destroyed or removed unless an immediate arrest is made; and 3) hot pursuit or movable vehicles are involved. Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991). Our Supreme Court has also recognized an "emergency circumstances" exception to the warrant requirement for instances where a violent crime has occurred and entry by police can be justified as a means to prevent further injury or to aid those who have been injured. Sapen v. State, 869 N.E.2d 1273, 1277 (Ind.Ct.App. 2007), trans. denied. Further, "[a]mong the exigencies that may properly excuse the warrant requirement are threats to the lives and safety of officers and others and the imminent destruction of evidence." Holder v. State, 847 N.E.2d 930, 937 (Ind. 2006).

         [¶10] With these concepts in mind, we turn to the facts of this case. On November 12, 2015, Cotton's body was found in the backyard of his residence. A cell phone found on Cotton's body showed an outgoing telephone call to 765-733-4079 while Cotton was believed to still be alive. The phone also contained text communication from that number on the same evening. The communication indicated that the individual using the 765-733-4079 number had texted to Cotton, "Got some smoke, bro make it just a $10 bag bro." Ex. Vol. 6, p. 11. Cotton had responded, "Got you." Id. Through an information database, officers learned that this number was registered to Cordelia Jackson, who the police knew from a previous investigation is Johnson's mother. A law enforcement information database also indicated that the number is associated with Johnson. Additionally, in the same area as Cotton's body, a necklace was found which a Facebook search revealed was the same or similar necklace to one worn by Johnson.

         [¶11] Based upon this information, the police submitted a "Wireless 9-1-1 Emergency Information Request Form" to Jackson's/Johnson's wireless carrier. Id. at 27. On the form, the police requested "GPS/pings" and indicated that the nature of the emergency situation was a homicide and that there was an "immediate threat to [the] community." Id. Following a telephonic probable cause hearing, the police also obtained a search warrant for Johnson's person and his mother's address, where he was thought to be living. However, the cellular location tracking returned a "ping" at another address that the police knew to be that of Johnson's girlfriend, Weaver. Due to this new information, the police engaged in another telephonic probable cause hearing to amend the original search warrant by adding Weaver's apartment as a location to be searched. During the subsequent execution of the search warrant at Weaver's apartment, police seized Johnson's cell phone and bullet cartridges that were consistent with those found at the scene.

         [¶12] At the suppression hearing, the State presented the testimony of Detectives Caudell and Zigler. Detective Zigler testified that in a homicide case there is a threat to the community. He explained, "If someone confronts an armed individual that's recently committed a homicide, I'd be concerned for the safety of that person and the community." Tr. Vol. 2, p. 56. Similarly, at trial Detective Zigler testified that the exigent circumstances in this case consisted of the immediate danger of death or injury to another person, the risk of damage to property, and the safety of the community, especially if the perpetrator was confronted. Tr. Vol. 3, p. 67.

         [¶13] The police were investigating a murder where the small amount of information available at the time linked Johnson to the victim. We find that the circumstances in this case-a threat to the lives and safety of others and possible destruction of evidence-were sufficiently exigent circumstances under Indiana Code section 35-33-5-12(a)(2) to justify obtaining cellular location information without a court order. Johnson has not shown a violation of his federal or state constitutional rights on this basis; accordingly, the trial court's admission of the evidence seized at Weaver's apartment was not in error.[2]

         [¶14] Johnson also claims error with the trial court's admission of statements he made to Lakisha Fisher, his probation officer, the morning after Cotton was murdered. During that conversation, Johnson complained that he was being treated unfairly by the police with regard to the investigation into Cotton's murder and explained that he had met Cotton the previous night in order to purchase Spice[3] from him. He stated, "See this what happened," at which point, Fisher informed him that he did not have to discuss the matter with her, but Johnson interrupted her saying, "[N]ah…nah…it[']s cool, cuz I know I'm telling the truth." Ex. Vol. 6, p. 40. After telling Fisher of his exchange with Cotton, Johnson, "with his head leaned to the side, [in] what appeared to this officer as a gangsta style demeanor," said, "'I served him up.'" Id. Fisher reported that in her "knowledge of street slang and growing up in the Detroit metro area, the term 'served up' means 'to punish' to give a person 'what they deserve.'" Id. Johnson appeals the admission of these statements on two grounds: 1) the juvenile waiver of rights statute and 2) Indiana Evidence Rule 617.

         [¶15] At the suppression hearing, juvenile probation officer Fisher testified that in 2015 she was Johnson's probation officer. She stated that on the morning following Cotton's murder, the juvenile detention officer called her and informed her that Johnson was asking to speak with her. She explained that she assumed Johnson wanted to talk about his ...

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