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
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Deputy Attorney General
FRIEDLANDER, SENIOR JUDGE.
Shakur Johnson appeals his conviction of murder, a
felony. We affirm.
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.
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
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
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.
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.
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).
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),
(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.
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.
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).
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.
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.
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.
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.
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 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.
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 ...