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Washburn v. State

Court of Appeals of Indiana

April 8, 2019

William Washburn, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Clark Circuit Court The Honorable Bradley B. Jacobs, Judge Trial Court Cause No. 10C02-1710-F4-91

          ATTORNEY FOR APPELLANT A. David Hutson Hutson Law Office, LLC Jeffersonville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

          Kirsch, Judge.

         [¶1] William Washburn ("Washburn") appeals his convictions after a jury trial for possession of methamphetamine[1] as a Level 5 felony and possession of a syringe[2] as a Level 6 felony. On appeal, he raises the following restated issue: Whether the trial court abused its discretion by admitting into evidence items seized during the warrantless search of a locked safe found in Washburn's car, when he alleges that search violated his rights under Article 1, Section 11 of the Indiana Constitution.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On or about September 20, 2017, [3] Officer Tom O'Neil ("Officer O'Neil") of the Jeffersonville Police Department was "involved in a narcotics investigation" that targeted Washburn. Tr. Vol. 1 at 12. Around 2:45 p.m., Officer O'Neil, who had participated in hundreds of narcotics investigations, was on patrol in Clark County, Indiana, when he saw Washburn's "vehicle travel left of center and utilize the middle of the roadway for approximately two blocks." Id. at 168; Appellant's App. Vol. 2 at 16, 20. After pulling over Washburn's vehicle, Officer O'Neil exited his patrol car, approached Washburn, and requested identification from Washburn and his passenger.[4] Tr. Vol. 1 at 13. Officer O'Neil noted that Washburn "was nervous," and "his whole posture was not consistent with the innocent motoring public." Id. Washburn was "shaking to the point where he couldn't even get his driver's license out without issues. Um he wouldn't make eye contact with me . . . breathing heavy . . . he kept reaching towards the backseat." Id. at 171-72. Once he received Washburn's identification, Officer O'Neil ran a routine warrant check. Id. at 13.

         [¶4] Officer O'Neil asked for backup and requested that a K-9 unit assist at the scene. The results of the warrant check revealed that an active warrant had been issued in Kentucky for Washburn's arrest on an escape charge. Officer O'Neil placed Washburn under arrest, and because Washburn's car was blocking traffic, Officer O'Neil summoned a wrecker to tow the vehicle. Around that same time, Sergeant Dan Lawhorn ("Sergeant Lawhorn"), the supervisor of the Jeffersonville Police Department's Narcotics Unit, arrived as backup.

         [¶5] Clarksville Police Department Sergeant Tony Lehman ("Sergeant Lehman"), an officer who routinely used his trained K-9 to assist in narcotics investigations, arrived at the scene about four to six minutes after being called. Officer O'Neil informed Sergeant Lehman about the "criminal indicators," and Officer O'Neil returned to speak with Washburn while Sergeant Lehman walked his K-9 around Washburn's vehicle. Id. at 171. Soon thereafter, the K-9 jumped into Washburn's car through an open window and indicated that narcotics were present in a backpack located in the back seat. Sergeant Lawhorn removed the backpack and found a small locked safe inside. Id. at 172. Sergeant Lawhorn moved the safe away from the backpack, and the K-9 sniffed the two items separately. This time, the K-9 did not alert on the backpack; instead, "it hit on the safe, it gave a positive alert for the odor of narcotics." Id.

         [¶6] Upon seeing the safe, Washburn "became confrontational telling, [the officers they] couldn't search it, [they] weren't allowed to search it." Id. at 15. Washburn refused to give the officers "the code or key to it." Id. Nevertheless, the officers forced the safe "open with a pry bar at which time [Officer O'Neil] located . . . suspected methamphetamine and a firearm that was listed . . . as stolen." Id. The officers also found a digital scale inside the safe. The drug-like substance found in the safe tested positive for methamphetamine. Officer O'Neil transported Washburn to jail.

         [¶7] The State charged Washburn with a six-count information: Count I, dealing in less than one gram of methamphetamine as a Level 4 felony; Count II, possession of less than five grams of methamphetamine as a Level 5 felony; Count III, unlawful possession of a syringe as a Level 6 felony; Count IV, possession of paraphernalia as a Class C misdemeanor; Count V, maintaining a common nuisance as a Level 6 felony; and Count VI, unlawful possession of a syringe enhanced by a prior conviction, a Level 5 felony. Appellant's App. Vol. 2 at 174. Prior to trial, Washburn filed a motion to suppress, alleging that evidence found by the police during the traffic stop was seized in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Following a hearing, held one day prior to the jury trial, the trial court denied Washburn's motion on both state and federal constitutional grounds, concluding that the search was performed pursuant to the vehicle exception to the warrant requirement and that exception extended to the locked safe found inside the vehicle. Tr. Vol. 1 at 37. That same day, Washburn filed a "Motion in Limine Regarding Other Crimes, Wrongs, or Acts." Appellant's App. Vol. 2 at 70. During a hearing held just prior to the start of trial, the trial court granted the motion in limine and ordered that the State could not make any reference to the fact that Washburn was arrested on an outstanding warrant or that the handgun found in Washburn's possession was stolen.

         [¶8] A jury trial was held on June 5 and June 6, 2018, and among the exhibits offered by the State were the following: Exhibit 2, the firearm; Exhibit 3, the digital scale; Exhibit 4, a large clear plastic bag, which had held Exhibits 5 and 6; Exhibit 5, two small green plastic baggies that, together, contained less than one gram of methamphetamine; Exhibit 6, multiple empty green plastic baggies, similar to those in Exhibit 5, some of which contained trace amounts of methamphetamine; and Exhibit 7, a syringe. Tr. Vol. 1 at 176-77. Those exhibits were admitted over Washburn's continuing objections. At the close of evidence, only three counts of the charging information were submitted to the jury.[5]Id. at 231-37. Of those charges, the jury could not reach a verdict on Count I, the Level 4 dealing charge, but found Washburn guilty on Counts II and III, the Level 5 felony possession of methamphetamine charge and the Level 6 felony possession of a syringe charge, ...

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