Isiah L. Barker v. State of Indiana , 96 N.E.3d 638 ( 2018 )

FILED
Mar 19 2018, 5:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Isiah L. Barker, March 19, 2018
Appellant-Defendant, Court of Appeals Case No.
45A03-1701-CR-123
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-1211-MR-12
Brown, Judge.
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[1] Isiah L. Barker appeals his convictions for murder and feticide as a class B
felony. Barker raises one issue which we revise and restate as whether the trial
court abused its discretion in admitting certain evidence. We affirm.
Facts and Procedural History
[2] In June 2011, Cynthia Funches, a certified nursing assistant employed at
Renaissance Park South, was in a relationship with Barker and was pregnant
with his child. Funches lived in an apartment in Highland, Indiana, and her
lease listed her as the only resident and provided in part that “[t]he premises
shall be occupied solely for residential purposes by Resident and those persons
listed in the Application for the Lease” and that “[v]isitors will be limited to 2
persons staying with Resident for a maximum of 14 days, whether consecutive
or individually during each year of the Lease term.” State’s Suppression
Hearing Exhibit 3. Funches listed Barker as her emergency contact on her
application for residency and his address as 9350 South Green.
[3] On June 21, 2011, Funches called Genett Clay, a nurse, and told her that she
wanted to call off from work because she was bleeding and needed to go to the
hospital. Clay heard a male voice instructing Funches to “hang up the damn
phone, because we have to go.” Trial Transcript Volume 2 at 34. Funches
called Clay again, and Clay heard the same male voice state: “I don’t have time
for this shit. Hang up the phone. We have to go to the hospital.” Id.
[4] Around 11:00 p.m. on June 21, 2011, Vivian Pettigrew, who lived in the same
apartment complex as Funches, left her apartment and went to her car to
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retrieve her laundry. She observed two men coming down the stairs with a bin
and recognized one of the men as Funches’s boyfriend, Barker. Pettigrew made
eye contact with Barker, he “ducked his head real quick,” and “it troubled [her]
spirit.” Trial Transcript Volume 3 at 186, 202. She observed the men struggle
with the bin and head towards a green Caravan that Pettigrew recognized as the
same Caravan that Barker had previously driven. She also observed that the
Caravan had two mattresses on top.
[5] On June 22, 2011, Funches’s sister, Shaunte Ruth, called the office of Funches’s
apartment complex, told a woman that she was trying to contact her sister and
had not heard from her, and asked if she would go to the apartment and see if
she received a response at the door. Laura Newton and her co-worker, Pamela
Heeringa, went to Funches’s apartment, knocked on the door, received no
response, and then entered the door using a key.
[6] Heeringa found the apartment in “complete disarray.” Transcript of
Suppression Hearing Volume 2 at 10. Newton and Heeringa looked for
Funches, but did not find her. They observed a rolled-up carpet in the living
room and that the carpet was missing from the dining room and the hallway
area. Newton went into the dining room and down the hall where she could
see in the bedroom and the bathroom and “went to where [she] would have
been able to see [Funches] if she had been there.” Trial Transcript Volume 2 at
94. Newton observed that there was furniture located in various areas of the
apartment where it should not have been such as a dresser in the kitchen and
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that the apartment looked like it had been ransacked. Heeringa locked the
door, returned to the leasing office, and called the police.
[7] Highland Police Officer Brandon Norris received a dispatch regarding a welfare
check or “[c]hecking the wellbeing of somebody that somebody hasn’t had
contact with in a little while or something of that nature.” Id. at 121. Officer
Norris spoke with the apartment employees, and they gave him information as
to the apartment that he needed to check. At some point, Highland Police
Officer Wright also arrived. The leasing agents informed Officer Norris that “a
female had not been seen or heard from in a while, so they were going to let
[them] into the apartment, if we could have a welfare check on her.” Transcript
of Suppression Hearing Volume 2 at 162. The leasing agents mentioned to
Officer Norris that they had “peeked in and seen some things which then led
them to believe that they should back out and call the police.” Id. One of the
leasing agents told Officer Norris that there were blood stains on some rolled-up
carpet inside the apartment. Officer Norris inquired whether there were any co-
tenants that lived there at that time and was advised that Funches was the only
lessee. Heeringa let the officers into the apartment.
[8] When Officer Norris first entered the apartment, he saw that the door trim
looked as if it had been damaged. He observed that “everything was stacked up
in the kitchen” and “everything was in disarray,” and the officers proceeded in
“to make sure that there was no – nothing – you know, foul play or anything –
anything crazy inside, because just how things were stacked up and everything
was in disarray, and it looked a little suspicious.” Id. at 165. Officer Norris
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called out “Hello Highland Police” to make sure no one was present and, as he
and Officer Wright were going down the hallway, they noticed other things out
of place or out of the ordinary. Id. at 168. Officer Norris smelled an odor “that
could be recognizable as a cleaning product or bleach” and observed that the
kitchen was full of furniture and what he thought was rolled-up fragments of
carpet in the living room. Trial Transcript Volume 2 at 146. The bedroom did
not have any mattresses or carpet, stains were present on the floor, and the
closet mirror was cracked. Officer Norris believed he was standing in a crime
scene. He canvassed the entire apartment and did not find Funches. He “went
over to the carpet, pulled a piece or two and rolled it back and noticed
immediately that there was some blood stain on the carpet.” Transcript of
Suppression Hearing Volume 2 at 175. Officer Norris then saw Corporal
Potesta, his immediate supervisor, standing at the front of the apartment.
Corporal Potesta took a look and then said, “[A]ll right, let’s – no more
touching anything. Let’s call Detective Santino.” Id. Officer Norris then
stayed in the immediate hallway outside the door to secure the scene and spoke
to Highland Police Detective Mark Santino when he arrived.
[9] After speaking briefly with the family and with the knowledge that Funches
apparently had been out of contact with her family and missing, Detective
Santino entered the apartment as a “follow-up with patrol for their welfare
check” or “an extension of their welfare check.” Id. at 42. At that time,
Detective Santino believed that Funches was alive. During his walkthrough of
the living room, kitchen, and hallway, Detective Santino did not see a cot, a
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sleeping bag, or anything to indicate that someone was staying there that day.
The apartment appeared abandoned “[f]or all practical purposes.” 1 Id. at 85. In
the bedroom, Detective Santino observed that there was not even a mattress or
box spring and it did not appear to him that anyone was staying in the
bedroom. Detective Santino also observed some sort of dark substance on the
concrete which he believed to be blood, a couple of speckles of blood in the
hallway, and a bucket with a liquid and a rag inside that had a red-like
substance on it. Detective Santino did not collect any property during that
initial walkthrough. He told a patrolman to close the door and secure it.
[10] Detective Santino asked Heeringa who was on the lease, and she confirmed
that Funches was the leaseholder. Detective Santino had contact with
Funches’s family and learned that Funches might be in the company of Barker
and that she was potentially being held against her will. Detective Santino was
not sure if the victim was deceased or still alive, and he then called the Lake
County Crime Lab to obtain a second opinion and start processing the
apartment with the goal of finding Funches. The crime lab took photographs of
1
At the suppression hearing, Detective Santino was asked during cross-examination: “You made some
speculation earlier in your testimony that you believe the apartment appeared to be abandoned, is that
correct?” Transcript of Suppression Hearing at 113-114. He answered: “Abandon slash disarray.” Id. at
114. When asked if it was his assumption that the apartment was abandoned, Detective Santino answered:
“I mean it’s a hard question to answer because, again, it’s – I can tell you what my personal observations
were. And I guess it’s going to be, you know, what each individual’s opinion. To me it was just – you know,
it was – there was a lot of things out of place. It would not be indicative of a regular apartment.” Id.
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the apartment and collected pieces of carpeting, a piece of paper, and swabs of
an unknown red substance.
[11] Meanwhile that same day, Chicago Police Detective Stan Kalicki responded to
a call regarding a body found in a garage in Chicago by a homeowner.
Detective Kalicki arrived at the scene and observed it to be an abandoned house
and garage. The homeowner informed the police that he had arrived there
earlier in the day and observed the side door that he had just screwed shut was
kicked up and a padlock had been placed on it to prevent access. The
homeowner cut off the lock, entered the garage, opened a plastic tote container,
and discovered a body. The police observed that the body had a uniform for
Renaissance Rehabilitation Center, contacted the Center, and learned that
Funches was employed there but was not there that day. The police observed a
tattoo on the forearm and tentatively identified the body as Funches. It was
later determined that Funches suffered stab wounds and died from multiple
blunt force trauma2 and the fetus within her died from asphyxiation anoxia.
2
When asked for his conclusion as to the cause of death, Dr. John Feczko testified: “So I would have called
it, just as the Cook County coroner or pathologist did, multiple blunt force trauma, but the main vital blow –
a lot of these stab wounds are very superficial, but the main blow that would have resulted in death would
have been the strike on the head resulting in subarachnoid and subdural hemorrhage of the brain, which
causes you to stop breathing. You cannot get oxygen in. Obviously, multiple blunt force trauma.” Trial
Transcript Volume 5 at 90. When asked on cross-examination if Funches died from multiple injuries or just
one, Dr. Feczko answered: “I would say that the fatal blow is the injury to the head.” Id. at 100. He later
stated: “On the report, I would have signed it out the same way, multiple blunt force trauma. Because with
multiple blunt force trauma, you can have bleeding that can result in loss of blood and, you know, death
from, again, asphyxia, not having oxygen, but certainly, that and the head injury was the cause of death.” Id.
at 107.
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[12] Approximately “[a]n hour, ninety minutes,” after Detective Santino arrived at
Funches’s apartment, Chicago Police called Detective Santino and informed
him that there was a tentative identification of a body found as being Funches
based on tattoos of the victim. Trial Transcript Volume 3 at 28.
[13] After the crime lab left and after Detective Santino learned that Funches was
presumed dead, Officer Norris went back into the apartment and collected
some pieces of evidence left behind by the crime lab. Detective Santino learned
that Officers Norris and Munoz looked through some papers including a
Highland Police traffic ticket and a ticket issued to Barker which listed Barker’s
address as 8350 South Green in Chicago. The police recovered a number of
documents from the apartment including: a document containing a picture of
Barker’s identification listing his address as 8350 South Green in Chicago; a
receipt dated May 20, 2010, for a vehicle tow for the City of Chicago listing
Barker’s address as 8350 South Green in Chicago; and a credit card statement
for a time period of January 7th to February 5th, 2011, addressed to Barker
listing his address as 8350 South Green Street in Chicago. Also on June 22,
2011, police impounded Barker’s minivan found in Chicago.
[14] On June 23, 2011, Highland Police Detective Lester John Siple prepared a
warrant on the basis that the investigation went from a welfare check to a
homicide investigation. The warrant was signed by a judge and issued at 11:13
a.m. That day, Indiana State Police Trooper Scott Gilbert focused on the blood
stain evidence and collected swabs and a piece of drywall.
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[15] Also on June 23, 2011, La Porte County Sheriff Captain Patrick G. Cicero, a
member of the International Association of Bloodstain Pattern Analysts,
responded to Funches’s apartment and completed a bloodstain pattern analysis.
Captain Cicero took photographs of the apartment including a photograph of
the floor with a “fairly significant[,] stain, reddish brown in color” on the
concrete floor and bloodstains on the wall. Trial Transcript Volume 4 at 24.
Captain Cicero observed wooden tack strips for carpeting on the concrete floor,
but the carpeting was not present. He also observed the glass on a panel of a
folding closet door was cracked and there was dried blood in the channel or
track of the door. He determined that the mirror had evidence of bloodstains
that had been cleaned, and determined the presence of blood in the bedroom,
hallway, and bathroom. He also determined that there were impact patterns in
the bathroom and cast off patterns in the hallway.
[16] The police learned that Barker dropped off a minivan that he typically drove
with an Illinois license plate to Towanna Johnson’s house in Chicago and took
her green Taurus which had an Illinois license plate. The Taurus contained a
parking permit with an expiration date of June 30, 2011, affixed to the
windshield so the vehicle could be legally parked in Chicago. The police
discovered a sixty pound bag of Quickrete concrete in the passenger seat as well
as a spray cleaner and a brand new brush. In the rear seat of the vehicle, the
police discovered a brand new bucket, a brand new gallon sized jug of Liquid
Fire, and sulfuric acid. The police determined that these items were purchased
from a True Value Hardware Store in Chicago and the bin in which Funches’s
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body was discovered was purchased at Walmart. Video surveillance from these
stores showed Barker and Octavius Barlow, Barker’s childhood friend.
Detective Santino also discovered that there was “a flurry of cell phone activity
between” the cell phones of Barker and Barlow from midnight or the late night
hours of June 21st into the early morning hours of June 22nd. Trial Transcript
Volume 3 at 55.
[17] On November 1, 2012, the State charged Barker with Count I, murder, and
Count II, feticide as a class B felony. On October 7, 2013, Forest Park Police
Officer Joseph Carrico executed a traffic stop on a vehicle in which Barker was
traveling as a passenger in Georgia. When Officer Carrico asked Barker for his
name, Barker told him it was Zoe Lyons. Barker attempted to flee but was
eventually arrested.
[18] On February 10, 2015, Barker filed a motion to suppress evidence seized from
“Defendant’s apartment located at 9059 Southmoor Street, Apartment 20,
Highland, Indiana.” Appellant’s Appendix Volume 2 at 144. He alleged that
he had an expectation of privacy in the apartment because he lived there with
Funches and that evidence was collected without a warrant or exigent
circumstances. On July 20, 2015, and January 22, 2016, the court held a
hearing on the motion to suppress. Heeringa testified that she had the authority
to enter the apartment as an employee and that an addendum in the lease
required residents to agree that “at any time for pretty much any reason we’re
allowed to go in their apartment” and “by any means that we see suitable.”
Transcript of Suppression Hearing Volume 2 at 12. Heeringa testified that she
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never received any complaints of an unauthorized individual living with
Funches. When asked if he recalled whether or not Funches’s family said
anything about Barker living with Funches, Detective Santino answered: “No.
No one ever said anything about them.” Id. at 57.
[19] After the State rested, Barker presented the testimony of several witnesses.
Tashika Walker, Barker’s sister, testified that Barker and Funches lived together
in the apartment on Southmoor Avenue, Barker paid the rent, and that Funches
“was just putting it in her name and taking it in.” Id. at 139. She testified that
certain items in the apartment belonged to Barker. On cross-examination, she
testified that she visited Barker and Funches at that apartment but “[n]ot too
often” and that she last saw Barker and Funches “a few days before the 21st” in
Chicago. Id. at 145, 149. She also testified that Barker received mail at her
father’s house at 8350 South Green Street in Chicago.
[20] On June 1, 2016, the court entered an eight-page order concluding that Barker
did not have standing to contest any possible unlawful search of the apartment
and that, even if he did have standing, the search was reasonable under
Litchfield and the Indiana Constitution, and denying Barker’s motion to
suppress. In part, the order states that Barker had not provided sufficient
evidence to establish that he lived in the apartment and that “[i]n fact, if
[Barker] claims to have lived in the apartment, that would be a violation of the
lease agreement.” Appellant’s Appendix Volume 3 at 5. The court found that
Barker “did not reside in Ms. Funches’ apartment and therefore he does not
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have standing to contest any unlawful search or seizure of Ms. Funches’
apartment.” Id. at 6.
[21] In October and November 2016, the court held a jury trial. Prior to trial,
Barker’s counsel renewed her request to suppress all evidence from Funches’s
apartment, and the court denied the motion. The State presented the testimony
of numerous witnesses. Ruth, Funches’s sister, testified on cross-examination
that Barker resided in the same apartment with Funches. In part, the State
presented evidence that a screwdriver was recovered from the apartment. See
Trial Transcript Volume 3 at 235. The DNA profile obtained from the swab of
the screwdriver matched Barker’s DNA profile. Trial Transcript Volume 6 at 8.
Dr. John D. Feczko testified that some of the wounds could have been caused
by a screwdriver. Trial Transcript Volume 5 at 108. Sharon Pollock, the
forensic DNA analyst, testified that Funches’s DNA was not found on the
screwdriver. Trial Transcript Volume 6 at 32.
[22] After the State rested, Walker, Barker’s sister, testified that Barker stayed with
“Angela” in the apartments in Highland and clarified that she was referring to
Funches and indicated that Barker lived with Funches. Id. at 80. She testified
that she had seen Barker and Funches together at that apartment previously and
that Barker kept items there including personal belongings, clothes, furniture,
jewelry, and a television. She testified that Barker had previously lived with his
father, Frank Barker, at 8350 South Green Street, and that Barker and Funches
were dating and expecting a baby together. She stated that Barker used
construction materials for work on her father’s house and that he used Quikrete
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or concrete and in June 2011 was fixing the piping and a hole in the ground in
the basement.
[23] On cross-examination, when asked why she called Funches Angela, Walker
answered: “Just thinking of something else. I know who she is.” Id. at 100.
Walker indicated that Barker did not continue the work at her father’s house
and that he was not “around to fix it up” after Funches’s death. Id. at 104. On
redirect examination, Walker testified that she was not surprised that Barker
moved in June of 2011 without notifying her because it was not unusual.
Walker also testified that she did not have any communication with him from
June 2011 until October 2013 when he was on the news.
[24] The jury found Barker guilty as charged. The court sentenced him to sixty-four
years for murder and nineteen years for feticide as a class B felony and ordered
the sentences to be served consecutively to each other for an aggregate sentence
of eighty-three years.
Discussion
[25] The issue is whether the trial court erred in admitting certain evidence.
“Because the trial court is best able to weigh the evidence and assess witness
credibility, we review its rulings on admissibility for abuse of discretion and
reverse only if a ruling is ‘clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights.’” Carpenter v.
State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252,
260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a
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search or seizure is a question of law that we consider de novo.” Id. Even if the
trial court’s decision was an abuse of discretion, we will not reverse if the
admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.
Ct. App. 1999), reh’g denied, trans. denied.
[26] In ruling on admissibility following the denial of a motion to suppress, the trial
court considers the foundational evidence presented at trial. Carpenter, 18
N.E.3d at 1001. If the foundational evidence at trial is not the same as that
presented at the suppression hearing, the trial court must make its decision
based upon trial evidence and may consider hearing evidence only if it does not
conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[27] Barker argues that he had standing to object to the warrantless search of the
apartment under both the Fourth Amendment and the Indiana Constitution.
He points to evidence that he lived in the apartment with Funches, he paid rent
and other bills, and a number of items such as clothing and furniture belonged
to him. He asserts that, even if he did not live at the apartment full-time, he
was a frequent guest and had a reasonable expectation of privacy. The State
argues that Barker did not have a reasonable expectation of privacy in
Funches’s apartment and did not have standing to challenge the initial entry
and brief search of the apartment.
[28] We note that Fourth Amendment rights are personal and may not be
vicariously asserted. Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (citing
Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S. Ct. 421, 425 (1978)), reh’g denied,
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cert. denied, 522 U.S. 1078, 118 S. Ct. 858 (1998). “A defendant ‘aggrieved by
an illegal search and seizure only through the introduction of damaging
evidence secured by the search of a third person’s premises has not had any of
his Fourth Amendment rights infringed.’” Id. (quoting Rakas, 439 U.S. at 134,
99 S. Ct. at 425). “[I]n order to challenge a search as unconstitutional, a
defendant must have a legitimate expectation of privacy in that which is
searched.” Id. “To challenge a search ‘a defendant must establish ownership,
control, possession, or interest’ in the premises searched.” Campos v. State, 885
N.E.2d 590, 598 (Ind. 2008) (quoting Peterson, 674 N.E.2d at 532-534). The
defendant must show a subjective and objective expectation of privacy in the
premises. Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577
(1979)). See also Peterson, 674 N.E.2d at 532 (“The burden is on the defendant
challenging the constitutional validity of a search to demonstrate that he had a
legitimate expectation in the premises searched.”) (citing Livingston v. State, 542
N.E.2d 192, 194 (Ind. 1989)).
[29] One difference between the federal and state analyses is terminology. Allen v.
State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), reh’g denied, trans. denied.
“In short, the U.S. Supreme Court has abandoned the concept of ‘standing.’”
Id. In Rakas, the United States Supreme Court determined that the “definition
of those [personal] rights [that is, whether the proponent is asserting his own
legal rights and interests rather than basing his claim for relief upon the rights of
third parties] is more properly placed within the purview of substantive Fourth
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Amendment law than within that of standing.” Id. (quoting Rakas, 439 U.S. at
140, 99 S. Ct. 421 (bracketed text inserted in Allen)).
[30] In Allen, we observed that the principal difference between the Fourth
Amendment and Article 1, Section 11 regarding the concept of standing was
articulated by the Indiana Supreme Court in Peterson:
We note that the federal inquiry into standing under the Fourth
Amendment focuses, in most part, on the defendant’s privacy
expectation in the premises searched. While cases interpreting
our state constitutional provision have also placed significant
focus on the premises searched, independent consideration is directed
to the defendant’s interest in the property seized.
Id. at 1097 (quoting Peterson, 674 N.E.2d at 534 (emphasis added in Allen)).
“The court recently acknowledged this difference: ‘the Indiana Constitution
provides protection for claimed possessions irrespective of the defendant’s
interest in the place where the possession was found.’” Id. (quoting Campos,
885 N.E.2d at 598; and citing Sisk v. State, 785 N.E.2d 271, 274 (Ind. Ct. App.
2003) (“While the inquiry into standing under the Indiana constitutional
provision places a significant focus on the premises searched, like the applicable
Fourth Amendment focus, independent consideration is directed to the
defendant’s interest in the property seized.”)). “Notwithstanding this
significant analytical difference, a review of our jurisprudence does not
demonstrate much of a difference, if any, in result when a defendant’s interest
in seized property is not at issue.” Id.
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[31] Despite the differences between the federal and state constitutional analyses, the
Indiana Supreme Court has noted that “‘[m]any search and seizure issues are
resolved in the same manner under both the Indiana and Federal
Constitutions.’” Id. at 1098 (quoting Campos, 885 N.E.2d at 596).3 With this
background in mind, we turn to the instant case. Barker does not claim that he
has an interest in any seized item. Rather, his challenge is based solely on his
asserted interest in the apartment. Thus, as stated in Campos, state
constitutional protection for claimed possessions is not at issue here. See id. at
1099. We see no reason why our resolution of this issue would be different
under the Indiana Constitution than it would be under the United States
Constitution. See id.
[32] Our focus then is whether Barker has established ownership, control,
possession, or interest in the premises. See Peterson, 674 N.E.2d at 534. Barker
must also show “a subjective and objective expectation of privacy in the
premises.” See Campos, 885 N.E.2d at 598 (citing Smith, 442 U.S. at 740, 99 S.
Ct. 2577).
3
In Allen, we noted:
Even so, Indiana courts have continued to use the “standing” terminology when discussing
Fourth Amendment claims. See, e.g., Campos, 885 N.E.2d at 598; Peterson, 674 N.E.2d at
532; Strangeway v. State, 720 N.E.2d 724, 726 (Ind. Ct. App. 1999). On the other hand, at
times we have acknowledged that the U.S. Supreme Court has dispensed with this
terminology. See Smith v. State, 744 N.E.2d 437, 439 (Ind. 2001); Edwards v. State, 832
N.E.2d 1072, 1075 n.2 (Ind. Ct. App. 2005); Best [v. State], 821 N.E.2d [419, 424 n.2 (Ind.
Ct. App. 2005)[, reh’g denied, trans. denied]; Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct.
App. 2002); Mays v. State, 719 N.E.2d 1263, 1266 (Ind. Ct. App. 1999), trans. denied (2000).
893 N.E.2d at 1097 n.4.
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This inquiry . . . normally embraces two discrete questions. The
first is whether the individual, by his conduct, has exhibited an
actual (subjective) expectation of privacy—whether . . . the
individual has shown that he seeks to preserve [something] as
private. The second question is whether the individual’s
subjective expectation of privacy is one that society is prepared to
recognize as reasonable—whether . . . the individual’s
expectation, viewed objectively, is justifiable under the
circumstances.
Smith, 442 U.S. at 740, 99 S. Ct. at 2580 (quotations and citations to Katz v.
United States, 389 U.S. 347, 88 S. Ct. 507 (1967), omitted). “A person may
maintain more than one home or place of habitation with the expectation that
both will be free from an unlawful intrusion.” Mitchell v. State, 259 Ind. 418,
423, 287 N.E.2d 860, 863 (1972). “As the United States Supreme Court has
held, ‘an overnight guest in a home may claim the protection of the Fourth
Amendment, but one who is merely present with the consent of the
householder may not.’” Fox v. State, 983 N.E.2d 1165, 1168 (Ind. Ct. App.
2013) (quoting Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469 (1998)).
[33] The record contained evidence that Barker lived in Chicago. Funches listed
him as her emergency contact on her application for residency and his address
as 9350 South Green. Multiple documents which were introduced by the
defense and admitted by the court found in Funches’s apartment listed Barker’s
address as Chicago. The record reveals that Funches was the only individual
listed as a resident on the lease which she signed on January 29, 2011.
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[34] At the suppression hearing, Walker testified that Barker lived in Indiana with
Funches “[f]rom the time she signed the lease” and stated “[m]eaning her
moving in there.” Transcript of Suppression Hearing Volume 2 at 152. At
trial, when asked how long Funches and Barker had lived in the apartment,
Walker answered: “It wasn’t long. I believe they moved in March there.” Trial
Transcript Volume 6 at 81. At trial, on cross-examination, Ruth, Funches’s
sister, testified that it was fair to say that Funches lived with Barker, that he
resided in the same apartment with Funches, and that Barker was not an
overnight guest. Trial Transcript Volume 2 at 61. On cross-examination,
Mattie Parker, a person who grew up with Funches, testified that Barker lived
with Funches in June 2011. Id. at 83. The lease provided that “[v]isitors will be
limited to 2 persons staying with Resident for a maximum of 14 days, whether
consecutive or individually during each year of the Lease term.” State’s
Suppression Hearing Exhibit 3. Given that Funches was the only individual
listed on the lease and the lease limited visitors to stays of no more than
fourteen days, we cannot say that Barker has demonstrated a reasonable
objective expectation of privacy in the premises.
[35] We also note the condition of the apartment. The apartment was described as
being in “complete disarray” by Heeringa. Transcript of Suppression Hearing
Volume 2 at 10. Officer Norris observed that “everything was stacked up in the
kitchen” and “everything was in disarray.” Id. at 165. The bedroom did not
have any mattresses or carpet, what appeared to be stains were present on the
floor, and the closet mirror was cracked. During his walkthrough of the living
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room, kitchen, and hallway, Detective Santino did not see a cot, a sleeping bag,
or anything to indicate that someone was staying there that day. In the
bedroom, Detective Santino observed that there was not even a mattress or box
spring and it did not appear to him that anyone was staying in the bedroom.
Detective Santino indicated that the apartment appeared abandoned “[f]or all
practical purposes.” Id. at 85.
[36] We conclude that Barker has not demonstrated that he could contest the search
of Funches’s apartment. See Peterson, 674 N.E.2d at 533 (observing in part that
the apartment was leased to the defendant’s mother and sister, the mother paid
the rent, and mother had the sole determination as to whether or not he could
reside at the apartment, and concluding that the defendant lacked standing to
challenge the search); Allen, 893 N.E.2d at 1099-1100 (holding that a defendant
must show a legitimate right to the premises searched, that the defendant was a
trespasser, and that he made no showing that he had a legitimate right to
control and possess the residence, and concluding that the defendant lacked
standing to challenge the searches of the residence).
[37] Even assuming that Barker could challenge the initial searches of the
apartment, we cannot say that reversal is warranted under either the Fourth
Amendment or the Indiana Constitution. We first consider the Fourth
Amendment.
A. Fourth Amendment
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[38] Barker argues an exigency in determining whether Funches was in the
apartment and in need of assistance did not exist at the time that the police
entered the apartment without a warrant. He cites Mincey v. Arizona, 437 U.S.
385, 394 (1978), in which the United States Supreme Court held that there was
no “murder scene exception” to the Fourth Amendment’s search warrant
requirement. He asserts the admission of all of the evidence from the apartment
and any derivative evidence was not harmless error.
[39] Barker does not cite to the record or point to specific testimony or exhibits that
were retrieved by the Highland Police after receiving information from the
Chicago Police that Funches’s body had been tentatively identified. Without
citation to the record, Barker asserts that the “erroneously admitted evidence
includes all of the descriptions and photographs of the scene” and “the blood
and DNA evidence from the scene.” Appellant’s Brief at 19. He argues that
any evidence derivatively gained as a result of the information or leads obtained
during the unlawful search should be barred from admission at trial under the
fruit of the poisonous tree doctrine.
[40] The State argues that the search was reasonable and justified by exigent
circumstances and valid consent. The State also argues that, even if the trial
court erred by admitting the photographs, the error was harmless.
[41] The Fourth Amendment to the United States Constitution provides, in
pertinent part: “[t]he right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
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violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a
warrant, the State bears the burden to show that one of the well-delineated
exceptions to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329,
331 (Ind. 2016).
[42] One well recognized exception to the warrant requirement is for an entry under
emergency circumstances. Vitek v. State, 750 N.E.2d 346, 348-349 (Ind. 2001),
reh’g denied. “It is not necessary for police to have a warrant to enter a residence
when the circumstances suggest a reasonable belief that a person within the
premises is in need of aid.” Id. at 349 (citing Stewart v. State, 688 N.E.2d 1254,
1257 (Ind. 1997)). The Indiana Supreme Court has “recognized that there can
be a reasonable belief that a person may be in need of aid within a premises
when the occupant has been missing.” Id. “Most cases upholding this
exception have found that a person’s absence, combined with other
circumstances, have created the exigent circumstances necessary for a
warrantless search.” Id. “Other courts have also recognized that warrantless
searches may be appropriate to seek an occupant reliably reported missing.” Id.
(citing 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 6.6(a) (1996) at 396;
United States v. Presler, 610 F.2d 1206 (4th Cir. 1979) (upholding a warrantless
search where the defendant’s landlady had not seen him for some time and an
unusual odor was emanating from his room); State v. Blades, 225 Conn. 609, 626
A.2d 273 (1993) (upholding warrantless search where victim’s relatives worried
about her whereabouts and she had been involved in a troubled marriage and
her mother believed her husband had harmed her)).
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[43] The record reveals that Officer Norris received a dispatch regarding a welfare
check, one of the leasing agents told him that there were blood stains on some
rolled-up carpet inside of the apartment, and the leasing agents mentioned to
him that they had “peeked in and seen some things which then led them to
believe that they should back out and call the police.” Transcript of
Suppression Hearing Volume 2 at 162. We conclude that the initial entry into
the apartment by police was not improper. See Vitek, 750 N.E.2d at 349
(holding that the circumstances of the case supported the officer’s search of the
defendant’s home). See also JOHN WESLEY HALL, JR., SEARCH AND SEIZURE
1238 (4th ed. 2012) (“Entries are justified to look for missing persons.”) (citing
People v. Wharton, 809 P.2d 290 (Cal. 1991), cert. denied, 502 U.S. 1038, 112 S.
Ct. 887 (1992); Chaney v. State, 612 P.2d 269 (Okla. Crim. App. 1980), cert.
denied, 450 U.S. 1025, 101 S. Ct. 1731 (1981)).
[44] “Although the warrant requirement is relaxed somewhat where, as in this case,
there is a legitimate missing persons claim, there is no unlimited ‘missing
persons’ exception.” Vitek, 750 N.E.2d at 349. “Even in a missing persons
case, there must be exigent circumstances to justify a warrantless search.” Id.
See also WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 6.6(a) (5th ed. October 2017 Update) (“As to what may
be done by the police or other public authorities once they are inside the
premises, this must be assessed upon a case-by-case basis, taking into account
the type of emergency which appeared to be present. . . . The officer’s post-
entry conduct must be carefully limited to achieving the objective which
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justified the entry—the officer may do no more than is reasonably necessary to
ascertain whether someone is in need of assistance and to provide that
assistance.”).
[45] The record reveals that the officers were not informed that the Chicago Police
had tentatively identified the body as that belonging to Funches until ninety
minutes to two hours after Detective Santino arrived at the apartment. We
cannot say that some further investigation prior to being informed that a body
was discovered was improper. See Wharton, 809 P.2d at 325 (“Because there
existed the possibility that the victim was still alive, we cannot fault the officers’
decision to investigate further.”).4
[46] With respect to consent, “[c]onsent to search is valid when it is given
voluntarily, voluntariness is a question of fact determined from the totality of
the circumstances.” Garcia-Torres v. State, 949 N.E.2d 1229, 1237 (Ind. 2011).
We observe that Heeringa testified that she had the authority to enter the
apartment as an employee and that an addendum in the lease requires residents
to agree that “at any time for pretty much any reason we’re allowed to go in
their apartment” and “by any means that we see suitable.” Transcript of
4
In his statement of facts, Barker asserts that the CSI unit was processing the scene when Detective Santino
received the notice from the Chicago Police regarding the discovery of the body. He points to a portion of
the transcript of the suppression hearing at which Detective Santino indicated that the crime lab “was there
and they were still processing it” when he received information about the body from the Chicago Police.
Transcript of Suppression Hearing Volume 2 at 91. However, Barker later asserts, without citation to the
record, in his argument section that Detective Santino “called in the CSI unit and had it process the
apartment. This was all prior to getting a warrant and prior to receiving notification from the Chicago Police that
[Funches’s] body had been found.” Appellant’s Brief at 16 (emphasis added).
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Suppression Hearing Volume 2 at 12. An addendum to the lease was signed by
Funches and provides in part: “ACCESS. Resident shall allow Owner and his
agents free access to the apartment at all reasonable times to exhibit, repair or
inspect the same or for any other reasonable business purpose connected with
the operation of the building.” State’s Suppression Hearing Exhibit 3.
Heeringa also testified that taking time to check on the welfare of the tenants
was a good business practice. Newton, the leasing consultant, testified that a
welfare check was something they did upon request and that they did it a few
times a year. Further, Officer Norris spoke with the apartment employees, and
they gave him information as to the apartment that he needed to check. The
leasing agents informed Officer Norris that “a female had not been seen or
heard from in a while, so they were going to let [them] into the apartment, if we
could have a welfare check on her.” Transcript of Suppression Hearing Volume
2 at 162. When asked if she “let [the police] back into the apartment,”
Heeringa answered: “I did.” Id. at 11. Under these circumstances, we
conclude that the officers had consent to enter Funches’s apartment.
[47] Even assuming the collection of evidence following the initial walkthrough was
improper, admissions of evidence in violation of the Fourth Amendment are
subject to harmless error analysis. Smock v. State, 766 N.E.2d 401, 407 (Ind. Ct.
App. 2002) (citing Jackson v. State, 669 N.E.2d 744, 750 (Ind. Ct. App. 1996)).
Harmless error occurs when the conviction is supported by substantial
independent evidence of guilt which satisfies the reviewing court that there is no
likelihood that the erroneously admitted evidence contributed to the conviction.
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Morales v. State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). Violations of the
Fourth Amendment must be harmless beyond a reasonable doubt. Id. We
must find that there is no substantial likelihood the error contributed to the
verdict, or, in other words, that the error was unimportant in relation to
everything else before the jury on the issue in question. Id.
[48] Newton, a leasing consultant, testified without objection that she entered
Funches’s apartment to check on her welfare and observed that the carpet was
missing from the dining room and the hallway area, it had been ripped out, and
there was rolled-up carpet in the living room. She testified that there was
furniture located in various areas of the apartment where it should not have
been, such as a dresser in the kitchen, and the apartment looked like it had been
ransacked.
[49] Pettigrew testified that she lived at the apartment complex and observed two
men coming down the stairs with a bin on June 21, 2011, around 11:00 p.m.
and recognized one of the men as Barker. She testified that she made eye
contact with Barker, he “ducked his head real quick,” and “it troubled [her]
spirit.” Trial Transcript Volume 3 at 186, 202. She stated that the men
struggled with the bin and headed towards a green Caravan that Barker
recognized as the same Caravan that Barker had driven previously. She also
observed that the Caravan had two mattresses on top. She testified that she did
not identify anyone in the photo lineups she was shown by the police “right
then and there,” but she identified Barker as Funches’s boyfriend whom she
saw that night. Id. at 192. On cross-examination, when asked if it “[d]idn’t
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look like” Barker on the photo lineup, she answered: “I wasn’t quite sure.
Maybe I should say that. But I know it’s him now.” Id. at 196.
[50] During cross-examination, Detective Santino indicated that Barker’s Illinois
driver’s license, a traffic warning issued to Barker, a receipt for motor vehicle
immobilization and/or impound vehicle with Barker’s name on it, and Barker’s
application for a truck driving school, were found in the apartment. Defense
counsel introduced and the court admitted these documents, all of which
indicated Barker’s address as being in Chicago.
[51] FBI Special Agent Peasley testified that he investigated identifying markers on
the bin in which Funches’s body was found. He was able to locate the
manufacturer of the tote in which Funches’s body was found and determined
that totes with that UPC code were sold only at Walmart. Surveillance video
and photos taken from the video on the evening of June 21, 2011, from the
Walmart in Schererville were admitted. Highland Police Investigator Shaginaw
testified that Barker and Barlow were seen in the Walmart video.
[52] Highland Police Investigator Douglas Shaginaw testified that he investigated
where the items found in the green Taurus were purchased. He retrieved a
video from a True Value located in Chicago, determined that a vehicle arrived
on the morning of June 22, 2011, recognized a person on the surveillance video
as Barker, and learned that the person to Barker’s left in the video was Barlow.
Investigator Shaginaw took photographs of certain pieces of merchandise inside
the store, including Quickrete, blue and white handled scrub brushes, Liquid
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Fire, and a plastic bucket, which were all similar to the evidence that was
collected from the Taurus. He also photographed a Fortress brand lock at the
store. The court admitted a sales receipt from True Value, and Investigator
Shaginaw testified that the prices on the receipt correlated to the prices of the
items found in the Taurus as well as a price of $6.49 which correlated to the
Fortress brand lock. He testified that the lock in the True Value was identical to
the lock that was used to secure the garage which contained Funches’s body.
[53] Sharon Pollock, a forensic DNA analyst employed by the Indiana State Police
Laboratory, testified that the partial Y-STR DNA profile obtained from
Funches’s fingernail clipping was consistent with the Y-STR DNA profile
obtained from Barker.5
[54] In light of the evidence, particularly the evidence placing Barker at the
apartment complex on the day of the murder, of him moving a bin out of the
apartment that night, and of the purchases including a bin and a Fortress brand
lock that were the same bin and lock later discovered at the scene where
Funches’s body was found, we conclude that any error in the admission of
evidence obtained from the apartment was harmless. We cannot say that
Barker’s rights under the Fourth Amendment were violated.
5
Specifically, Pollock testified that the partial Y-STR DNA profile obtained from the clipping was
“consistent with the Y-STR DNA profile obtained from Isiah Barker and is not consistent with the Y-STR
DNA profile obtained from Octavius Barlow. Therefore, Isiah Barker and all of his male paternal relatives
cannot be excluded as potential Y-STR DNA contributors to the sample.” Trial Transcript Volume 6 at 43.
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B. Article 1, Section 11
[55] Article 1, Section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
[56] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
Section 11 of our Indiana Constitution separately and independently. Robinson
v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11
claim, the State must show the police conduct ‘was reasonable under the
totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d
1200, 1205-1206 (Ind. 2008), reh’g denied). “The focus of the exclusionary rule
under the Indiana Constitution is the reasonableness of police conduct.”
Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). “We consider three factors
when evaluating reasonableness: ‘1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities, and 3) the
extent of law enforcement needs.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield
v. State, 824 N.E.2d 356, 361 (Ind. 2005)).
[57] Barker argues that the degree of concern, suspicion, or knowledge that the
police had was not terribly strong and that the fact that Funches was not in the
apartment rendered the need to enter the apartment not strong. He contends
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there was no indication that something illegal was occurring at that time in the
apartment and that the degree of intrusion was significant because law
enforcement repeatedly entered the apartment. He further asserts that law
enforcement’s needs were minimal. The State maintains that the degree of
suspicion was significant, the degree of intrusion was reasonable, and the extent
of law enforcement needs indicated that the entry into the apartment was
reasonable.
[58] With respect to the degree of concern, suspicion, or knowledge that a violation
had occurred, Officer Norris received a dispatch regarding a welfare check and
spoke with the apartment employees who told him that they saw things which
led them to believe they should back out and call the police. One of the leasing
agents also told Officer Norris that there were blood stains on some rolled-up
carpet inside the apartment. As for the degree of intrusion, we acknowledge
that the warrantless entry of a home is generally considered a large intrusion.
See Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct. App. 2010) (“It is well
established that ‘[h]ouses and premises of citizens receive the highest
protection’ under our constitution.”) (quoting Moran v. State, 644 N.E.2d 536,
540 (Ind. 1994), reh’g denied, abrogated on other grounds by Litchfield, 824 N.E.2d
356). In this case, however, the officers did not break down the door and barge
into the home. On the contrary, the police were contacted by a leasing agent at
the apartment complex regarding a welfare check and the leasing agent opened
the door. The officers walked through the apartment, Funches was listed on the
lease as the only resident, and Detective Santino did not see a cot, a sleeping
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bag, a mattress, or anything to indicate that someone was staying in the
apartment. We also observe that Detective Santino stated that the apartment
appeared abandoned “[f]or all practical purposes.” Transcript of Suppression
Hearing Volume 2 at 85. Under the circumstances, the degree of intrusion was
not high.
[59] With respect to the third factor listed above, we observe that police officers have
a caretaking function as well as an investigatory function. See Montgomery v.
State, 904 N.E.2d 374, 382 (Ind. Ct. App. 2009), trans. denied. “It is because of
concerns among citizens about safety, security, and protection that some
intrusions upon privacy are tolerated, so long as they are reasonably aimed
toward those concerns.” Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). The
extent of law enforcement needs was strong given the circumstances leading to
the search including the welfare check for Funches. Under the totality of the
circumstances, we conclude that the search was reasonable and did not violate
Barker’s rights under Article 1, Section 11 of the Indiana Constitution.
Conclusion
[60] We conclude that reversal is not warranted under the Fourth Amendment of
the United States Constitution or Article 1, Section 11 of the Indiana
Constitution.
[61] For the foregoing reasons, we affirm Barker’s convictions.
[62] Affirmed.
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Najam, J., and Kirsch, J., concur.
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