Shawn Wayne Kinningham v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Jul 21 2015, 6:43 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Terry A. White Gregory F. Zoeller
Olsen & White, LLP Attorney General of Indiana
Evansville, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Wayne Kinningham, July 21, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1411-CR-503
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Magistrate
Appellee-Plaintiff
Trial Court Case No.
82C01-1306-FC-634
Mathias, Judge.
[1] Shawn Wayne Kinningham (“Kinningham”) was convicted in Vanderburgh
Circuit Court of three counts of Class D felony attempted theft. Kinningham
appeals his convictions and sentence raising four issues. We conclude that the
following issue is dispositive: whether the trial court abused its discretion when
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it admitted evidence derivatively obtained as a result of the illegal search of
Kinningham’s hotel room.
[2] We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] From April 27, 2013 to May 1, 2013, Kinningham and his partner David Slaton
approached several car dealerships in the Evansville area, negotiated purchase
prices for numerous vehicles, and attempted to purchase the vehicles with
checks drawn on Kinningham’s account. Kinningham’s checking account was
closed several days before Kinningham entered into negotiations with the
dealerships. Thereafter, on June 7, 2013, Kinningham was charged in
Vanderburgh Circuit Court with four counts of attempted theft and four counts
of check deception.
[4] Specifically, on Saturday, April 27, 2013, Kinningham, accompanied by Slaton,
spoke to a salesman at D Patrick Ford in Evansville and negotiated the
purchase an Audi and a BMW for $105,000. Kinningham gave the dealership a
“hold check” in the amount of $2,000 drawn on Kinningham’s Citibank
account. An employee of the dealership explained that the purchase of the
vehicles could not be completed until the dealership could verify that
Kinningham had funds available.
[5] Slaton attempted to apply for a loan for the BMW, and he completed a
purchase order for the BMW. However, Slaton’s loan application was rejected
because of his low credit score. Kinningham and Slaton were unable to obtain
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an automobile from D Patrick and never returned to the dealership. Therefore,
D Patrick never presented Kinningham’s check to the bank for payment.
[6] After they left D Patrick, Kinningham and Slaton proceeded to Expressway
Dodge dealership in Evansville. After they were told that the dealership closed
at 8:30 p.m., they went to eat dinner and returned fifteen minutes before
closing. Kinningham negotiated a purchase price of $37,075 for a Chrysler 300,
and the salesman drafted a purchase agreement. Kinningham told the salesman
that Slaton would be the vehicle owner, and Slaton signed the sales agreement.
[7] Kinningham wrote a check for the entire purchase price of the vehicle.
However, the dealership would not allow them to take the car because it could
not verify the availability of funds in Kinningham’s account. The check was
presented to the bank the following Monday, and it was returned for
insufficient funds.
[8] On April 30, 2013, Kinningham and Slaton test drove a Lexus LX at Kenny
Kent Lexus. Later that day, Kinningham called the dealership and offered to
pay $93,000 for the vehicle. Kinningham told the salesperson that he was too
intoxicated to drive, and the salesperson agreed to meet Kinningham and
Slaton to complete the sale.
[9] The salesperson proceeded to the Le Merigot Hotel where Kinningham and
Slaton were staying, and he was met by Slaton who gave him a $93,000 check
signed by Kinningham. Slaton returned to the dealership with the salesperson
who ran Slaton’s credit report. The credit check listed multiple credit checks
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from other car dealerships raising a “red flag.” Because it was also too late in
the day to verify Kinningham’s account balance, the dealership refused to give
the vehicle to Slaton and took him back to the hotel.
[10] On May 1, 2013, Kinningham and Slaton negotiated the purchase of a 2007
Mercedes Benz from Wright Select Motors. Slaton completed the purchase
agreement and made a $500 non-refundable payment. Kinningham wrote a
check for the remainder in the amount of $17,304. Because Slaton had made
the $500 non-refundable payment, the dealership allowed them to take the
Mercedes, which they had in their possession until their arrest the next day. The
Mercedes was returned to Wright Select Motors.
[11] Detective Rick Chambers of the Jasper Police Department was investigating
similar activities of Kinningham and Slaton in Dubois County when he learned
that they were staying at the Le Merigot Hotel in Evansville. On May 2, 2013,
the detective proceeded to the hotel and arrested Kinningham and Slaton
without a warrant. The detective then searched the hotel room without a
warrant and collected Kinningham’s checkbook, two phones, and an iPad.
[12] A federal agent present at the hotel during the search contacted Agent Moore
and told him that he suspected that Kinningham and Slaton had written bad
checks to various car dealerships in the area. Later that same day, United States
Secret Service Agent Michael Moore proceeded to the Le Merigot Hotel, and
hotel employees gave him the remainder of Kinningham’s and Slaton’s
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belongings.1 These items included business cards from Evansville car
dealerships and a note with the name of the sales person at Wright Select
Motors where Kinningham and Slaton obtained the Mercedes.
[13] Agent Moore then began to investigate Kinningham’s and Slaton’s activities at
the dealerships from April 27 through May 1, 2013. As a result of Moore’s
investigation, four counts of attempted theft and four counts of check deception
were filed against Kinningham.
[14] A jury trial was held on June 25, 2014. Kinningham was found guilty of Class
D felony attempted theft and Class A misdemeanor check deception for his
activities at D Patrick Ford, Class D felony attempted theft and Class D felony
check deception for his activities at Expressway Dodge, and Class D felony
attempted theft and Class D felony check deception for his activities at Kenny
Kent Lexus. Kinningham was found not guilty of attempted theft and check
deception for the Mercedes he and Slaton acquired at Wright Select Motors.
[15] At the sentencing hearing, which was not held until October 30, 2014, the trial
court declined to enter judgment of conviction on the check deception charges
due to double jeopardy concerns. The court ordered Kinningham to serve
concurrent terms of two and one-half years for the three attempted theft
1
On the dates relevant to the case before us, Kinningham was on supervised release for a wire fraud
conviction in the United States District Court, Eastern District of Pennsylvania. Specifically, Kinningham
was convicted of fraudulently representing that he was the president of a corporation and paid for air travel
and limousine services with a corporate credit card, knowing that he did not have sufficient credit to cover
the cost of the services, more than $167,000. See Appellant’s App. p. 175.
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convictions. However, the trial court ordered Kinningham to serve his sentence
consecutive to previously imposed sentences in Dubois County and in federal
court. Kinningham was also given credit for time served in jail from May 3 to
October 29, 2014. Kinningham now appeals. Additional facts will be provided
as needed.
Discussion and Decision
[16] Citing the “fruit of the poisonous tree” doctrine and its application to both the
Fourth Amendment and Article 1, Section 11, Kinningham argues that the trial
court abused its discretion when it admitted evidence derivatively obtained
from the illegal, warrantless search of his hotel room.2 Questions regarding the
admission of evidence are entrusted to the sound discretion of the trial court.
Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 2013), trans. denied.
Accordingly, we review the court’s decision on appeal only for an abuse of that
discretion. Id. The trial court abuses its discretion only if its decision regarding
the admission of evidence is clearly against the logic and effect of the facts and
circumstances before it, or if the court has misinterpreted the law. Id.2
The State contends that Kinningham waived this argument by failing to object to the evidence obtained as a
result of the warrantless search of his hotel room. However, Kinningham objected on these grounds at trial
and requested a continuing objection to the admission of evidence related to Kinningham’s actions at the car
dealerships. Tr. p. 119. He renewed his continuing objection throughout the trial. See e.g. Tr. pp. 144-45.
Moreover, Indiana Rule of Evidence 103(b) states that “[o]nce the court rules definitively on the record at
trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”
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[17] Prior to trial, the trial court determined that Detective Chambers’s warrantless
search of Kinningham’s hotel room was illegal.3 Detective Chambers and a
federal agent present during the search provided information to Agent Moore
found during the search including the duplicate copies of the checks
Kinningham gave to the car dealerships. Therefore, Kinningham argues that
“[b]ut for the unconstitutional seizure of the documents, law enforcement
would have had no knowledge of the alleged acts of check deception and
attempted theft.” Appellant’s Br. at 16. The evidence gathered as a result of the
search of his hotel room should have been suppressed as “fruit of the poisonous
tree.” Id.[18] The “fruit of the poisonous tree” doctrine bars the admissibility in a criminal
proceeding of evidence obtained in the course of unlawful searches and
seizures. See Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000). “The
doctrine operates to bar not only evidence directly obtained, but also evidence
derivatively gained as a result of information learned or leads obtained during
an unlawful search or seizure.” Id.[19] For example, in Gyamfi v. State, 15 N.E.3d 1131 (Ind. Ct. App. 2014), Gyamfi
made purchases with a stolen credit card in Hancock County and attempted
purchases in Boone County. While investigating Gyamfi’s attempt to make
purchases with the stolen credit card in Boone County, a Boone County law
enforcement officer illegally searched Gymafi’s vehicle and discovered the
3
The State does not challenge this ruling on appeal.
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receipt from the Hancock County transaction. A Boone County detective
contacted the Hancock County Sheriff’s Department to provide information
about the Hancock County purchase Gyamfi made with the stolen credit card.
Gymafi was charged in Hancock County with fraud, theft, and forgery.
[20] The Boone County charges were eventually dismissed after the trial court
granted Gyamfi’s motion to suppress evidence obtained during the illegal
search of his person and vehicle. Gyamfi also moved to suppress the evidence
in the Hancock County prosecution and argued that the State’s evidence was
derivatively obtained as a result of the illegal search during the Boone County
investigation. The trial court suppressed only the receipt found in Gyamfi’s
vehicle and denied his motion to suppress all other evidence derived from the
illegal search, and he was found guilty as charged.
[21] On appeal, Gyamfi argued that the evidence of the Hancock County purchase
was inadmissible under the doctrine of the fruit of the poisonous tree. Our court
observed that discovery of the receipt of the Hancock County transaction
prompted Boone County law enforcement to contact the Speedway store in
Hancock County and obtain the surveillance video of the transaction. A Boone
County detective then contacted a Hancock County sheriff’s deputy, a
representative of the credit card company, and the Speedway gas station’s
corporate office. The Hancock County sheriff’s deputy testified that “all evidence
presented in the Hancock County case was ‘all derived from those [] officers
making the stop there in Boone County.’” Id. at 1136 (record citation omitted).
The Hancock County detective stated that he obtained most of the information
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on the case from Boone County law enforcement officers. Therefore, our court
concluded that the Gyamfi’s motion to suppress should have been granted
because “the contested evidence that was nevertheless admitted amounted to
evidence obtained as a direct result of information that [the Boone County
officer] had learned during the illegal search.”4 Id. at 1136-37.
[22] N.S. v. State, 25 N.E.3d 198 (Ind. Ct. App. 2015), similarly involved evidence
derived from an illegal vehicle search. In that case, N.S. was arrested after
police officers received a stolen vehicle report. N.S. was a back seat passenger in
the vehicle, and both he and the driver were arrested. After N.S. was arrested,
his backpack, which was located in the backseat of the vehicle, was searched,
and officers discovered a firearm and marijuana.
[23] During the delinquency proceedings, N.S. argued that admission of the firearm,
marijuana, and any derivative testimony violated his Fourth Amendment
rights.5 The juvenile court granted N.S.’s motion to suppress after concluding
that his backpack was illegally searched but allowed the driver, D.M., to testify
that N.S. had shown him the firearm and marijuana, which contraband was
also admitted into evidence.
[24] On appeal, the State argued that the D.M.’s knowledge of the contraband was
gained independently from the officer’s illegal search of N.S.’s backpack. We
observed:
4
Our court declined to address the State’s arguments under the attenuation and inevitable discovery
doctrines because neither doctrine has application under the Indiana Constitution. Id. at 1137-38.
5
At the delinquency hearing, N.S. also argued that his Indiana Constitutional rights had been violated, but
our court resolved the issue on Fourth Amendment grounds.
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[N]o facts of record point to an intervening circumstance to clear
the taint of the illegal search. D.M. did not, on his own initiative,
direct officers to contraband. Rather, for a favorable plea bargain,
he made an in-court identification of contraband he claimed to
know that N.S. had possessed. D.M., who had been discovered
driving the stolen vehicle, specifically acknowledged receiving a
benefit in exchange for his testimony. At the same time, he
denied that he had ever spoken with police officers regarding the
contents of N.S.'s backpack prior to his testimony.
Both the physical exhibits and D.M.'s testimony were fruit of the
illegal search. When “none of [the] evidence should have been
admitted . . . the conviction cannot stand.”
Id. at 202 (citation omitted). Our court noted that “while a companion may
possess independent knowledge, he or she is an ‘independent source’ only if the
illegal search or seizure did not produce a ‘lead’ to law enforcement.” Id. (citing
Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013)).
[25] In this case, Agent Moore began to investigate Kinningham only after he
received information that was obtained due to Detective Chambers’s illegal
search of Kinningham’s hotel room. Detective Chambers had no knowledge of
Kinningham’s negotiations with the car dealerships at issue in this case prior to
entering his hotel room. Tr. p. 20. The federal agent who contacted Agent
Moore did so because “he saw other evidence laying around the room and
thought that it linked [Kinningham and Slaton] to Evansville area crimes.” Tr.
p. 24. The federal agent also told Agent Moore about Kinningham’s “crimes
involving vehicles in Dubois County.” Tr. p. 27. After receiving this
information, Agent Moore “canvassed all the major dealerships in Evansville
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for information regarding [Kinningham and Slaton] and possibly stolen vehicles
purchased with bad checks.” Id.[26] Agent Moore believed that Kinningham and Slaton had been arrested pursuant
to a warrant. Tr. pp. 37-38. On the date of arrest, he searched the hotel room
after a friend of Kinningham and Slaton had gathered their belongings. The
hotel manager told Agent Moore that anything remaining in the room had been
abandoned. Agent Moore found business cards for salesmen at D Patrick Ford
and Expressway Dodge.
[27] The day after Detective Chambers’s warrantless search of Kinningham’s hotel
room, Agent Moore looked at the checkbook that Detective Chambers seized
during that search. During his investigation, Agent Moore initiated contact
with and collected copies of Kinningham’s checks and sales documents from D
Patrick Ford, Expressway Dodge, Kenny Kent Lexus, and Wright Select
Motors. None of the car dealerships involved contacted law enforcement to
report possible criminal activity.
[28] Without question, Agent Moore’s investigation of Kinningham and his
activities with car dealers in Vanderburgh County derived solely from evidence
obtained during the illegal search of Kinningham’s hotel room. Therefore, the
evidence Agent Moore gathered from the car dealerships, the duplicate copies
of Kinningham’s checks and evidence of purchase price negotiations, was the
fruit of the poisonous tree pursuant to Article 1, Section 11 of the Indiana
Constitution. See Gyamfi, 15 N.E.3d at 1138.
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[29] Under the Fourth Amendment, the “fruit of the poisonous tree” doctrine “has
no application when the derivative evidence has an independent source, when
the connection between the lawless conduct of the police and the discovery of
the challenged evidence has ‘become so attenuated as to dissipate the taint, and
when the challenged evidence would inevitably have been properly obtained.”
Id. (citations and internal quotations omitted). “The question is if the derivative
evidence has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” Clark v. State, 994
N.E.2d 252, 266 (Ind. 2013). Courts generally consider the time elapsed
between the illegality and the acquisition of the evidence, the presence of
intervening circumstances, and the purpose and flagrancy of the official
misconduct. Id. The defendant must first prove the Fourth Amendment
violation and that the evidence was a “fruit” of that search; the State must then
show that the evidence may nevertheless be admitted. Id. at 267; see also Hanna,
726 N.E.2d at 389.
[30] Agent Moore did not engage in any official misconduct as he had no reason to
know that Detective Chambers and other federal law enforcement officers
illegally searched Kinningham’s hotel room. However, nothing in the record
could lead us to conclude that Agent Moore would have independently
discovered evidence that Kinningham attempted to purchase vehicles from car
dealerships with checks written on a closed account. Also, no intervening
circumstance exists to remove the taint of the illegal search. We acknowledge
the State’s argument that the employees from the dealerships voluntarily
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testified at trial, but Agent Moore never would have investigated Kinningham’s
negotiations with those dealerships absent evidence derived from the illegal
search. Therefore, we reach the same conclusion under a Fourth Amendment
analysis and hold that the evidence obtained by Agent Moore should not have
been admitted as fruit of the poisonous tree.6
[31] For these reasons, the trial court abused its discretion when, over Kinningham’s
continuing objection, it allowed employees from the four dealerships to testify,
and admitted into evidence the checks drawn on Kinningham’s Citibank
account and the documents detailing Kinningham’s and Slaton’s sales
negotiations with car dealerships. We therefore reverse Kinningham’s
convictions for attempted theft and check deception and remand this case to the
trial court for proceedings consistent with this opinion.
[32] Reversed and remanded for proceedings consistent with this opinion.
May, J., and Robb, J., concur.
6
The State unpersuasively relies on United States v. Ceccolini, 435 U.S. 268 (1978). The facts of Ceccolini are
distinguishable from those in this appeal. In that case, the law enforcement officer accidentally discovered
information concerning an illegally gambling operation while visiting with his friend, an employee of the
defendant’s flower shop. The FBI had the flower shop under surveillance prior to the incident, and therefore,
the FBI was aware of the shop employee’s relationship with the defendant. Four months elapsed between the
date of the illegal search and FBI’s initial contact with the shop employee. In holding that the defendant’s
employee’s testimony was admissible, the Supreme Court observed that there was “not the slightest evidence
to suggest” that the police officer entered the shop or looked in the envelope left on the counter “with the
intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he
entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify
against respondent.” Id. at 279-80.
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