Divided COA Upholds Drug, Firearm Convictions, Can’t Solve Gun ‘Conundrum’

Olivia Covington for www.theindianalawyer.com

Though the warrantless search that led to a man’s drug- and firearm-related convictions was lawful, a divided panel of the Indiana Court of Appeals was stumped on how to resolve the “conundrum” of when or if the man’s gun can be returned to him.

In Darnell Cleveland v. State of Indiana, 18A-CR-2298, Indianapolis Metropolitan Police Officers Eric Parrish and Nickolas Smith stopped a Ford Explorer after observing the vehicle speeding and learning the license plate number was registered to a Chevrolet. As the officers approached the vehicle, they smelled raw marijuana.

While searching the vehicle’s driver — who had an outstanding warrant — for weapons, Smith saw passenger Darnell Cleveland walking away with a gold bag. Cleveland complied with an order to drop the bag, which Smith later opened and found a handgun and two baggies of marijuana.

Cleveland admitted the gun was his and said he knew about the marijuana, but claimed he had “nothing to do with” the drugs. He was later charged with one count of carrying a handgun without a license and one count of possession of marijuana, both as Class A misdemeanors.

At his trial, Cleveland objected to the admission of the marijuana and gun, arguing the evidence was obtained from an unconstitutional search. He argued later that the state lacked probable cause to arrest him, but the Marion Superior Court overruled both objections and found him guilty as charged.

Cleveland was sentenced to an aggregate 365 days, all suspended, and was ordered to pay a $50 public defender fee. The trial judge also ordered that his gun be destroyed.

The Indiana Court of Appeals upheld Cleveland’s convictions on Monday, with Judge John Baker writing that the automobile exception to the Fourth Amendment’s prohibition against warrantless searches extended to the gold bag because the bag was inside the vehicle when officers initially believed the vehicle contained contraband.

“The probable cause to stop and search the vehicle and its contents was established from the beginning, and said probable cause did not cease the moment Cleveland exited the vehicle and walked away,” Baker wrote. “If this were the case, passengers — even those as compliant, respectful, and non-violent as Cleveland — would have license to abscond with contraband from police presence to avoid any possibility of arrest for themselves or for those still inside the vehicle.”

The search was also lawful under the Indiana Constitution, Baker said, because the smell of marijuana emanating from the car and the discrepancy in the license plate’s registration created a “strong suspicion” of illegal activity. Further, Cleveland had already been detained as part of the initial stop, and the officers had authority to defuse the “precarious situation” when Cleveland began to walk away.

The appellate court likewise upheld the $50 public defender fee, imposed against Cleveland without an indigency hearing, noting Indiana Code section 35-33-7-6(c) does not require a hearing. Further, though the judge did not make an explicit indigency finding, the panel said the record reveals that “(t)he trial court did its due diligence by inquiring into Cleveland’s financial abilities and making an implicit finding about Cleveland’s indigency status.” But in a footnote, the court said it’s best practice to make explicit indigency findings.

But Cleveland did secure a partial victory when the appellate court found error in the trial court’s order for Cleveland’s gun to be destroyed. Relying on Trice v. State, 114 N.E. 3d 496, 501 (Ind. Ct. App. 2018), Baker said the “misuse of firearms” that allows for guns to be withheld post-conviction, as contemplated in Indiana Code § 35-47-3-2(b), does not include “mere possession.”

Even so, the appellate panel stopped short of ordering the return of Cleveland’s gun, noting he is still not licensed to carry the weapon, “and the trial court does not have the authority to return the firearm directly to Cleveland.”

“As of now, given our lack of statutory guidance, we order that the IMPD must withhold Cleveland’s firearm until a proper solution becomes available,” Baker said. “This is a conundrum that only our General Assembly can resolve.”

The case was remanded.

Judge Cale Bradford dissented in part from the majority opinion, in which Baker was joined by Judge Margret Robb. Bradford’s dissent focused on the issue of the handgun, with the dissenting judge writing that the reasoning of Trice is “unpersuasive.”

Noting Cleveland told law enforcement he was carrying the weapon for protection, Bradford said the defendant was “’using’ the handgun for self-defense by carrying it with him.”

“This use becomes misuse, however, when the person is not legally entitled to carry that handgun,” he said. “I conclude that the authorities were well within their rights to seize and destroy Cleveland’s handgun.”

Bradford further wrote that the decisions in Nicoson v. State, 938 N.E.2d, 660 (Ind. 2010), and Mickens v. State, 742 N.E.2d 927 (Ind. 2001) – which the Trice court relied on – are not applicable here. Thus, he would affirm the trial court in all respects.