COA: Motion to suppress should be granted because officers lacked probable cause

A visitor who was present during a home detention check that resulted in the discovery of illegal drugs and ended with him in handcuffs secured a reversal from the Indiana Court of Appeals on Wednesday. The court found officers lacked probable cause to search the man and reversed his denied motion to suppress.

Andrece Tigner was visiting a man on home detention in January 2019 when police officers came to conduct a home visit and discovered a firearm and marijuana in the residence. Once a third officer arrived and conducted a protective sweep, a search warrant was granted and officers found several hundred grams of marijuana in a duffel bag, pills and scales.

When police officer Tiffany Wren was told two of the three men in the apartment were going to be arrested, she conducted a search incident to arrest of Tigner and found more than $1,000, pills and two key fobs in his pocket. One of the key fobs led officers to a van outside, where a K9 alerted to the presence of drugs. A search of the van revealed marijuana, synthetic marijuana, crack cocaine, heroin, scales and plastic sandwich bags.

As a result, Tigner was charged with Level 2 felony dealing in cocaine; Level 3 felony possession of cocaine; Level 2 felony dealing in a narcotic drug; Level 4 felony possession of a narcotic drug; Level 6 felony dealing in a synthetic drug or synthetic drug lookalike substance; Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; Level 6 felony possession of marijuana; and Level 6 felony possession of a narcotic drug.

The Marion Superior Court denied Tigner’s subsequent motion to suppress, but he successfully moved to certify for interlocutory appeal in Andrece Tigner v. State of Indiana, 19A-CR-1478.

In considering as dispositive whether the search of Tigner incident to his arrest was supported by probable cause as required by the Fourth Amendment, the Indiana Court of Appeals reversed in Tigner’s favor, finding the search to be unconstitutional because the officers lacked probable cause to arrest him.

The appellate court first rejected the state’s assertion that Tigner’s presence as a visitor of the apartment, combined with evidence discovered during the search of the residence, showed a fair probability that Tigner knew the apartment was regularly used for the consumption or sale of illegal drugs.

“However, the duffel bag containing hundreds of grams of marijuana was found inside a closet that a visitor would not be able to readily observe,” Judge Melissa May wrote for the appellate court. “The smell of burnt marijuana and a small amount of marijuana in plain view would denote to a visitor an isolated instance of drug use, but it does not show the apartment was being used on a continuous basis for the distribution or consumption of marijuana. Thus, the officers lacked probable cause to arrest Tigner for visiting a common nuisance at the time Officer Wren conducted her search incident to arrest.”

The COA further found Tigner did not constructively possess the marijuana found in plain view because he was not in proximity to it, there was no evidence the apartment was used for the manufacture of drugs, Tigner did not make any incriminating statements, and items he owned were not intermingled with contraband.

“Officer Wren’s search of Tigner incident to Tigner’s arrest violated Tigner’s Fourth Amendment rights against unlawful search and seizure,” the appellate panel concluded.

In a footnote, the appellate court also found that because the key fob in Tigner’s pocket was found in the search incident to an illegal arrest, “the drugs found as a result of the key fob being used should also be suppressed as fruit of the poisonous tree.”

The case was remanded for further proceedings.