Court of Appeals of Indiana | Opinion 19A-CR-1478 | March 18, 2020 Page 1 of 11

ATTORNEY FOR APPELLANT

John F. Crawford

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Andrece Tigner,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 18, 2020

Court of Appeals Case No.

19A-CR-1478

Appeal from the Marion Superior 

Court

The Honorable Steven J. Rubick, 

Magistrate

Trial Court Cause No.

49G20-1901-F2-3574

May, Judge

[1] Andrece Tigner appeals the trial court’s order denying his motion to suppress. 

He raises two issues on appeal, but we find one to be dispositive and restate it

as: whether the search of Tigner incident to his arrest was supported by 

probable cause as required by the Fourth Amendment to the United States 

Constitution. We reverse and remand.
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Facts and Procedural History1

[2] In January 2019, Jill Jones, a Marion County Community Corrections law 

enforcement liaison, received an e-mail indicating that Isiah Williams, an 

individual on home detention, tampered with his monitoring device, tried to 

alter his drug screen, and used illegal narcotics. Jones and Officer Scott Nickels 

of the Indianapolis Metropolitan Police Department (“IMPD”) conducted a 

home visit at Williams’ address. Jones knocked numerous times on Williams’ 

door and heard movement behind the door. Eventually, someone inside the 

residence asked who was at the door, and Jones indicated she was with 

community corrections. Williams opened the door, and Officer Nickels 

smelled the odor of marijuana coming from Williams’ apartment. 

[3] Jones and Officer Nickels both entered the house. Jones could see another 

adult in the apartment’s bedroom. She directed everyone to come into the 

living room. Williams’ brother and Tigner walked out of the bedroom. Tigner 

did not live at the apartment and was visiting Williams at the time of the 

search. Tigner was holding Williams’ young son as he left the apartment’s 

bedroom. Jones went to the kitchen because she had heard movement in that 

area of the house after knocking on the door. Jones opened a cupboard and 

discovered a firearm. 

1 We heard oral argument in this case on January 28, 2020, at Ivy Tech Community College in Columbus. 

We commend counsel for their advocacy and thank Ivy Tech’s faculty, staff, and students for their 

attendance. 
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[4] Officer Tiffany Wren entered the residence after Jones and Officer Nickels. She 

conducted a protective sweep and observed raw marijuana on the dining room 

table. After discovery of the gun and marijuana, officers obtained a search 

warrant for the apartment. In executing the warrant, officers discovered several 

hundred grams of marijuana in a duffel bag in a storage closet located off the 

apartment’s patio. The officers also found pills that were not prescribed to 

Williams, scales, and “roaches.”2

 (Tr. Vol. II at 15.)

[5] Officer Wren was told “two of the three were going.” (Id. at 40.)3 Officer Wren 

interpreted this to mean that Tigner and Williams were to be arrested and put in 

the police wagon. Accordingly, Officer Wren conducted a search incident to 

arrest of Tigner. In Tigner’s pants pockets, she discovered over a thousand 

dollars in United States currency, pills, and two key fobs. Officer Nickels took 

one of the key fobs, went out onto the apartment building landing, and hit the 

lock button on the key fob, which activated the lights and horn of a minivan in 

the parking lot. 

[6] Detective Gary Hadden arrived on the scene with a police dog. The animal 

sniffed the van and alerted, indicating the presence of drugs. Officer Wren 

applied for a search warrant to search the vehicle, and the court granted the 

2 “Roach” is a slang term for “the remains of a smoked marijuana cigarette.” The Online Slang Dictionary. 

http://onlineslangdictionary.com/meaning-definition-of/roach [https://perma.cc/99TZ-UFPJ].

3 Officer Wren testified she did not remember which officer told her Tigner was going in the police wagon. 

Officer Nickels testified he told Officer Wren that Tigner and Williams were being arrested.
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warrant. Officers searched the vehicle and discovered marijuana, synthetic 

marijuana, crack cocaine, heroin, scales, and plastic sandwich bags. 

[7] The State charged Tigner with Level 2 felony dealing in cocaine,4 Level 3 

felony possession of cocaine,5 Level 2 felony dealing in a narcotic drug,6 Level 4 

felony possession of a narcotic drug,7 Level 6 felony dealing in a synthetic drug 

or synthetic drug lookalike substance,8 Class A misdemeanor possession of a 

synthetic drug or synthetic drug lookalike substance,9 Level 6 felony possession 

of marijuana,10 and Level 6 felony possession of a narcotic drug.11 On May 22, 

2019, Tigner filed a motion to suppress. The trial court held a hearing on 

Tigner’s motion and denied the motion. Tigner moved to certify the order for 

interlocutory appeal, and the trial court granted his motion. We accepted 

jurisdiction on July 26, 2019.

Discussion and Decision

4 Ind. Code § 35-48-4-1.

5 Ind. Code § 35-48-4-6.

6 Ind. Code § 35-48-4-1.

7 Ind. Code § 35-48-4-6.

8 Ind. Code § 35-48-4-10.5.

9 Ind. Code § 35-48-4-11.5.

10 Ind. Code § 35-48-4-11.

11 Ind. Code § 35-48-4-6.
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[8] Our standard for reviewing the denial of a motion to suppress is like the 

standard we employ in other sufficiency determinations. Johnson v. State, 21 

N.E.3d 841, 843 (Ind. Ct. App. 2014), trans. denied. 

We determine whether substantial evidence of probative value 

exists to support the court’s denial of the motion. We do not 

reweigh the evidence, and we consider conflicting evidence most 

favorably to the trial court’s ruling. However, unlike other 

sufficiency matters, we must also consider the uncontested 

evidence that is favorable to the defendant.

Id. (internal citations omitted). Nonetheless, when the denial of a motion to 

suppress concerns the constitutionality of a search or seizure, that conclusion is 

a pure question of law that we review de novo. Robinson v. State, 5 N.E.3d 362, 

365 (Ind. 2014).

A. Fourth Amendment to United States Constitution

[9] The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized.

The Amendment protects citizens from search or seizure absent a warrant 

supported by probable cause. Durstock v. State, 113 N.E.3d 1272, 1276-77 (Ind. 

Ct. App. 2018), trans. denied. However, there are several exceptions to the 

warrant requirement. Id. at 1277. The State bears the burden of proving that 
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an exception to the warrant requirement applies for evidence obtained during a 

warrantless search to be admissible at trial. Id. 

[10] “One exception to the warrant requirement is the search incident to arrest, 

which permits ‘a search of the arrestee’s person and the area within his or her 

control.’” Id. at 1278 (quoting Clark v. State, 994 N.E.2d 252, 261 n.10 (Ind. 

2013)). The area within the arrestee’s control signifies the area from which the 

arrestee might gain possession of a weapon or destroy evidence. Stark v. State, 

960 N.E.2d 887, 889 (Ind. Ct. App. 2012), trans. denied. An officer may 

conduct a search incident to arrest if the officer has probable cause to make an 

arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied. 

[11] “Probable cause for an arrest exists if at the time of the arrest the officer has 

knowledge of facts and circumstances that would warrant a person of 

reasonable caution to believe that the suspect has committed the criminal act in 

question.” K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). Probable 

cause exists “when the totality of the circumstances establishes ‘a fair 

probability’—not proof or a prima facie showing—of criminal activity, 

contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 582 (Ind. 

2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (emphasis added). We 

review the determination of probable cause de novo, and an officer’s subjective 

belief regarding whether probable cause existed has no legal effect. K.K., 40 

N.E.3d at 687.
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[12] At the suppression hearing, Officer Nickels testified that at the time Officer 

Wren conducted her search, Tigner was being arrested for visiting a common 

nuisance. A person commits the crime of visiting a common nuisance by 

“knowingly or intentionally” visiting a “building, structure, vehicle, or other 

place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35-

45-1-5. Tigner argues the police did not have probable cause to arrest him for 

visiting a common nuisance at that time because there was no evidence 

Williams’ apartment was a place where “continuous or recurrent prohibited 

activity [took] place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App. 

2018).12 

[13] The State argues evidence of the apartment being a place of repeated drug use 

can be inferred from the facts that the apartment belonged to Williams and that 

community corrections arrived at Williams’ apartment based on information 

that Williams was using drugs. However, the plain language of the common 

nuisance statute requires that the visitor know the apartment was being used for 

the consumption, manufacture, or sale of illegal drugs. A visitor may not know 

the person he is visiting is subject to community corrections or that law 

enforcement suspects the person has recently used drugs.

12 A prior version of the common nuisance statute required that a building be used for a prohibited activity 

only once for it to be considered a common nuisance, but the General Assembly amended the statue in 2016 

out of “a conscious desire on the part of our Legislature that the common nuisance statute not be applied to 

isolated instances of prohibited activity.” Leatherman, 101 N.E.3d at 884 (emphasis in original). 
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[14] Further, the State contends Tigner’s presence as a visitor in Williams’ 

apartment, combined with the evidence discovered during the search of the 

apartment, shows a fair probability 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. 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. See 

Leatherman, 101 N.E.3d at 884 (holding there was insufficient evidence to 

support conviction for maintaining a common nuisance when the State failed to 

prove the defendant’s vehicle was used on more than one occasion for the sale

of an illegal substance).

[15] The State also argues there was probable cause to arrest Tigner for possession of 

marijuana. It is illegal for a person to knowingly or intentionally possess 

marijuana. Ind. Code § 35-48-4-11. In order to commit the offense of 

possession of marijuana, the arrestee must have either actual possession or 

constructive possession of marijuana. Matter of J.L., 599 N.E.2d 208, 212 (Ind. 

Ct. App. 1992), trans. denied. 

[16] Constructive possession requires the individual have both the intent and the 

capability to maintain dominion and control over the illegal substance. Id. A 
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person’s “mere presence where drugs are located or his association with persons 

who possess drugs is not alone sufficient to support a finding of constructive 

possession.” Id. The intent to maintain dominion and control over an illegal 

substance can be inferred from “proof of a possessory interest in the premises 

on which illegal drugs are found” because “the law infers that the party in 

possession of the premises is capable of exercising dominion and control over 

all items on the premises.” Gee v. State, 810 N.E.2d 338, 340-41 (Ind. 2004).

However, the law takes a different view when applying the intent 

prong of constructive possession. When a defendant’s possession 

of the premises on which drugs are found is not exclusive, then 

the inference of intent to maintain dominion and control over the 

drugs ‘must be supported by additional circumstances pointing to 

the defendant’s knowledge of the nature of the controlled 

substances and their presence.’ Lampkins, 682 N.E.2d at 1275. 

The ‘additional circumstances’ have been shown by various 

means: (1) incriminating statements made by the defendant, (2) 

attempted flight or furtive gestures, (3) location of substances like 

drugs in settings that suggest manufacturing, (4) proximity of the 

contraband to the defendant, (5) location of the contraband 

within the defendant’s plain view, and (6) the mingling of the 

contraband with other items owned by the defendant. Henderson 

v. State, 715 N.E.2d 833, 836 (Ind. 1999).

Id. at 341.

[17] Here, Tigner did not have an exclusive possessory interest in the apartment. He 

did not live there. See Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2009) 

(holding visitor to property had no interest in the property searched and 

therefore could not challenge the constitutionality of the search), trans. denied. 

He was visiting Williams’ apartment at the time of the community corrections 
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visit. The State argues Tigner was close enough to the marijuana found in plain 

view that his capability to maintain dominion and control over the contraband 

may be inferred. However, at the time of the search incident to arrest, officers 

knew Tigner was in an apartment where marijuana had been consumed, but 

marijuana was not found in the bedroom where Tigner was located when 

officers entered the apartment. Thus, Tigner did not constructively possess the 

marijuana found in plain view because he was not in proximity to it, there is no 

evidence Williams’ apartment was used for the manufacture of drugs, Tigner 

did not make any incriminating statements, nor were items he owned 

intermingled with contraband. Therefore, officers lacked probable cause to 

arrest Tigner for possession of marijuana at the time Officer Wren conducted 

the search incident to arrest. See Hardister v. State, 849 N.E.2d 563, 574 (Ind. 

2006) (holding visitor did not constructively possess firearms when the visitor 

was arrested in house’s attic and guns were found in the house’s basement and 

living room). Officer Wren’s search of Tigner incident to Tigner’s arrest 

violated Tigner’s Fourth Amendment rights against unlawful search and 

seizure.13

Conclusion

13 Since the key fob 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. See Esquerdo v. State, 640 N.E.2d 

1023, 1030 (Ind. 1994) (holding evidence gathered during illegal warrantless entry into home as well as 

evidence gathered pursuant to later issued search warrant was inadmissible). 
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[18] The search of Tigner incident to arrest was unconstitutional because the officers 

lacked probable cause to arrest Tigner for a crime as required by the Fourth 

Amendment. Therefore, we reverse the trial court’s denial of Tigner’s motion 

to suppress and remand for further proceedings consistent with this opinion.

[19] Reversed and remanded.

Baker, J., and Bailey, J., concur.