Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1847 | May 24, 2016 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as 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

Stanley L. Campbell

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General

Jesse R. Drum 

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gary A. Williams,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 24, 2016

Court of Appeals Case No.

02A03-1510-CR-1847

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Judge

Trial Court Cause No.

02D05-1505-F4-28

Altice, Judge.

Case Summary
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[1] Following a jury trial, Gary A. Williams was convicted of Level 4 felony 

unlawful possession of a firearm by a serious violent felon, Class A 

misdemeanor possession of a controlled substance, and Class B misdemeanor 

possession of marijuana. He was also adjudicated a habitual offender. The 

convictions were based on evidence discovered after Williams consented to a 

search of his pocket. Williams claims that the search extended beyond the 

scope of his consent and, therefore, the evidence found during and after the 

search should have been excluded from evidence. 

[2] We affirm.

Facts & Procedural History

[3] On the afternoon of April 29, 2015, Fort Wayne Police Officer George Nicklow 

was in a parking lot surveilling the apartment of a known gang member. 

Officer Nicklow was in uniform but driving an unmarked vehicle. He observed 

an SUV drive slowly toward him and pull into the parking spot on the officer’s 

passenger side. Williams, the later-identified driver of the SUV, made eye 

contact with Officer Nicklow and then backed into a parking spot behind 

Officer Nicklow. Williams stayed in his vehicle and watched the officer. After 

about five minutes, Officer Nicklow became concerned and radioed Officer 

Robert Hollo, who was in the area. Shortly thereafter, Williams left the parking 

lot and drove to a nearby gas station.

[4] Officer Hollo watched Williams from a distance. Williams “put the gas nozzle 

in his tank” for only about two minutes and then left, “like he didn’t even pay”. 
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Trial Transcript at 142, 143. Officer Hollo informed Officer Nicklow that 

Williams appeared to be returning to the apartment complex, so Officer 

Nicklow returned to the complex.

[5] Upon arriving, Officer Nicklow observed Williams’s SUV parked in front of a 

different apartment building. Williams was not inside the SUV, but the engine 

was running. Williams came out of the apartment after a couple minutes and 

entered the SUV, backed out, and then parked behind Officer Nicklow in about 

the same area he had before. In light of this suspicious activity, Officer 

Nicklow asked Officer Hollo to return to the area. Officer Hollo quickly 

returned and parked nearby.

[6] As the uniformed officers exited their vehicles to approach the SUV, Williams 

stepped out with a diaper bag on his shoulder. Williams spoke first, saying 

“what’s up[?]” Id. at 147. Officer Hollo responded, “how’s it going[?]” Id. 

Officer Hollo noticed a “big bulge” in Williams’s front right pocket. Id. When 

he asked Williams what was in the pocket, Williams did not respond. Officer 

Hollo then asked if he “could see what was inside his pocket.” Id. at 148. 

Williams said, “go ahead.” Id. Officer Hollo reached into the pocket and 

pulled out a translucent pill bottle, which contained what the officer recognized 

to be marijuana.

[7] Officer Hollo removed the diaper bag from Williams’s shoulder and placed him 

under arrest for possession of marijuana. A subsequent search incident to arrest 

led to the discovery of a larger bag of marijuana, a hydrocodone pill, and 
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several plastic baggies. There was also a loaded gun inside the diaper bag that 

Williams had been carrying, as well as a baby inside the SUV.

[8] On May 5, 2015, the State charged Williams with Level 4 felony unlawful 

possession of a firearm by a serious violent felon, Class A misdemeanor 

possession of a controlled substance, and Class B misdemeanor possession of 

marijuana. The State later filed a habitual offender allegation.

[9] On July 30, 2015, Williams filed a motion to suppress. At the conclusion of the 

hearing on August 20, 2015, the trial court denied Williams’s motion to 

suppress. The court expressly found that a consensual encounter occurred 

between Williams and the officers during which Williams consented to the 

search of his pocket. 

[10] Williams’s two-day jury trial commenced on August 26, 2015. Williams 

renewed his suppression argument at trial with objections to the challenged 

evidence, but the trial court admitted the evidence. The jury found Williams

guilty as charged and found him to be a habitual offender. The trial court 

sentenced him, on September 28, 2015, to an aggregate term of twenty-seven 

years in prison. Williams now appeals on grounds that the search violated the 

Fourth Amendment to the United States Constitution and Article 1, Section 11 

of the Indiana Constitution.

Discussion & Decision
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[11] Williams improperly frames the issue on appeal in terms of whether the trial 

court erred in denying the motion to suppress. The issue, rather, is whether the 

trial court abused its discretion by admitting the challenged evidence at trial. 

See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). On review for abuse of 

discretion, we will reverse “only when admission is clearly against the logic and 

effect of the facts and circumstances and the error affects a party’s substantial 

rights.” Id. at 260.

[12] On appeal, Williams effectively concedes that his encounter with Officers Hollo 

and Nicklow was consensual.

1

 Indeed, he was not in custody or detained in 

any way at the time he gave Officer Hollo permission to search his pocket. 

Williams’s argument is simply that Officer Hollo’s search exceeded the scope of 

the consent given. According to Williams, his consent was limited to a search 

of his pocket to see if it contained a weapon. Once Officer Hollo determined 

that there was no weapon, Williams contends that the officer should have 

ended the search without removing the pill bottle.

[13] Williams’s argument is well off the mark. As our Supreme Court has 

recognized, many search and seizure issues are resolved in the same manner 

under both the Indiana and Federal Constitutions. See State v. Cunningham, 26 

N.E.3d 21, 25 (Ind. 2015). This case falls within that category. See id. Under 

both Constitutions, a search requires a warrant unless certain narrow exceptions 

 

1

“Consensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth 

Amendment analysis.” Id. at 261.
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apply, one of which is a search based on lawful consent. Id. See also Florida v. 

Jimeno, 500 U.S. 248, 250-51 (1991) (“we have long approved consensual 

searches because it is no doubt reasonable for the police to conduct a search 

once they have been permitted to do so”).

[14] A consensual search allows the individual consenting to the search to limit or 

restrict the search as he or she chooses. Cunningham, 26 N.E.3d at 28. The 

scope of the search is generally defined by the expressed object of the search, 

which “limit[s] only ‘where police may look, not what they actually find.’” Id. 

(quoting McIlquham v. State, 10 N.E.3d 506, 513 (Ind. 2014)). See also Jimeno, 

500 U.S. at 251.

[15] In this case, Williams consented to the search of his pocket by Officer Hollo 

and did not articulate any limitation on the scope of that search. Neither 

Williams nor Officer Hollo stated at the time that the search was intended to be

a search for weapons, and we will not infer such an unexpressed limitation. 

Based on the brief, casual exchange between Williams and Officer Hollo, a 

“typical reasonable person” would have understood that Williams’s general 

consent to see what was inside his pocket included consent to remove the pill 

bottle from inside that pocket. Jimeno, 500 U.S. at 251 (“The standard for 

measuring the scope of a suspect’s consent...is that of ‘objective’ reasonableness 

– what would the typical reasonable person have understood by the exchange 

between the officer and the suspect?”). Because the search did not exceed the 

scope of Williams’s consent, the trial court properly admitted the evidence.
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[16] Judgment affirmed.

[17] Bailey, J. and Bradford, J., concur.