Court of Appeals of Indiana | Memorandum Decision 20A-CR-870 | September 24, 2020 Page 1 of 11

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

Ronald J. Moore

The Moore Law Firm, LLC

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James N. Harris, II,

Appellant-Defendant,

v.

State of Indiana, 

Appellee-Plaintiff.

September 24, 2020

Court of Appeals Case No.

20A-CR-870

Interlocutory Appeal from the 

Wayne Superior Court

The Honorable Gregory A. Horn,

Judge

Trial Court Cause No.

89D02-1912-F3-28

Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-870 | September 24, 2020 Page 2 of 11

Case Summary

[1] On December 8, 2019, officers responded to a reported domestic incident. 

When they arrived at the residence in question, the officers encountered James 

Harris, II. Harris consented to the officers’ request to check the residence to 

ensure that no one was in danger inside the residence. During this welfare 

check, officers recovered thirty-eight grams of methamphetamine and a syringe 

from the residence. Harris was subsequently charged with Level 3 felony 

possession of methamphetamine and Level 6 felony unlawful possession of a 

syringe. This interlocutory appeal follows the denial of Harris’s motion to 

suppress the evidence recovered during the search of the residence. We affirm

and remand for further proceedings.

Facts and Procedural History

[2] On December 8, 2019, Richmond Police Officers Paul Hutchison and Quinten 

Schuler were dispatched to 2291⁄2 North 10th Street to investigate a reported 

“domestic with battery.” Tr. Vol. II p. 5. Officer Hutchison was advised that 

Harris was a possible person of interest. When Officers Hutchison and Schuler 

arrived at the residence, they observed that the door was partially open. Harris, 

wearing only his underwear, appeared from an upstairs apartment after Officer 

Hutchison announced himself and Officer Schuler as “Richmond Police.” Tr. 

Vol. II p. 7. Harris consented after Officer Hutchison asked if they could 

“come up and speak with him.” Tr. Vol. II p. 7.
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[3] Officer Hutchison informed Harris of “the nature of the call,” “[t]old him that it 

was a domestic with a battery,” and “[a]sked if anybody else was in the 

apartment.” Tr. Vol. II p. 9. Harris, who, based on Officer Hutchison’s 

training and experience as a police officer, appeared to be under the influence of 

methamphetamine, told Officer Hutchison that “there was no body else there, 

he was not fighting with anyone.” Tr. Vol. II p. 9. Harris consented to Officer 

Hutchison’s request for permission for him and Officer Schuler to “look 

through the apartment for the ... other side of the domestic dispute” and to 

verify that “everybody’s ok.” Tr. Vol. II p. 10. 

[4] Officer Hutchison first looked in a bedroom “where [he] saw [Harris] coming 

from.” Tr. Vol. II p. 11. The bedroom, which was “pretty messy,” contained 

male clothing and a bed. Tr. Vol. II p. 11. As Officer Hutchison walked 

toward a closet, he stepped on a pair of jeans that were on the floor. Officer 

Hutchison felt “a ball of a ... crystal like substance” shift inside a pocket of the 

jeans underneath his foot and heard “crackling noises” as he stepped on the 

jeans. Tr. Vol. II p. 12. Officer Hutchison, again based on his training and 

experience as a police officer, immediately recognized the item he stepped on as 

being consistent with methamphetamine. After verifying that no one was in the 

closet, Officer Hutchison “returned back to the” jeans, picked up the jeans, and 

retrieved the contraband from the right pocket. Tr. Vol. II p. 15. The 

contraband was packaged “in a plastic bag, tied off,” consistent with how 

Officer Hutchison had “come into contact with methamphetamine in the past.” 
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Tr. Vol. II p. 15. Officer Hutchison continued the search, ultimately verifying 

that no one else was present in the apartment.

[5] After Officer Hutchison showed Harris the methamphetamine recovered from 

the jeans, Harris indicated that that “it was not his” and that it belonged to “the 

female that was in the apartment” before the officers arrived. Tr. Vol. II p. 16. 

Harris also indicated that the jeans from which Officer Hutchison recovered the 

methamphetamine “weren’t his.” Tr. Vol. II p. 16. Harris was placed under 

arrest after he got dressed, putting on clothes and shoes that were intermingled 

with the jeans that Officer Hutchison had stepped on. Testing subsequently 

confirmed that the contraband was approximately thirty-eight grams of 

methamphetamine. Officers Hutchison and Schuler also recovered a syringe 

from a pot of water in the kitchen.

[6] On December 9, 2019, the State charged Harris with Level 3 felony possession 

of methamphetamine and Level 6 felony unlawful possession of a syringe. The 

State also alleged that Harris was a habitual offender. Harris filed an amended 

motion to suppress the evidence recovered during the search of the apartment 

on February 18, 2020.1 Following a hearing, the trial court denied the motion 

to suppress, finding that Harris “did not have standing to challenge the 

constitutionality of the search” of the jeans. Appellant’s App. Vol. II p. 60.

1

 The initial motion to suppress was filed on January 29, 2020. 
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Discussion and Decision

[7] Harris contends that the trial court erred in denying his motion to suppress.

We review a trial court’s denial of a motion to suppress in a 

manner similar to review of other sufficiency issues. Taylor v. 

State, 689 N.E.2d 699, 702 (Ind. 1997). There must be 

substantial evidence of probative value in the record to support 

the ruling of the trial court. Id. We do not reweigh the evidence, 

and we consider conflicting evidence most favorably to the trial 

court’s ruling. Id.

Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013). However, “[w]hen the trial 

court’s denial of a defendant’s motion to suppress concerns the constitutionality 

of a search or seizure, ... it presents a question of law, and we address that 

question de novo.” Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014).

[8] During the hearing on his motion to suppress, Harris argued that the 

warrantless search of the jeans went beyond the scope of his consent. For its 

part, the State argued that Harris did not have standing to challenge the 

constitutionality of the search of the jeans. “When the constitutionality of a 

search is challenged, a defendant has the burden of demonstrating a legitimate 

expectation of privacy in the premises searched.” Gregory v. State, 885 N.E.2d 

697, 704 (Ind. Ct. App. 2008), trans. denied. Acknowledging that Harris had the 

burden to prove that he had a legitimate expectation of privacy in the 

apartment, the trial court concluded that “[a]s the burden is upon Defendant to 

prove standing and he has failed to do so, the Court must find that Mr. Harris 

lacks standing to challenge the constitutionality of the search of the black 
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jeans.” Appellant’s App. Vol. II p. 58. Harris challenges the trial court’s 

decision on appeal, arguing that he had standing to challenge the search under 

both the Fourth Amendment to the United States Constitution and Article 1, 

Section 11 of the Indiana Constitution. 

A. Fourth Amendment

[9] Fourth Amendment rights are personal and may not be 

vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133–34, 99 

S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978). A defendant 

“aggrieved by an illegal search and seizure only through the 

introduction of damaging evidence secured by the search of a 

third person’s premises has not had any of his Fourth 

Amendment rights infringed.” Id. at 134, 99 S.Ct. at 425, 58 

L.Ed.2d at 395. “[I]n order to challenge a search as 

unconstitutional, a defendant must have a legitimate expectation 

of privacy in that which is searched.” Livingston v. State, 542 

N.E.2d 192, 194 (Ind. 1989) (citing Rakas v. Illinois). In reviewing 

whether a privacy expectation exists under a Fourth Amendment 

analysis, this Court also looks to whether the defendant has 

control over or ownership in the premises searched. Lee v. State, 

545 N.E.2d 1085, 1091 (Ind. 1989); Livingston, 542 N.E.2d at 

194; Stout v. State, 479 N.E.2d 563, 566 (Ind. 1985). The burden 

is on the defendant challenging the constitutional validity of a 

search to demonstrate that he had a legitimate expectation in the 

premises searched. Livingston, 542 N.E.2d at 194.

Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (brackets in original).

[10] The inquiry into whether an individual has a legitimate expectation of privacy 

in a premises normally embraces two discrete questions. Smith v. Maryland, 442 

U.S. 735, 740 (1979).
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The first is whether the individual, by his conduct, has “exhibited 

an actual (subjective) expectation of privacy,” [Katz v. U.S., 389 

U.S. 347, 361 (1967)]—whether ... the individual has shown that 

“he seeks to preserve [something] as private.” [Id. at 351]. The 

second question is whether the individual’s subjective 

expectation of privacy is “one that society is prepared to 

recognize as ‘reasonable,’” [Id. at 361]—whether ... the 

individual’s expectation, viewed objectively, is “justifiable” under 

the circumstances. [Id. at 353]. 

Id.

[11] In this case, the trial court found that Harris failed to establish that he had a 

legitimate expectation of privacy in the apartment. In the amended motion to 

suppress, Harris referred to the apartment as his “home.” Appellant’s App. 

Vol. II p. 51. However, there was no evidence presented during the suppression 

hearing indicating that Harris lived at the apartment or sought to preserve 

anything as private.2 The trial court noted that Harris’s “appearance in front of 

a police officer wearing nothing but his underwear would certainly lead the 

common man to assume that [Harris] had an expectation of privacy in” the 

apartment. Appellant’s App. Vol. II p. 58. That said, one could just as

reasonably assume that the female who had been involved in the reported 

domestic incident with Harris had the ownership interest in the apartment but 

had fled to safety. 

2

 Harris did not testify during the hearing that he resided in the apartment or present any evidence proving 

that he lived in the apartment.
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[12] To the extent that Harris points to his consent for the officers to enter the 

apartment as proof of his interest in the apartment, we conclude that Harris’s 

act of giving the officers consent to enter the apartment for the limited purpose 

of conducting a welfare check on any other potential occupants, without more, 

is insufficient to prove that Harris controlled or owned the apartment. Given 

the lack of evidence that Harris sought to preserve anything as private or to 

prove control or ownership, we, like the trial court, conclude that Harris did not 

have a reasonable expectation of privacy under these circumstances and 

therefore lacked standing to challenge the constitutionality of the search 

pursuant to the Fourth Amendment. See Peterson, 674 N.E.2d at 533 (“Because 

we find that, as a matter of law, the defendant lacked standing to challenge the

search, we reject his claim that the admission of the shotgun violated his Fourth 

Amendment rights.”).

B. Article 1, Section 11

[13] To establish standing pursuant to Article 1, Section 11, our 

supreme court has stated that “a defendant must establish 

ownership, control, possession, or interest in the premises 

searched or the property seized.” [Peterson, 674 N.E.2d at 534]. 

The court has also stated that a “defendant must show a 

subjective and objective expectation of privacy in the premises.” 

Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (citing [Smith, 

442 U.S. at 740]). 

Allen v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), trans. denied. 
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[14] “[T]he rights protected under the federal and state constitutions are consistently 

described as ‘personal’ rights.” Id. at 1098–99. Just as “[a] person’s Fourth 

Amendment rights against unreasonable search and seizure are personal,” Best 

v. State, 821 N.E.2d 419, 424 (Ind. Ct. App. 2005) (citing Minnesota v. Carter, 

525 U.S. 83, 88 (1998)), the Indiana Supreme Court has observed that Indiana 

jurisprudence similarly establishes that the “‘right to be secure in their persons, 

houses, papers and effects, against unreasonable search and seizure [under 

Section 11] is a personal right of the individual whose person, house, papers or 

effects are searched or seized.’” Peterson, 674 N.E.2d at 533–34 (quoting 

Snedegar v. State, 196 Ind. 254, 257, 146 N.E. 849, 849–50 (1925)). 

Indiana law has also imposed a requirement of standing to 

challenge a search or seizure—a defendant cannot successfully 

object to a search of the premises of another if such search does 

not unlawfully invade his own privacy. Tongut v. State, 197 Ind. 

539, 544, 151 N.E. 427, 429 (1926). If the facts fail to establish 

that the alleged illegal search and seizure actually concerned the 

person, house, papers or effects of the defendant, he will not have 

standing to challenge the illegality. Earle v. State, 194 Ind. 165, 

168, 142 N.E. 405, 406 (1924).

Id. at 534. 

[15] Again, while Harris referred to the apartment as his home in the amended 

motion to suppress, Harris failed to present any evidence during the suppression 

hearing to prove that he had control or ownership of the apartment. Thus, as 

we concluded above, Harris failed to prove that he had a reasonable expectation 

of privacy in the apartment.
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[16] Harris also failed to prove that he had a reasonable expectation of privacy in the 

jeans. Officer Hutchison’s testimony established that Harris was wearing only 

his underwear when he and Officer Schuler first encountered Harris. When 

Harris was placed under arrest and subsequently got dressed, he put on clothes 

that were intermingled with the jeans in which the methamphetamine was 

found. However, Harris specifically stated that the jeans in which the 

methamphetamine was found “weren’t his.” Tr. Vol. II p. 16. Harris also 

disavowed ownership of the methamphetamine seized by Officer Hutchison, 

claiming that it belonged to the female who had been present in the apartment 

prior to the officers’ arrival. By disavowing ownership of the jeans, Harris

extinguished any objective expectation of privacy that he might have had in the 

jeans. Given that Harris lacked an objective expectation of privacy in both the 

apartment and the item searched, we conclude that the trial court did not err in 

finding that Harris lacked standing to challenge the constitutionality of the 

search pursuant to Article 1, Section 11 of the Indiana Constitution.

[17] Because we conclude that Harris failed to meet his burden of proving that he 

had a legitimate interest in the apartment, we affirm the trial court’s 

determination that Harris lacked standing to challenge the constitutionality of 

the search of the apartment. Furthermore, while arguments were made before 

the trial court as to whether the warrantless search of the jeans exceeded the 

scope of the welfare check or was justified by an exception to the general rule 

requiring that police secure a warrant prior to conducting a search, the trial 

court only ruled on the standing issue and did not issue a ruling on whether the 
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warrantless search of the jeans was otherwise justified. As such, any question 

as to whether the warrantless search of the jeans fell under an exception to the 

general rule requiring a warrant is not before the court in the instant appeal and 

is a question for another day.

[18] The judgment of the trial court is affirmed, and the matter is remanded for 

further proceedings.

Najam, J., and Mathias, J., concur.