Court of Appeals of Indiana | Memorandum Decision 71A05-1603-CR-513 | November 17, 2016 Page 1 of 10

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

Mark S. Lenyo

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Johnnie Nettles,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 17, 2016

Court of Appeals Case No.

71A05-1603-CR-513

Appeal from the St. Joseph 

Superior Court

The Honorable Jerome Frese, 

Judge

Trial Court Cause Nos.

71D03-1412-MR-12

71D03-1207-FB-99

Bailey, Judge.
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Case Summary

[1] Johnnie Nettles (“Nettles”) appeals his convictions for Murder, a felony,1 and 

Robbery, as a Level 5 felony.2 He presents the sole issue of whether the trial 

court abused its discretion in admitting physical evidence. We affirm.

Facts and Procedural History

[2] On December 21, 2014, the owners of Chuck’s Tavern in South Bend, Indiana 

entered the premises and found their employee, twenty-five-year-old Angela 

Garza (“Garza”), murdered. She had suffered eighteen stab wounds and blunt 

force trauma. Approximately $1,500.00 was missing from the cash register and 

two safes. Garza’s vehicle was also missing.

[3] Nettles soon came under suspicion, as he had been in contact with Garza 

during the prior evening and had arranged to meet her when she closed the bar. 

During the afternoon of December 21, Corporal David Ruiz of the Mishawaka 

Police Department (“Corporal Ruiz”) received a dispatch indicating that 

Nettles could be located at an apartment complex at 4500 Hickory Road in St. 

Joseph County. By that time, Corporal Ruiz had located Garza’s missing 

vehicle near 4508 Hickory Road.

 

1

Ind. Code § 35-42-1-1.

2

I.C. § 35-42-5-1. This appeal is consolidated with an appeal from a probation revocation order in 71D03-

1207-FB-000099. However, Nettles presents no separate argument with regard to the probation revocation 

order.
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[4] Corporal Ruiz and several other officers approached the first apartment unit of 

4500 Hickory Road. Before the officers “had the chance to knock,” a door 

opened and Nettles exited the apartment to approach a mailbox. (Tr. at 28.) 

The officers restrained Nettles and requested identification from him. Nettles 

stated that his identification card could be found inside a black coat hanging in 

a closet in the front room. He asked to be allowed to wear that coat and also 

requested his shoes.

[5] Nettles was taken to the police station, where he gave a statement indicating 

that Garza’s keys and cellphone, as well as a knife, could be found in his 

apartment. Meanwhile, Lieutenant Anthony Bontrager (“Lieutenant 

Bontrager”) interviewed Nettle’s girlfriend, Diamond Marshall (“Marshall”), 

and determined that she had leased the apartment solely in her name. Marshall 

executed a form giving permission to search the apartment. A search yielded 

blood-stained currency, Garza’s cell phone and keys, a food benefits card that 

had belonged to Garza’s sister, and a broken knife later found to contain DNA 

consistent with Garza’s DNA profile.

[6] Nettles was charged with Murder and Robbery. Prior to trial, he filed a motion 

to suppress. Nettles sought exclusion of the knife, keys, card, cell phone, and 

currency. After a hearing, the motion to suppress was denied. Nettles was tried 
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by a jury and convicted as charged. He received consecutive sentences of sixtyfive years for Murder and six years for Robbery.3

 This appeal ensued.

Discussion and Decision

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

However, “[d]irect review of the denial of a motion to suppress is only proper 

when the defendant files an interlocutory appeal.” Clark v. State, 994 N.E.2d 

252, 29 (Ind. 2013). We thus frame the issue as whether the trial court abused 

its discretion in admitting evidence. A trial court has broad discretion to rule 

on the admissibility of evidence, and we 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. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). 

However, when an appellant argues that the trial court admitted evidence that 

was obtained in an unconstitutional search or seizure, he or she raises a 

question of law that we review de novo. Id. at 40-41.

[8] Nettles first alleges that the warrantless search was conducted in violation of the 

Fourth Amendment to the United States Constitution. “The Fourth 

Amendment protects persons from unreasonable search and seizure and this 

protection has been extended to the states through the Fourteenth 

 

3 Nettles was on probation after having pled guilty to Burglary as a Class B felony in 2012. On February 22, 

2016, his probation was revoked. As a sanction, Nettles was ordered to serve the six-year sentence that had 

been suspended.
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Amendment.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Warrantless 

searches and seizures conducted inside a home are presumptively unreasonable. 

Id. The State has the burden of proving that an exception to the warrant 

requirement existed at the time of the warrantless residential search. Id. One 

well-recognized exception to the warrant requirement is that of a voluntary and 

knowing consent to search. Id.

[9] Nettles acknowledges that a consent search took place, but argues: “Although 

Diamond Marshall signed a consent to search form, the circumstances under 

which it was signed were not voluntary.” Appellant’s Brief at 21.

[10] At the suppression hearing, Lieutenant Bontrager testified that he had obtained 

Marshall’s consent to search the apartment. According to Lieutenant 

Bontrager, he read an electronic version of a Pirtle4form to Marshall. He 

further testified that Marshall was non-confrontational and appeared to 

understand the explanation of her Pirtle rights. Both Marshall and Lieutenant 

Bontrager electronically signed the form. At the conclusion of the suppression 

hearing evidence, the trial court sought to clarify that Nettles “accept[ed] that 

[Marshall] was not coerced.” (Tr. at 145.) Nettles agreed that coercion would 

not be argued.

 

4

In Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), our supreme court held that a person who is asked to 

give consent to search while in police custody is entitled to the presence and advice of counsel prior to 

making the decision whether to give such consent. The right may be waived, but the burden will be upon the 

State to show that such waiver was explicit. Id. at 29, 323 N.E.2d at 640. 
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[11] Thereafter, at trial, Nettles lodged a continuing objection “based upon the 

ruling on the motion to suppress.” (Tr. at 332-33.) Several times, upon the 

admission of testimonial or physical evidence, Nettles reminded the trial court 

of his continuing objection. However, he did not provide any specificity. For 

example, he once objected as follows: “Defendant would object to Exhibits 65 

through 86 for the reason that they are all depicting items of the search of the 

apartment.” (Tr. at 566.) To the extent that Nettles now claims Marshall’s 

consent was involuntary, he did not take this position at the suppression 

hearing or at trial.

5

 Moreover, while he now highlights the facts that he had 

been incapacitated by his arrest and Marshall was a single mother with a sick 

baby, he directs us to no testimony suggesting that any police officer engaged in 

coercive conduct directed toward Marshall. Nettles has not successfully 

challenged the voluntariness of Marshall’s consent. 

[12] Nettles next presents a Fourth Amendment argument related to recovery of the 

blood-stained currency in particular. He argues that, notwithstanding 

Marshall’s consent, she did not have authority to permit a search of his 

clothing. According to Nettles, his expectation of privacy was akin to that of 

the appellant in Krise, whose purse was searched without her consent after her 

roommate gave verbal consent to search the premises. 746 N.E.2d at 960. 

 

5

“If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial 

court must make its decision based upon trial evidence and may consider hearing evidence only if it does not 

conflict with trial evidence.” Guilmette, 14 N.E.2d at 40, n. 1. The trial court also is to consider any hearing 

evidence that is favorable to the defendant and not contradicted by trial evidence. Id.
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[13] In Krise, our Indiana Supreme Court observed that a consent search is more 

restricted than a search based upon probable cause – in that authority to consent 

is required – and in an ultimately fact-sensitive situation, “the scope of a 

consent search is measured by objective reasonableness, the express object to be 

searched, and the suspect’s imposed limitations.” Id. at 966. The Court noted 

that “the type of container is of great importance,” looked at steps Krise had 

taken to protect her privacy,6 and concluded that Krise’s roommate had no 

actual authority to consent to the search of the purse and the State had failed to 

justify the search on the basis of apparent authority. Id. at 969-71. Reversing

the denial of Krise’s motion to suppress, the Court explained its holding as 

follows:

Rather than considering a third-party’s authority to consent to 

the general search of the home as “all encompassing” to the 

search of every container found inside the home, we hold that the 

inspection of closed containers that normally hold highly 

personal items requires the consent of the owner or a third party 

who has authority – actual or apparent – to give consent to the 

search of the container itself.

Id. at 969. Actual authority to consent to a search of a home may not be 

effective consent to a search of a closed object inside the home. Id. at 968. 

Thus, Nettles asks that we consider his coat pocket to be a type of “closed 

 

6 Krise’s roommate, Charles Tungate, testified that he did not have access to Krise’s purse.
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container” as discussed in Krise, and that we find Marshall lacked actual or 

apparent authority to consent to its search. 

[14] Marshall, the sole lessee of the apartment, advised officers that she and Nettles

shared a closet and that Nettles also had a bag of clothing in the living room. 

The closet was a repository for some items Nettles kept there as he came and 

went, “staying most nights” with Marshall. (Tr. at 447.) Unlike the clothing in 

the living room, Nettles did not restrict access to the closeted items by 

depositing them in a bag. Rather, his clothing was commingled with Marshall’s 

clothing. The officers were not required to remove a covering, much less open 

a closure mechanism as is common with purses. Under the circumstances here, 

we are not persuaded that Nettles took steps such that he had an expectation of 

privacy in his coat pocket akin to that of one who deposits highly personal 

items in a closed purse. He has shown no Fourth Amendment violation.

[15] Nettles also argues that the trial court admitted physical evidence obtained in 

violation of Article 1, Section 11 of our Indiana Constitution, providing:

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

papers, and effects, against unreasonable search or seizure, shall 

not be violated; and no warrant shall issue, but upon probable 

cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the person or thing to be 

seized.

When determining whether a search comports with this state constitutional 

provision, “[i]nstead of focusing on the defendant’s reasonable expectation of 

privacy, we focus on the actions of the police officer, concluding that the search 
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is legitimate where it is reasonable given the totality of the circumstances.” 

Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). In the evaluation of 

reasonableness, we consider “1) the degree of concern, suspicion, or knowledge 

that a violation has occurred, 2) the degree of intrusion the method of the 

search or seizure imposes on the citizen’s ordinary activities, and 3) the extent 

of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

[16] Here, police had a very strong suspicion that Nettles had murdered Garza. He 

had contacted her repeatedly the night before to arrange a meeting when she 

closed the bar. That meeting time corresponded to Garza’s last cash register 

transaction and last cell phone communication. Garza’s vehicle had been 

located at the apartment complex where Nettles was known to stay. The 

consent search did not present an additional intrusion into Nettles’ ordinary 

activities, as the search of Marshall’s premises did not take place until after 

Nettles had been arrested and removed from the premises. Finally, the extent 

of law enforcement needs was high, as the search involved the recovery of 

crucial items connecting Nettles to Garza’s murder. The keys, cell phone, and 

food benefits card had been in Garza’s possession; the broken knife and some of 

the currency had DNA consistent with that of Garza. The search was not 

unreasonable under the totality of the circumstances.

Conclusion

[17] We find no abuse of discretion in the admission of evidence.
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[18] Affirmed.

Riley, J., and Barnes, J., concur.