Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 1 of 27

ATTORNEYS FOR APPELLANT

Marietto V. Massillamany

Erica Guernsey

Massillamany Jeter & Carson LLP

Fishers, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Megan M. Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Shorter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 6, 2020

Court of Appeals Case No.

19A-CR-2904

Appeal from the Madison Circuit 

Court

The Honorable David A. Happe, 

Judge

Trial Court Cause No.

48C04-1807-F2-1909

Baker, Judge.
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[1] Robert Shorter appeals his convictions for Level 2 Felony Dealing in 

Methamphetamine,1 Level 3 Felony Dealing in a Narcotic Drug,2 Level 3 

Felony Conspiracy to Commit Dealing in a Narcotic Drug,3 and Level 3 Felony 

Aiding, Inducing, or Causing Dealing in Methamphetamine.4 He argues that 

(1) the trial court erred in its decision to admit certain evidence, thereby 

violating both the Fourth Amendment to the United States Constitution and 

Article 1, Section 11 of the Indiana Constitution, and (2) the evidence was 

insufficient to support the conviction. Finding no error and that the evidence 

was sufficient, we affirm. 

Facts

[2] In June 2018, the Anderson Police Department received an anonymous

complaint that Shorter and Lewis Martin had traveled from Detroit to 

Anderson to sell drugs. On July 18, 2018, a confidential informant for the 

Anderson Police Department contacted Shorter to purchase methamphetamine. 

Shorter at first agreed to sell the informant methamphetamine, but later 

informed her that he could only sell her heroin and told her to contact Martin if 

she wanted methamphetamine. Shorter gave the informant Martin’s contact 

information and put her in touch with Martin so she could arrange a purchase 

1

Ind. Code § 35-48-4-1.1(a)(2).

2

I.C. § 35-48-4-1(a)(2).

3

Ind. Code § 35-41-5-2.

4

I.C. § 35-41-2-4.
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of methamphetamine from him. Later that same day, per Martin and the 

informant’s arrangement, the informant met Martin at the predetermined 

location and gave him $200 in exchange for seven grams of methamphetamine. 

[3] The same day, after this first transaction, the informant contacted Shorter again 

requesting to purchase heroin. Shorter agreed to sell seven grams and gave the 

informant a residential address where she would meet him to purchase the 

heroin. The informant went to the address and met up with Shorter; the two 

went into the kitchen, where Shorter removed a package of drugs from a 

cabinet, weighed out the seven grams he had agreed to sell, and then exchanged 

the heroin for money from the informant. Following the exchange, Shorter 

“made [the informant] do the heroin” that was left sitting on the table, and 

though she tried to “wipe[] it off the table without him knowin’,” she did end 

up “gettin’ some in [her] nose.” Tr. Vol. III p. 42-43. As a result, after the buy, 

officers immediately transported the informant to be medically examined. 

[4] On July 23, 2018, Shorter called the informant asking for help “to get him out 

of town.” Id. at 45. He told her he “was scared and paranoid” and that he 

“knew everybody was looking for him because . . . all [his] locations had . . . 

been hit,” and he wanted “someone he could trust” to help him leave town. Id.

Shorter disclosed his location, which the informant then provided to officers. 

When officers arrived at the location, the front door was open and they could 

observe Shorter, who was still wearing the same clothing he wore when he sold 

heroin to the informant, sitting on a couch inside. The officers surveilled and 

observed him for about twenty to thirty minutes before Shorter exited the 
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residence, walked a few feet toward a detached garage while “looking very 

intently at the ground,” and eventually stopped and bent over a few feet away 

from the garage, in a manner “very similar to someone who was bent over . . . 

tying their shoes but you just couldn’t see [his] hands.” Id. at 114-15. Shorter 

then stood up and walked back into the residence. 

[5] Officers on the scene continued observing the residence for another fifteen 

minutes or so until additional uniformed officers arrived; during that time, 

nobody else was observed entering or exiting the residence. Once the additional 

officers arrived, officers approached the residence and instructed Shorter to put 

his hands up, at which point Shorter complied and stood up, and “threw a large 

amount of money up in the air” that had been in his hands. Id. at 10. Officers 

then arrested Shorter without incident.5

[6] Holly Brewer, the primary resident of the home at which officers apprehended 

Shorter, consented to a search of the residence. A K-9 unit conducted a sweep 

of the exterior of the residence and the K-9 alerted at a spot outside the 

detached garage, around the place where officers had observed Shorter bent

over. Officers noticed that a rock or stepping stone where the K-9 alerted 

“wasn’t in the ground like the rest of em’” and turned it over, discovering 

5

It is not entirely clear from the record whether Shorter and the police officers were inside or outside of the 

residence during his arrest, though an officer testified that just prior to the arrest, as the officers approached 

the door, they “had a visual contact [with Shorter] . . . cause the door was wide open.” Tr. Vol. III p. 10. 

Once Shorter saw the officers approaching, he threw up the money that was in his hands and followed 

officers’ orders to be taken into custody. To err on the side of protecting Shorter’s constitutional rights, we

will assume that the arrest took place inside the home.
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underneath it a sock containing a bag of methamphetamine and a bag of a 

mixture of heroin and diphenhydramine. Id. at 88. A search inside the residence 

produced a digital scale with white residue on it and baggies on the table where 

Shorter had been sitting. 

[7] Officers had been unable to obtain a warrant for Shorter’s arrest after the 

controlled heroin buy because they had no personal identifiers for Shorter

necessary for obtaining a warrant.

6 Officers nonetheless believed they had 

probable cause to arrest Shorter based on the controlled buy. In an interview 

with officers, Shorter provided a false name and identification and made several 

incriminating statements. See id. at 216-28. After being told that the 

interviewing detective was working narcotics, Shorter admitted that he knew 

Martin, knew where Martin was located, and that Martin “brought [him] down 

here” and “made [him] work.” Id. at 217. The detective told Shorter he would 

be charged with dealing heroin and that officers had purchased heroin from 

him, to which Shorter merely responded “[s]h*t.” Id. at 222. Shorter never 

denied selling the drugs, and instead told the detective that he “didn’t deal[] to 

you man” and “you don’t look like nobody I sellin’ that to.” Id. at 222, 228.

[8] On July 25, 2018, the State charged Shorter with one count of Level 2 felony 

dealing in methamphetamine, two counts of Level 3 felony dealing in a narcotic 

drug, and one count of Level 6 felony identity deception. On October 20, 2018, 

6 At that point, officers had known Shorter only by various street names, not his legal name. 
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the State filed an amended charging information alleging that Shorter was an 

habitual offender. On January 29, 2019, the State filed a motion to amend the

charging information, which the trial court granted, that amended one count of 

dealing in a narcotic drug to Level 3 felony conspiracy to commit dealing in a 

narcotic drug and added a charge of Level 3 felony aiding, inducing, or causing 

dealing in methamphetamine. On September 16, 2019, the State moved to

dismiss the identity deception charge, which the trial court granted. 

[9] A jury trial was held September 16 and 18, 2019. Shorter filed a motion to 

suppress certain statements and evidence surrounding his arrest, and the trial 

court denied the motion. At the conclusion of the trial, outside the presence of 

the jury, the State chose to not proceed with the habitual offender 

enhancement. The jury found Shorter guilty of all other remaining charges: 

Level 2 felony dealing in methamphetamine, Level 3 dealing in a narcotic drug, 

Level 3 felony conspiracy to commit dealing in a narcotic drug, and Level 3 

felony aiding, inducing, or causing dealing in methamphetamine. On 

November 12, 2019, the trial court sentenced Shorter to twenty-three years for 

dealing in methamphetamine and ten years each for the three Level 3 felony 

convictions, all to run concurrently, for an aggregate sentence of twenty-three 

years in the Department of Correction. Shorter now appeals. 
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Discussion and Decision

I. Admission of Evidence

[10] Shorter’s first argument on appeal is that the trial court erred when it denied his 

motion to suppress and admitted evidence obtained as a result of his 

warrantless arrest and the warrantless search of Brewer’s home, thereby 

violating both the Fourth Amendment to the U.S. Constitution and Article 1, 

Section 11 of the Indiana Constitution.

[11] Because Shorter is appealing the denial of the motion to suppress after a 

completed trial, the appeal is best framed as one challenging the trial court’s 

admission of evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). 

Admission or exclusion of evidence is within the trial court’s sound discretion 

and is given great deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 

2015). We will reverse a trial court’s ruling on the admissibility of evidence only 

if the decision is clearly against the logic and effect of the facts and 

circumstances or if the trial court has misinterpreted the law. Id. When a 

challenge to a trial court’s ruling on the admissibility of evidence turns on an 

alleged constitutional violation, as it does here, the issue raises a question of 

law and our review is de novo. E.g., Pinner v. State, 74 N.E.3d 226, 229 (Ind. 

2017).

A. Fourth Amendment

[12] With regards to the Fourth Amendment, Shorter argues that the warrantless 

arrest and search of the home were unconstitutional and that certain evidence 
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obtained from the arrest and search should have been suppressed. More 

specifically, Shorter contends that law enforcement violated Shorter’s 

reasonable expectation of privacy guaranteed by the Fourth Amendment “when 

they entered [Shorter’s] temporary home, absent exigent circumstances, and 

without a warrant to search and seize him.” Appellant’s Br. p. 12. As a result, 

he claims, “statements Shorter made at the police station following his arrest 

and the drugs found in Brewer’s yard under a rock” were improperly admitted 

as evidence by the trial court. Appellant’s Reply Br. p. 5.7

[13] The Fourth Amendment to the U.S. Constitution provides, in relevant part, 

that “[t]he 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 

warrant 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.” While in most cases, probable cause to believe the person being 

arrested committed a felony is sufficient to support a warrantless arrest, 

“[p]robable cause alone is insufficient to justify a warrantless arrest of a person 

in his home.” Snellgrove v. State, 569 N.E.2d 337, 340 (Ind. 1991). Instead, there 

must also be exigent circumstances present, which are traditionally found where 

7 As an initial matter, the warrantless search of Brewer’s home was constitutional because Brewer, the owner, 

consented to the search. Before obtaining her consent for the search, officers reviewed her rights under 

Miranda v. Arizona, 384 U.S. 436 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). Importantly, 

it was this search, not Shorter’s warrantless arrest or a search conducted incident to that arrest, that resulted 

in the discovery of the methamphetamine and heroin. Therefore, regardless of the circumstances surrounding 

Shorter’s warrantless arrest, the warrantless search of the home was supported by valid consent, meaning that 

the drugs discovered during that search were properly seized by officers and properly admitted as evidence.
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“1) a suspect is fleeing or likely to take flight in order to avoid arrest; 2) 

incriminating evidence is in jeopardy of being destroyed or removed unless an 

immediate arrest is made; and 3) in cases that involve hot pursuit or movable 

vehicles.” Id.

[14] With regards to the warrantless arrest, ample exigent circumstances justifying 

the arrest were present. Shorter had contacted the confidential informant 

seeking help “to get him out of town” and told the informant that “he knew 

everybody was looking for him.” Tr. Vol. III p. 45. Furthermore, officers knew 

that Shorter had come from Michigan to sell drugs and had few ties to the local 

community. See, e.g., Myers v. State, 454 N.E.2d 861, 864 (Ind. 1983) (finding 

exigent circumstances existed and that defendant was likely to flee the state 

before an arrest warrant could be issued where defendant’s truck had an out-ofstate plate, he provided an out-of-state address at his hotel, he had “little or no 

ties in Indiana,” and he had committed other criminal offenses in other states). 

[15] Additionally, officers had audio recordings of Shorter arranging drug purchases 

with the informant and video footage of him selling heroin to the informant, 

and they were able to identify him on the day of his arrest based on this 

information. Officers were unable to procure an arrest warrant only because 

they did not know the required personal identifying information (i.e., his real 

name, as opposed to various street names). Where “exigent circumstances 

[make] the procuring of a warrant impracticable” and probable cause otherwise 

exists, a warrantless arrest is reasonable. Banks v. State, 265 Ind. 71, 77-78, 351 

N.E.2d 4, 9 (1976) (finding warrantless arrest was lawful where “[p]olice . . . 
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had information from two informants, one of whom was an eyewitness, [upon] 

which their arrest . . . was based”).8

[16] Lastly, we also note that the door to the home was “wide open with no screen”

9

and Shorter was sitting on a couch located directly in front of the open door,

such that Shorter was plainly visible and identifiable from lawful vantage 

points, including from a vehicle as officers first drove by the house. Tr. Vol. III 

p. 142, 224. These circumstances certainly reduced the reasonable expectation 

of privacy Shorter had inside the home in the first place. See, e.g., Shane v. State, 

615 N.E.2d 425, 428 (Ind. 1993) (holding that defendant had no reasonable 

expectation of privacy in a basement area where door to the basement was off 

its hinge and was accessible via a common stairwell); Sayre v. State, 471 N.E.2d 

708, 713 (Ind. Ct. App. 1984) (“[D]efendants did not display a reasonable 

expectation of privacy by leaving open the curtains on the front window, which 

is only a few feet from the front door.”); see also Cox, 696 N.E.2d at 857 (“[I]f 

8

Shorter compares the facts surrounding his case to those in Kirk v. Louisiana, 536 U.S. 635 (2002), to support 

his argument that despite the presence of probable cause, there are no exigent circumstances present that 

could have justified his warrantless arrest and the admission of any evidence obtained thereafter. In Kirk, the 

police had probable cause that a drug deal had taken place in the defendant’s apartment and arrested the 

defendant there without a warrant. The United States Supreme Court reversed the appellate court’s judgment 

that the warrantless arrest was proper because there was no finding below of exigent circumstances in 

addition to probable cause. But Kirk makes no finding on whether exigent circumstances actually existed in 

that case; in fact, the opinion clearly states that it “express[es] no opinion on that question,” and instead 

holds merely that the lower court erred by holding that exigent circumstances were not required to justify a 

warrantless arrest of an apartment home. Id. at 638.

9 The presence of a closed screen door, despite an otherwise open doorway, has been noted as a key 

distinction in whether warrantless entry of a home in “threshold arrests” is constitutional. See, e.g., Cox v. 

State, 696 N.E.2d 853, 857 (Ind. 1998) (finding that “where an intervening screen or storm door remains 

closed” when a suspect is in the threshold of the home, the integrity of the physical boundaries of the home 

are nonetheless preserved, along with the ability to exclude others).
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police spot the suspect and identify themselves when the suspect is in view, they 

may pursue her into the home to complete the arrest.”); Boggs v. State, 928 

N.E.2d 855, 863 (Ind. Ct. App. 2010) (“A man’s home is, for most purposes, a 

place where he expects privacy, but objects, activities, or statements that he 

exposes to the plain view of outsiders are not protected because no intention to 

keep them to himself has been exhibited.”).

[17] In sum, we find that the warrantless arrest of Shorter was supported by probable 

cause and exigent circumstances, and that the warrantless search that produced 

the heroin and methamphetamine introduced as evidence was lawful. Given the 

particular facts of this case, it would have been advisable and best practice for 

officers to at least attempt to obtain an electronic warrant prior to the arrest, but 

because there were sufficient exigent circumstances consistent with those found

in cases like Myers and Banks, a warrant was not required. As such, no Fourth 

Amendment violation occurred, and the trial court properly admitted any

evidence obtained as a result of the arrest or the search of the home.10

10 Shorter makes an additional argument that the challenged evidence admitted at trial—Shorter’s statements 

to police and the drugs found at Brewer’s residence—were not sufficiently attenuated from the alleged police 

misconduct (i.e., the warrantless search and seizure) and therefore were required to be suppressed. See, e.g., 

Joseph v. State, 975 N.E.2d 420, 426-30 (finding, under the attenuation doctrine, that defendant’s statements 

to officers after an unconstitutional search of his apartment were not sufficiently attenuated to be admissible 

at trial). But for the attenuation doctrine to apply, there must first be some illegal police conduct. See id. at 

426 Because we find that no police misconduct occurred and that the warrantless search and seizure was 

constitutional, we decline to address the attenuation argument in more depth. 
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B. Article 1, Section 11

[18] Next, we must consider whether the warrantless arrest violated the Indiana 

Constitution.11 Under Article 1, Section 11 of the Indiana Constitution, the 

legality of a seizure “turns on an evaluation of the reasonableness of the police 

conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 

356, 359 (Ind. 2005). Whether a seizure is reasonable focuses on the actions of 

the officer, rather than on the defendant’s reasonable expectation of privacy, 

and “turn[s] on a balance of: 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.” Id.

[19] First, we recognize the particularly high degree of intrusion here: “Indeed, there 

are few intrusions more severe than an arrest.” Govan v. State, 116 N.E.3d 1165, 

1175 (Ind. Ct. App. 2019), trans. denied. But because we find that both the 

degree of suspicion and extent of law enforcement needs were also particularly 

high, we nonetheless conclude that the balance of Litchfield factors shows that 

the warrantless arrest of Shorter was reasonable under the Indiana Constitution. 

[20] Regarding the degree of concern, suspicion, or knowledge of a violation, we 

look at “the reasonableness of the officers’ assumptions, suspicions, or beliefs 

11 As under the United States Constitution, a homeowner’s consent to the search of her property renders the 

search constitutional. E.g., Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). Therefore, we need not consider 

Shorter’s arguments related to the search of the residence.
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based on the information available to them at the time.” Duran v. State, 930 

N.E.2d 10, 18 (Ind. 2010). Shorter admits that “[h]ere, the degree of concern 

and knowledge that a violation had occurred was high.” Appellant’s Br. p. 9-10. 

Officers had successfully conducted two controlled buys from Shorter and 

Martin, corroborating the original anonymous tip that the two were in town 

from Michigan to sell drugs, and had audio and video recordings of Shorter of 

his interactions with a reliable confidential informant. See Herron v. State, 991 

N.E.2d 165, 171 (Ind. Ct. App. 2013) (finding warrantless search and seizure 

was reasonable under the Indiana Constitution where officers and a 

confidential informant conducted two controlled drug purchases that 

corroborated an anonymous tip and officers saw “what appeared to be the buy 

money” in plain view in defendant’s car). 

[21] Lastly, the extent of law enforcement needs was high here given Shorter’s 

indication that he intended to flee. Shorter’s statements to the informant about 

needing to get out of town, combined with officers’ knowledge that Shorter was 

from Michigan and dealing large quantities of drugs, indicated that there was a 

high need to secure Shorter as soon as possible before he left the area. Shorter 

attempts to draw parallels between the facts of his case and those in State v. 

Foster, 950 N.E.2d 760 (Ind. Ct. App. 2011), where we held that a warrantless 

arrest was unreasonable in violation of Article 1, Section 11 in part because of 

the lack of law enforcement needs. In Foster, however, officers did not arrest the 

defendant until twenty-one days after the controlled drug buy, during which 

time the defendant stayed living in his own apartment. Here, only five days had 
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passed between the last controlled buy and the date of Shorter’s arrest, he was 

not staying in his own permanent home, and officers had received information 

via the confidential informant that Shorter had expressed interest in leaving the 

state soon. Unlike in Foster, where “[t]here was ample time and opportunity for 

the officers to obtain an arrest warrant,” the officers here needed to act quickly 

and had a high need for conducting the warrantless arrest in light of the facts 

and circumstances. Id. at 762. 

[22] As such, we find that a balance of the three Litchfield factors support a 

conclusion that the warrantless arrest of Shorter was reasonable under Article 1, 

Section 11 of the Indiana Constitution, and that the trial court did not err in 

admitting evidence of Shorter’s statements to officers following his arrest. 

II. Sufficiency of the Evidence

[23] Shorter next argues that, regardless of the admissibility of the challenged 

evidence, the evidence was insufficient to support his convictions. In reviewing 

the sufficiency of the evidence to support a conviction, we must consider only 

the probative evidence and the reasonable inferences supporting the verdict, and 

we will neither assess witness credibility nor reweigh the evidence. Drane v. 

State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable 

factfinder could find the elements of the crime proved beyond a reasonable 

doubt. Id.
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Dealing Convictions

[24] To convict Shorter of dealing in methamphetamine, the State was required to 

prove that on July 23, 2018, Shorter possessed pure or adulterated 

methamphetamine with the intent to deliver it or to finance the delivery of it. 

I.C. § 35-48-4-1.1(a)(2). Similarly, to convict him of dealing in a narcotic drug, 

the State was required to prove that on July 23, 2018, Shorter possessed pure or 

adulterated heroin with the intent to deliver it or to finance the delivery of it. 

I.C. § 35-48-4-1(a)(2).

[25] Shorter argues that the State failed to provide sufficient evidence that he had 

constructive possession over the methamphetamine and heroin found 

underneath the rock outside Brewer’s home and garage. Possession can be 

either actual or constructive. Actual possession occurs when a person has direct 

physical control over the contraband in question. Gray v. State, 957 N.E.2d 171, 

174 (Ind. 2011). When actual possession cannot be shown, such as in Shorter’s 

case, then the conviction may instead rest on proof of constructive possession. 

Id. “A person constructively possesses contraband when the person has (1) the 

capability to maintain dominion and control over the item; and (2) the intent to 

maintain dominion and control over it.” Id.

[26] With regards to the “capability” element of constructive possession, the State 

must show “that the defendant is able to reduce the controlled substance to the 

defendant’s personal possession.” Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). 

For the intent element, the State must demonstrate that the defendant had 

knowledge of the presence of the substance, and such knowledge “‘may be 
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inferred from either the exclusive dominion and control over the premise 

containing the contraband or, if the control is non-exclusive, evidence of 

additional circumstances pointing to the defendant’s knowledge of the presence 

of the contraband.’” Id. (quoting Taylor v. State, 482 N.E.2d 259, 261 (Ind. 

1985)). A non-exhaustive list of examples of possible “additional 

circumstances” showing knowledge may include:

(1) a defendant’s incriminating statements; (2) a defendant’s 

attempting to leave or making furtive gestures; (3) the location of 

contraband like drugs in settings suggesting manufacturing; (4) 

the item’s proximity to the defendant; (5) the location of 

contraband within the defendant’s plain view; and (6) the 

mingling of contraband with other items the defendant owns.

Gray, 957 N.E.2d at 175; see also Gee v. State, 810 N.E.2d 338, 344 (Ind. 2004)

(“[T]he State is required to show that whatever factor or set of factors it relies 

upon in support of the intent prong of constructive possession . . . demonstrate 

the probability that the defendant was aware of the presence of the contraband 

and its illegal character.”). 

[27] Here, evidence shows that on July 23, 2018, Shorter was observed exiting 

Brewer’s home, walking over to the spot where the methamphetamine and 

heroin were later found, standing bent over with his hands reaching near the 

ground and “looking very intently at the ground,” tr. vol. III p. 115, and 

walking back inside the home. During the period officers were surveilling the 

home that day, no other person was observed near the spot where the drugs 

were discovered. Additionally, the heroin that was found was cut with the same 
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cutting agent as the heroin the confidential informant purchased from Shorter a 

few days prior. This evidence sufficiently shows that Shorter had the capability 

of maintaining dominion and control over the drugs and that he was able to 

reduce them to his own personal possession.

[28] Sufficient evidence also demonstrated Shorter’s intent to maintain dominion 

and control over the drugs. After officers received an anonymous tip that 

Shorter was in town to sell drugs, recordings were obtained via the confidential 

informant of Shorter arranging a methamphetamine purchase and personally 

selling heroin. Shorter had expressed a desire to “get . . . out of town” and 

stated it was “because . . . all [his] locations had . . . been hit.” Id. at 45; see also 

Lampkins v. State, 682 N.E.2d 698, 700 (Ind. 1997) (stating that flight is an 

additional circumstance that may support an inference of intent to maintain 

dominion and control over a controlled substance). During the search of 

Brewer’s home, officers also discovered a digital scale with white residue and 

several baggies sitting on the table where Shorter had been sitting when he was 

arrested. Once arrested, Shorter also made incriminating statements, telling 

officers, “you don’t look like nobody I sellin’ that to.” Id. at 228.

[29] We also agree with the State that the facts of this case are comparable to those 

in Canfield v. State, 128 N.E.3d 563 (Ind. Ct. App. 2019). In Canfield, officers 

were dispatched to a Taco Bell after an anonymous caller reported a man, 

Canfield, in a Taco Bell uniform standing by a dumpster outside the restaurant

who appeared to pull something from his waistband and that the item may have 

been an illegal substance. Once at the restaurant, officers observed Canfield 
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stand to the side of the food preparation area and “dig[] around his waistband 

area,” and then squat down and stand back up “like he picked up something or 

had moved something.” Id. at 573. An officer then went to the spot where 

Canfield had just been observed and discovered a bag containing multiple 

smaller bags with a white crystal powdery substance, which later tested positive 

for methamphetamine. We ultimately found this evidence sufficient to 

demonstrate constructive possession over the methamphetamine. And given the 

similarity to the evidence in Shorter’s case—an anonymous tip about Shorter’s 

drug dealing, the officers’ observations of Shorter bending over the spot where 

the drugs were found and moving his hands around, plus evidence from the 

controlled buys and of Shorter’s intent to flee—we find no reason to conclude 

differently here.

Conspiracy and Aiding, Inducing, or Causing Convictions

[30] Shorter also argues that his other two convictions centering on the controlled 

buys that took place on July 18, 2018—conspiracy to commit dealing in a 

narcotic drug and aiding, inducing, or causing dealing in methamphetamine—

are supported by insufficient evidence.

[31] To convict Shorter of conspiracy to commit dealing in a narcotic drug, the State 

was required to show that Shorter, with the intent to commit dealing in a 

narcotic drug, agreed with Martin to commit that felony. I.C. § 35-41-5-2(a). 

For aiding, inducing, or causing dealing in methamphetamine, the State was 

required to show that Shorter “knowingly or intentionally” aided, induced, or 

caused Martin to commit dealing in methamphetamine, even if Martin himself 
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was never prosecuted for or convicted of dealing in methamphetamine. I.C. § 

35-41-2-4. 

[32] Shorter claims that the State failed to present any evidence that Shorter had any 

possession of methamphetamines on July 18. Shorter also argues that the video 

and audio evidence shows the confidential informant buying the 

methamphetamine from another individual, but that “[t]here was no evidence 

that [Shorter] was present during the drug buy.” Appellant’s Br. p. 17. 

[33] But neither of these arguments are relevant to determining whether the evidence 

supports the convictions for conspiracy to commit dealing and aiding, inducing, 

or causing dealing. The evidence shows that Shorter initially agreed to sell the 

informant methamphetamine, but then told her he could only sell her heroin 

and that she should contact Martin if she wished to purchase 

methamphetamine. Shorter then provided Martin’s contact information, which 

the informant did not previously have, to facilitate the methamphetamine 

purchase. The informant then arranged and completed a controlled buy from 

Martin, who sold her seven grams of methamphetamine in exchange for $200. 

Shorter even made statements to officers that indicated he knew Martin and 

was working with him to sell the drugs, stating, among other things, that 

Martin “brought [him] down here” and “made [him] work.” Tr. Vol. III p. 217.

[34] Based on this evidence, we find that a factfinder could reasonably infer that 

Shorter arranged the purchase of methamphetamine from Martin, that Martin 

and Shorter were working together to try and sell the methamphetamine and 
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 20 of 27

heroin, and that this joint effort let to Martin actually selling the 

methamphetamine to the informant. As such, we find that the evidence was 

sufficient to support the convictions for conspiracy to commit dealing in a 

narcotic drug and aiding, inducing, or causing dealing in methamphetamine. 

To conclude otherwise would require us to reweigh the evidence, which we 

may not do. 

[35] The judgment of the trial court is affirmed. 

Bradford, C.J., concurs.

Pyle, J., dissents with a separate opinion.
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 21 of 27

I N T H E

COURT OF APPEALS OF INDIANA

Robert Shorter,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

Court of Appeals Case No.

19A-CR-2904

Pyle, Judge dissenting with opinion.

[36] I respectfully disagree with my colleague’s conclusion that law enforcement 

could not have obtained an arrest warrant and that there were exigent 

circumstances justifying the warrantless entry into the residence.12 Implied in 

their conclusion is the belief that law enforcement could not have obtained an 

arrest warrant because they did not know Shorter’s name. In addition, my 

colleagues conclude that Shorter’s desire to leave town was an emergency

12 Because I would find a violation of the Fourth Amendment of our Federal Constitution, I do not address 

Shorter’s argument concerning Article 1, sec. 11 of the Indiana Constitution.
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 22 of 27

permitting law enforcement officers to dispense with obtaining an arrest or

search warrant to prevent the imminent destruction or removal of evidence. My 

colleagues seem to argue that the exigency was Shorter’s desire to leave the 

State of Indiana. To fit into a recognized exigent circumstance exception, I 

assume that law enforcement was concerned that Shorter would leave, taking 

with him evidence of his drug dealing, thereby destroying or removing it from 

Indiana. However, I disagree. Because an arrest warrant could have been 

obtained and the facts do not demonstrate the existence of an emergency or the 

imminent destruction or removal of evidence, I believe the evidence obtained 

on the date of Shorter’s arrest should not have been admitted at trial.

[37] When law enforcement officers want to enter a structure to arrest an individual 

or conduct a search, they must obtain a warrant from a neutral and detached 

judicial authority. U.S. CONST. amend IV. “The purpose of this provision is to 

protect citizens from State intrusions into their homes.” Ware v. State, 782 

N.E.2d 478, 481 (Ind. Ct. App. 2003), reh’g denied. However, as my colleagues 

ably state, this well-established rule has exceptions. For example, a warrant is 

unnecessary if the “exigencies of the situation make the needs of law 

enforcement so compelling that a warrantless [entry] is objectively reasonable 

under the Fourth Amendment.” Missouri v. McNeely, 569 U.S. 141, 148-49 

(2013); See also Kentucky v. King, 563 U.S. 452 (2011). Such exigencies include 

when law enforcement officers: (1) need to provide emergency assistance to an

occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47-48 (2009); (2) are 

pursuing a fleeing suspect, U.S. v. Santana, 427 U.S. 38, 42-43 (1976); (3) need 
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 23 of 27

to enter a burning building to extinguish or investigate a fire, Michigan v. Tyler, 

436 U.S. 499, 509-10 (1978); or, as here, (4) to prevent the imminent destruction

or removal of evidence, Id. at 509; Ware, 782 N.E.2d at 481. Whether police 

faced an emergency that justifies acting without a warrant requires us to look at 

the totality of the circumstances and assess “each case of alleged exigency based 

on its own facts and circumstances.” McNeely, 569 U.S. at 150 (internal 

quotation marks and citation omitted). The fact that drugs are involved does

not alone amount to the existence of exigent circumstances justifying a 

warrantless entry to search or arrest. Ware, 782 N.E.2d at 481. 

[38] In this case, law enforcement officers were required to obtain an arrest warrant 

if they wanted to enter the residence to affect Shorter’s arrest; they claimed they 

could not because they did not know Shorter’s name. While it is true that a 

person’s name usually appears on an arrest warrant, it is not required. If a 

person’s name is unknown, Indiana law provides that an arrest warrant can 

designate a suspect by any “name or description by which he can be identified 

with reasonable certainty[.]” INDIANA CODE § 35-33-2-2(a)(2). Here, law 

enforcement officers observed Shorter over a long enough period that they 

could have described him with “reasonable certainty.” The officers watched

Shorter during the July 18, 2018 drug buy. This is evident from Detective 

Lance Blossom’s trial testimony. He stated that while watching Shorter on July 

23, 2018, he “positively identified . . . Robert Shorter, sitting in that residence 

on a couch.” (Tr. Vol. III at 58). In addition, they could also have applied for 
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 24 of 27

a search warrant to enter the residence to look for Shorter, but law enforcement 

officers chose not to.

[39] Turning to whether exigent circumstances existed justifying the warrantless 

entry into the residence, we recognize the facts in this case are essential because 

we cannot “ignore the current and future technological developments in 

warrant procedures, . . . .” McNeely, 569 U.S. at 156. While advances in 

technology do not guarantee instant access to warrants, we must acknowledge 

that “technological developments that enable police officers to secure warrants 

more quickly, and do so without undermining the neutral magistrate judge’s 

essential role as a check on police discretion, are relevant to an assessment of 

exigency.” Id. at 155. The advent of the internet, improvements in telephonic 

and wireless communications, and broadband technology have transformed not 

only how Indiana courts resolve cases but have given law enforcement the 

ability to apply for search and arrest warrants with unprecedented speed. See

F.R. Crim. P. 41(d)(3); IND. CODE § 35-33-5-8(a)(2).

[40] When we consider the advent of technology over the last several decades, it

becomes clear that the facts in this case do not establish the existence of an 

emergency demonstrating the imminent destruction or removal of evidence. 

There is no evidence that Shorter was taking any action demonstrating the 

imminent destruction or removal of evidence. It is true that Shorter wanted to 

leave town, but that was not going to be possible; Shorter was contained. He 

was under active surveillance, and, if he had attempted to leave, the officers had 

the entire law enforcement apparatus of the State to make a felony stop and 
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 25 of 27

warrantless arrest of him once he left the property based upon the probable 

cause gained from the controlled buy on July 18, 2018. See IND. CODE § 35-33-

7-1. In addition, the law enforcement officers of the Madison County Drug 

Task Force, a group skilled in the application for search warrants, watched 

Shorter for approximately thirty minutes while he was inside the residence

(more than enough time to seek a telephonic search warrant); the date was July 

23, 2018, a Monday, at approximately 6:24 p.m. (a date and time when judicial 

officers are likely available). (App. Vol. II at 19). In addition, officers watched 

Shorter for an additional fifteen minutes as he walked outside the house, went 

to the garage area, and returned to the house (even more time). In addition, 

they waited even longer for additional officers to arrive before making a 

warrantless entry onto the curtilage and into the residence. 

[41] When additional officers arrived, they formed a “stack to go up to the front 

door.” (Tr. Vol. III at 60).13 When the officers approached the entrance to the 

residence, Shorter was so startled that he “threw U.S. currency everywhere.” 

(Tr. Vol. III at 60).14 At some point, officers entered the residence and Shorter 

was subsequently placed under arrest. (Tr. Vol. III at 67). The officers also 

took the owner of the residence, Holly Brewer (“Brewer”), into custody. (Tr. 

13 A tactical stack is a single file formation used to enter a room or structure; officers entering the room 

alternate their direction of travel to cover all potential threats in the room. J. Pete Blair and M. Hunter 

Martaindale, Evaluating Police Tactics: An Empirical Assessment of Room Entry Techniques (2014).

14 I respectfully disagree with my colleagues suggestion that the open door and/or Shorter’s proximity to it 

decreases his expectation of privacy.
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 26 of 27

Vol. III at 122-23). While in police custody, the officers sought and received 

Brewer’s consent to search the residence.15

[42] The officers undoubtedly sensed the need to act quickly, but this was not an

emergency because there was adequate time for the officers to seek a telephonic 

search warrant. While my colleagues correctly concede that the best practice 

for these officers was to obtain a warrant, I submit that it was the

constitutionally required practice. In 1990, our General Assembly enacted 

INDIANA CODE § 35-33-5-8(a)(2). This law allows police to avoid the lengthy 

process of submitting a written affidavit by calling a judicial officer, providing 

the required information under oath, and recording the conversation for entry 

into the record. This process should and could have been followed here. 

Again, at no time does the record establish that Shorter was doing anything 

related to the imminent destruction or removal of evidence. Police were also 

watching him for a lengthy period. If Shorter had attempted to leave, officers 

had the ability to stop him and make a warrantless felony arrest based upon the 

probable cause that existed as a result of the controlled buy. Again, the exigent 

circumstances exception requires an emergency showing that the destruction or 

removal of evidence is imminent. McNeely, 569 U.S. at 150; Tyler, 436 U.S. at 

15 I do not believe Brewer’s consent was voluntary because it was not independent of the illegal entry. Galvin 

v. State, 582 N.E.2d 421 (Ind. Ct. App. 1991), trans. denied. The evidence shows that Officers had just made a 

warrantless entry into the residence, arrested Shorter, and then asked Brewer for consent to search. I do not 

see how there was sufficient time or other factors that could separate the consent from the illegal entry. To 

allow law enforcement to cure an unconstitutional entry by obtaining consent after the illegal entry would 

turn the protections afforded by the Fourth Amendment on its head.
Court of Appeals of Indiana | Opinion 19A-CR-2904 | July 6, 2020 Page 27 of 27

509. Here, my able colleagues are equating Shorter’s desire to leave town with 

the imminent destruction or removal of evidence.16 The evidence does not 

support this conclusion. As a result, I respectfully dissent and believe the 

admitted evidence from the residence should have been excluded.17 The 

convictions entered for counts III and V should be affirmed, but the convictions 

for counts I and II should be reversed and the matter remanded for 

resentencing. 

16 My colleagues cite to Myers v. State, 454 N.E.2d 861 (Ind. 1983) and Banks v. State, 265 Ind. 71, 351 N.E.2d 

4 (1976) as supporting their finding of exigent circumstances. However, I believe these cases are inapplicable. 

Both were handed down before the enactment of I.C. § 35-33-5-8(a)(2) (allowing for the use of telephonic 

warrants) and before the Internet was developed (allowing for the use of electronic warrants). As I noted 

above, the technological advancements in procuring warrants must be considered when assessing exigent 

circumstances. See McNeely, 569 U.S. at 155.

17 I believe that the drugs found by the K-9 in an area fifteen to twenty-five feet from the residence should 

also have been suppressed. See Florida v. Jardines, 569 U.S. 1, 6 (2013) (holding that the curtilage—that “area 

‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth 

Amendment purposes’”) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). A person’s home 

“‘protects and privileges all its branches and appurtenants.’” Id. at 6-7 (quoting California v. Ciraolo, 476 U.S. 

207, 213 (1986)). Examples of appurtenances would include, but are not limited to, the property upon which 

a detached garage is fixed, like the one in this case. New Orleans Pac. Ry. Co. v. Parker, 143 U.S. 42, 55 (1892) 

(“The word ‘appurtenant,’ as ordinarily defined, is that which belongs to or is connected with something else, 

to which it is subordinate or less worthy, and with which it passes as an incident,–such as an easement or 

servitude to land; the tackle, apparel, rigging, and furniture of a ship; a right of common to a pasture; or a 

barn, garden or orchard to a house or messuage.”). As a result, because the drugs found outside were 

discovered in connection with the warrantless entry, they should be considered “‘fruit of the poisonous tree.’” 

Segura v. United States, 468 U.S. 796, 804 (1984) (the exclusionary rule extends to indirect as well as direct 

products of an unconstitutional search) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).