Court of Appeals of Indiana | Opinion 17A-CR-3024 | June 28, 2018 Page 1 of 18

ATTORNEY FOR APPELLANT

Yvette M. LaPlante

KEATING & LAPLANTE, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kevin Shawn Carter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 28, 2018

Court of Appeals Case No.

17A-CR-3024

Appeal from the Vanderburgh 

Circuit Court

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No.

82C01-1612-F2-7290

Bailey, Judge.
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Case Summary

[1] A jury convicted Kevin Shawn Carter (“Carter”) of Dealing in a Narcotic Drug, 

as a Level 2 felony,1 and Dealing in Methamphetamine, as a Level 2 felony.2 

Thereafter, Carter admitted to being a habitual offender.3 Carter now appeals.

[2] We affirm.

Issues

[3] Carter presents the following two restated issues:

I. Whether the trial court abused its discretion by admitting 

evidence obtained from a search of a cell phone because 

the underlying warrant was impermissibly general, 

allowing an exploratory search; and

II. Whether the trial court committed fundamental error by 

admitting testimony from an officer who opined that the 

amount of heroin seized was a dealer-level quantity.

Facts and Procedural History4

 

1

Ind. Code § 35-48-4-1(a)(2), -1(e)(1).

2

I.C. § 35-48-4-1.1(a)(2), -1.1(e)(1).

3

I.C. § 35-50-2-8.

4 We heard oral argument on this case on June 7, 2018, at Ivy Tech Community College in Sellersburg, 

Indiana. We thank Ivy Tech and its guests from the Sherman Minton American Inn of Court for their 

hospitality, and we thank counsel for their advocacy.
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[4] After seeing a Ford Mustang cross the center line several times, Deputy 

Brandon Mattingly (“Deputy Mattingly”) of the Vanderburgh County Sheriff’s 

Department conducted a traffic stop. Deputy Mattingly approached the vehicle 

and observed the front passenger—Carter—making furtive movements and 

appearing to place an item under his seat. Deputy Mattingly then spoke with 

the driver, Tiffani Colschen (“Colschen”). At some point, Carter stated that he 

co-owned the vehicle, and both Colschen and Carter consented to a vehicle 

search. During the ensuing search, Deputy Mattingly found a bag between the 

front seats. Inside, there was a container holding a syringe and a spoon. Below 

the container there were several plastic bags that appeared to contain drugs; 

subsequent lab testing revealed that the bags contained, in the aggregate, 

approximately 205 grams of methamphetamine and approximately 27.5 grams 

of heroin. Carter and Colschen were arrested and their cell phones were 

confiscated. The police later obtained a warrant to search the cell phones.

[5] Carter was brought to trial on charges of Dealing in a Narcotic Drug and 

Dealing in Methamphetamine, both as Level 2 felonies. The State also alleged 

that Carter was a habitual offender. Before the trial began, Carter moved to 

suppress evidence obtained from the search of his cell phone; the trial court 

denied Carter’s motion. At trial, Carter objected to the admission of cell phone 

evidence, and the court held a conference outside the presence of the jury. At 

the conference, the State tendered an exhibit containing several pages of text 

messages. The court determined that eight messages were admissible, and that, 

among the eight, any messages from third parties were admissible only to give 
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context to Carter’s messages. The State prepared a redacted exhibit containing 

the eight admissible text messages. See State’s Ex. 23-1. Those messages—later

admitted with a limiting instruction—indicated that Carter met with three

individuals in the hours preceding the traffic stop, and had instructed one 

individual to pull around to the back, behind his Mustang, to avoid being seen.

[6] The State’s evidence also included testimony from Detective James Budde 

(“Detective Budde”), who was assigned to the local drug task force and had 

encountered heroin and methamphetamine hundreds of times as a police 

officer. Detective Budde opined that the quantity of heroin seized was “typical 

of a dealer amount,” to which Carter did not object. Tr. Vol. IV at 224.

[7] The jury found Carter guilty of the dealing counts, and Carter admitted to being 

a habitual offender. Following a sentencing hearing, the trial court imposed an 

aggregate sentence of thirty-six years in the Indiana Department of Correction.

[8] Carter now appeals.

Discussion and Decision

Cell Phone Records

[9] Carter frames his argument as a challenge to the denial of his motion to 

suppress evidence, but Carter did not seek interlocutory review of that denial. 

We therefore treat Carter’s argument as a challenge to the admission of the 

evidence. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). “The trial 

court has broad discretion to rule on the admissibility of evidence.” Thomas v. 
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State, 81 N.E.3d 621, 624 (Ind. 2017). Ordinarily, we review evidentiary rulings 

for an abuse of discretion, evaluating whether the court’s ruling was “clearly 

against the logic and effect of the facts and circumstances.” Id. “However, 

when a challenge . . . is predicated on the constitutionality of the search or 

seizure of evidence, it raises a question of law that we review de novo.” Id.

[10] Both the Fourth Amendment to the United States Constitution and Article 1, 

Section 11 of the Indiana Constitution proscribe unreasonable searches of 

“persons, houses, papers, and effects.”5 Moreover, under the Fourth 

Amendment, “reasonableness generally requires the obtaining of a judicial 

warrant.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995).

[11] There are a few “specifically established and well-delineated exceptions” to the

warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). Among 

those exceptions “is a search incident to a lawful arrest,” Arizona v. Gant, 556 

U.S. 332, 338 (2009), whereby the Fourth Amendment permits “a warrantless 

search of the arrestee’s person and the area ‘within his immediate control,’”

Davis v. United States, 564 U.S. 229, 232 (2011) (quoting Chimel v. California, 395 

U.S. 752, 763 (1969)). Under this exception, officers generally may search the 

 

5 The Fourth Amendment provides: “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.”

Using nearly identical language, Article 1, Section 11 of the Indiana Constitution provides: “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.”
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containers they encounter. See United States v. Robinson, 414 U.S. 218, 236 

(1973) (determining that the Fourth Amendment permitted a search of a 

package of cigarettes that was found during a search incident to arrest); cf.

Garcia v. State, 47 N.E.3d 1196, 1205 (Ind. 2016) (“Under Article 1, Section 11, 

opening a container found on the person of an arrestee in the course of a search 

incident to [a]valid arrest will not automatically be deemed unreasonable.”).

[12] However, as the United States Supreme Court noted in Riley v. California, “[a] 

search of the information on a cell phone bears little resemblance to 

the . . . brief physical search” of a container found on an arrestee’s person. 134 

S. Ct. 2473, 2485 (2014). Namely, modern cell phones—as a “particular 

category of effects” subject to Fourth Amendment protection, id. at 2485—

“implicate privacy concerns far beyond those implicated by the search of a 

cigarette pack, a wallet, or a purse.” Id. at 2488-89. “Indeed, a cell phone 

search would typically expose to the government far more than the most 

exhaustive search of a house.” Id. at 2491 (emphasis removed). In view of 

these privacy concerns, the Riley Court concluded that “officers must generally 

secure a warrant” before searching a cell phone. Id. at 2485.

[13] Recently, the United States Supreme Court addressed similar privacy concerns 

in deciding Carpenter v. United States, No. 16-402, 585 U.S. ____, 2018 WL 

3073916 (June 22, 2018). There, law enforcement had obtained, without a 

warrant, location-related data from an individual’s wireless carrier’s cell-site 

record that the cell phone had logged “by dint of its operation.” Id. at *12. The 

Court rejected arguments that the information was rendered less private 
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because it was part of business records or because, by using the phone, the 

individual had technically disclosed the location information to the wireless 

carrier. Id. at *11-12. The Court reflected on the “unique nature of cell phone 

location records,” id. at *9, and ultimately concluded “that the Government 

must generally obtain a warrant supported by probable cause before acquiring 

such records,” id. at * 13.

[14] Here, unlike in Riley and Carpenter, the police secured a warrant before 

searching the cell phone data. Thus, we must look beyond these cases to 

resolve the issue Carter presents—which is whether the warrant was defective,

rendering the evidence unconstitutionally obtained and, thereby, inadmissible.

Probable Cause

[15] As an initial matter, for a valid warrant to issue, the police must first set forth 

probable cause to conduct the search.6 U.S. Const. amend. IV; Ind. Const. art. 

1, § 11; I.C. §§ 35-33-5-2, -8 (codifying constitutional principles and establishing 

requirements for affidavits or other testimony in support of search warrants).

Probable cause is a “fluid concept incapable of precise definition . . . [and] is to 

be decided based on the facts of each case.” Figert v. State, 686 N.E.2d 827, 830 

(Ind. 1997). In determining whether a police affidavit sets forth probable cause 

“to issue a search warrant, ‘[t]he task of the issuing magistrate is simply to make 

 

6 At oral argument, Carter conceded that there was probable cause to issue a search warrant. However, we 

must engage in some discussion of probable cause, as the topic informs other aspects of our analysis.
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a practical, common-sense decision whether, given all the circumstances set 

forth in the affidavit . . . there is a fair probability that contraband or evidence of 

a crime will be found in a particular place.’” State v. Spillers, 847 N.E.2d 949, 

952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).7 Put 

differently, the central question in a probable cause determination is whether 

the affidavit presents facts, together with reasonable inferences, demonstrating a 

sufficient nexus between the suspected criminal activity and the specific place to

be searched. See Eaton v. State, 889 N.E.2d 297, 300 (Ind. 2008); Figert, 686 

N.E.2d at 830 (determining that a warrant to search a residence was not 

supported by probable cause where the underlying affidavit indicated that drug 

sales occurred in two residences that were merely nearby the residence to be 

searched, and that unidentified individuals had frequented all three residences).

[16] Here, law enforcement sought a warrant to search the cell phone for evidence of 

the crime of dealing methamphetamine. As to suspected criminal activity, the 

affiant stated that the police found a baggie inside Carter’s co-owned vehicle

that contained a substance field-tested to be methamphetamine, with a field 

weight of 207 grams. The affiant also stated that, based on training and 

experience, methamphetamine is typically purchased in one-gram quantities, 

 

7 Upon a challenge to whether probable cause supported the issuance of a search warrant, “[t]he duty of the 

reviewing court is to determine whether the magistrate had a ‘substantial basis’ for concluding that probable 

cause existed.” Id. at 953 (quoting Gates, 462 U.S. at 238-39). There is a substantial basis when “reasonable 

inferences drawn from the totality of the evidence support the determination of probable cause.” Jackson v. 

State, 908 N.E.2d 1140, 1142 (Ind. 2009). Appellate courts review de novo whether a substantial basis 

supported the determination of probable cause, Spillers, 847 N.E.2d at 953, while affording deference to the 

magistrate’s decision to issue the warrant. McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018).
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and that the quantity in the vehicle was consistent with dealing activity. The 

affiant further stated that another baggie in the vehicle contained an amount of 

heroin consistent with drug dealing. As to the cell phone, the affidavit stated 

that the phone was recovered from Carter, and that those involved in drug 

activity primarily use cell phones and electronic devices to communicate with 

one another through calls, text messages, and applications such as Facebook.

[17] In Eaton, law enforcement had obtained evidence that the defendant was 

involved in drug-trafficking activity taking place at a muffler shop. 889 N.E.2d 

at 299. In the affidavit in support of a search warrant for the defendant’s home, 

the affiant set forth factual background regarding the defendant’s connection to 

the drug trafficking. Id. The affiant also “stated that drug traffickers commonly 

keep U.S. currency within quick access and maintain records in a variety of 

forms including ledgers, computers, cell phones, pagers, phone bills, and wire 

transfer receipts.” Id. at 300 (internal quotation marks omitted). It does not 

appear that the affiant specifically stated that drug traffickers typically kept such 

records at their residences. See id. Nonetheless, in resolving Eaton, our supreme 

court upheld the underlying probable cause determination, concluding that the 

affidavit presented “facts showing that the defendant was involved in drug 

trafficking” along with “facts and reasonable inferences establishing a fair 

probability that records and equipment related to such drug trafficking were 

likely to be found in the defendant’s home.” Id. In so concluding, the Court 

observed that “other courts ha[d] recognized that it is reasonable to believe that 

drug dealers keep evidence of their activities in their residences.” Id.
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[18] Examining the instant case in light of Eaton, here, the supporting affidavit even 

more directly set forth the nexus between the asserted criminal activity—

dealing methamphetamine—and the place to be searched—the cell phone, 

through which dealers typically communicate concerning their illegal activity. 

Thus, the affidavit provided a substantial basis for determining that probable 

cause existed to support the issuance of a warrant to search the phone. Yet, 

underlying probable cause is not the only facet of a constitutional warrant.

Particularity

[19] In addition to requiring probable cause, both the United States Constitution and 

the Indiana Constitution provide that a warrant must contain a particular 

description of the place to be searched and the persons or things to be seized. 

U.S. Const. amend. IV; Ind. Const. art. 1, § 11. This particularity requirement 

“ensures that the search will be carefully tailored to its justifications, and will 

not take on the character of the wide-ranging exploratory searches the Framers 

intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). Indeed, the 

requirement aims to prevent “a general, exploratory rummaging in a person’s 

belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

[20] Although the warrant must describe “with some specificity” where officers are 

to search and what they are to seize, “there is no requirement that there be an 

exact description.” Overstreet v. State, 783 N.E.2d 1140, 1158 (Ind. 2003). 

Nonetheless, the warrant must be specific enough so that officers can, “with 

reasonable effort,” ascertain the place to be searched and the items to be seized. 
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Steele v. United States, 267 U.S. 498, 503 (1925). This requirement “prevents the 

seizure of one thing under a warrant describing another. As to what is to be 

taken, nothing is left to the discretion of the officer executing the warrant.” 

Marron v. United States, 275 U.S. 192, 198 (1927); see also Griffith v. State, 59 

N.E.3d 947, 958 (Ind. 2016) (observing that a sufficient description avoids 

giving the police unbridled discretion). Ultimately, the description in a search 

warrant should “‘be as particular as circumstances permit.’” State v. Foy, 862 

N.E.2d 1219, 1227 (Ind. Ct. App. 2007) (quoting United States v. Lievertz, 247 F.

Supp. 2d 1052, 1062 (S.D. Ind. 2002)). Moreover, to satisfy the particularity 

requirement, it is permissible if a warrant incorporates by reference certain 

supporting documents—such as the probable cause affidavit—that collectively 

“serv[e] to identify the scope of . . . items that could properly be seized.” 

Membres v. State, 889 N.E.2d 265, 276 (Ind. 2008).

[21] Here, the warrant authorized searching the phone for:

fruits, instrumentalities and evidence pertaining to the crime(s) of 

DEALING, POSSESSION and/or CONSPIRACY TO 

COMMIT DEALING OR POSSESSION OF 

METHAMPHETAMINE, as more particularly described as 

follows: [] Permission to search the above described phone for 

any information relating to calls, messages, including Facebook 

messages and accounts, and all information including but not 

limited to photographs, images, emails, letters, applications, and 

folders as well as any messages that may be stored on the phone 

that would indicate the identity of the phone’s owner/user and 

permission to view and copy said information if deemed 

necessary for preservation.
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Pre-trial Hearing Exhibit 1 (emphasis added).

[22] Carter asserts that the warrant authorized a broad search of his device for all 

information that might supply indicia of ownership, rendering the warrant an 

impermissible general warrant. Carter points out that the police extracted “all 

the information on the cell phone,” thereby generating “a document of roughly 

a thousand pages, which was then analyzed for criminal activity.” Appellant’s 

Br. at 16-17. Directing our attention to the privacy concerns articulated in 

Riley, Carter essentially argues that a warrant is unconstitutionally general 

where it permits law enforcement to review all the information on a cell phone 

to look for indicia of identity of the phone’s owner.8

[23] However, the warrant specifically described the place law enforcement could 

search—the phone recovered from Carter—and specifically described what law 

enforcement could search for—(1) “any information relating to calls, messages, 

including Facebook messages and accounts,” and (2) “all information . . . that 

would indicate the identity of the phone’s owner/user.” Pre-trial Hearing 

Exhibit 1. Moreover, the first clause permitting the search for calls and 

messages enjoys a close nexus to the probable cause that justified issuing the 

search warrant—which is that Carter was a suspected drug dealer, and drug 

 

8 Carter also relies on Ogburn v. State, 53 N.E.3d 464 (Ind. Ct. App. 2016), trans. denied, but that case did not 

involve an insufficiently particular search warrant. Rather, in Ogburn, this Court determined that a warrant 

was not supported by probable cause and that, in the alternative, the ensuing search “clearly exceeded the 

scope of the warrant.” 53 N.E.3d at 474. To the extent Ogburn comments on particularity, we regard its 

statements as dicta. See Koske v. Townsend Eng’g Co., 551 N.E.2d 437, 443 (Ind. 1990) (“[S]tatements not 

necessary in the determination of the issues presented . . . are not binding and do not become the law.”).
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dealers use cell phones to communicate with others involved in illicit drug 

activity. See Eaton, 889 N.E.2d at 300. Thus, this aspect of the search warrant

was “tailored to its justifications.” Maryland, 480 U.S. at 84.

[24] In carrying out the search, law enforcement did extract more than one thousand 

pages of information using a “logical extraction” device that created an “auto 

generated” report of the file architecture on the phone. Tr. Vol. IV at 142-43. 

Although Carter draws our attention to the quantity of data extracted, he has 

not demonstrated that there was any other way to practically conduct the 

permitted search. As the State observes, “[a] great deal of other information 

will likely have to be sifted through in order to find the relevant information—

similar to looking through drawers in a home or office file cabinet for specific 

files or letters that are relevant to the investigation.” Appellee’s Br. at 15. 

Ultimately, we discern no indication that law enforcement had the ability to 

determine, ex ante, that certain pages could not have contained any of the 

information sought. See United States v. Stabile, 633 F.3d 219, 238 (3d Cir. 2011) 

(“‘[A] computer search may be as extensive as reasonably required to locate the 

items described in the warrant’ based on probable cause.” (quoting United States 

v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)); Wheeler v. State, 135 A.3d 

282, 301 (Del. 2016) (“Some irrelevant files may have to be at least cursorily 

perused to determine whether they are within the authorized search ambit.”).

[25] With respect to Carter’s assertion that the second clause was impermissibly 

general—that is, the clause permitting a search for all indicia of ownership of 

the phone—the challenged evidence consisted only of text messages. Assuming 
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arguendo that the second clause was insufficiently particular, even where a 

portion of a search warrant is too general, the Indiana Supreme Court has 

explained that “[t]he infirmity . . . does not doom the entire warrant.” Warren 

v. State, 760 N.E.2d 608, 610 (Ind. 2002). Rather, the infirmity requires 

“only . . . suppression of the evidence seized pursuant to that part of the 

warrant but not the suppression of the evidence obtained pursuant to the valid 

specific portions of the warrant.” Id. (citing United States v. Greene, 250 F.3d 

471, 477 (6th Cir. 2001) and United States v. Reed, 726 F.2d 339, 342 (7th Cir. 

1984)); see also United States v. Galpin, 720 F.3d 436, 448-50 (2d Cir. 2013). 

Here, the challenged text messages were seized pursuant to the other, specific 

portion of the warrant that authorized searching the phone for messages.9

[26] Based on the foregoing, we conclude that the challenged text messages were not 

seized pursuant to an impermissible general warrant. Therefore, the court did 

not abuse its discretion by admitting the text messages over Carter’s objection.

Reasonableness

[27] Carter briefly argues that the search was unreasonable under Article 1, Section 

11 of the Indiana Constitution. Under the Indiana Constitution, the legality of 

 

9 At oral argument, there was some discussion about the possibility of officers coming across evidence of a 

different crime while combing through electronic files pursuant to a warrant. Because the case before us does 

not present such facts, our opinion does not extend to that hypothetical situation. See Snyder v. King, 958 

N.E.2d 764, 786 (Ind. 2011) (observing that courts should decide cases “only on the specific facts of the 

particular case and not on hypothetical situations”). Nonetheless, we expect that existing caselaw provides 

ample analogues should this issue arise in the electronic context. See, e.g., Overstreet, 783 N.E.2d at 1160 

(determining that the plain view doctrine permitted the seizure of evidence that officers came across while 

carrying out a valid search warrant).
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a search “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). In evaluating the reasonableness of a search, we balance three 

factors: (1) the degree of suspicion of unlawful activity; (2) the degree of 

intrusion the method of the search imposes on the citizen’s ordinary activities; 

and (3) the extent of law enforcement needs. Id. at 361.

[28] Here, the search did not greatly intrude upon Carter’s activities. Nonetheless, 

the search was intrusive in nature, as it involved searching a personal cell 

phone—a device that often contains highly personal information. However, 

law enforcement had located contraband in Carter’s vehicle—specifically, a 

quantity of methamphetamine with a street value around $20,000 and a 

quantity of heroin with a street value between $9,000 and $12,000. Thus, law 

enforcement had a high degree of suspicion of unlawful activity. Furthermore, 

searching the phone advanced law enforcement needs related to identifying 

drug-dealing activity and protecting the community from the hazards of 

methamphetamine and heroin. On balance, we conclude that the search was 

reasonable under the totality of the circumstances.

Opinion Testimony

[29] Carter argues that the trial court abused its discretion by admitting testimony 

from Detective Budde, who opined that the quantity of heroin seized was 

“typical of a dealer amount.” Tr. Vol. IV at 224. Because Carter failed to raise 

a contemporaneous objection, Carter’s only available argument with respect to 
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admission of the testimony is that the admission constituted fundamental 

error.10 See, e.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Yet, Carter 

declined to argue fundamental error, despite the opportunity to do so.11 Thus, 

Carter has waived any fundamental-error argument. See Ferguson v. State, 40 

N.E.3d 954, 957 (Ind. Ct. App. 2015), trans. denied. Waiver notwithstanding,

Carter argues that Detective Budde’s testimony was inadmissible because it was 

inaccurate and contrary to law.12 To the extent Carter’s argument involves

statutory interpretation, we interpret statutes de novo. Johnson v. State, 87

N.E.3d 471, 472 (Ind. 2017).

[30] Carter directs us to Indiana Code Section 35-48-4-1(a)(2), which criminalizes 

the possession of heroin with the intent to deliver the drug. Under the statutory 

framework, an individual can be convicted of dealing under either of two 

circumstances: (1) if the amount possessed is at least twenty-eight grams or (2) 

“there is evidence in addition to the weight of the drug that the person intended 

to . . . deliver . . . the drug.” I.C. § 35-48-4-1(b). Here, the amount of heroin 

 

10 In his Appellant’s Brief, Carter states that the evidence was admitted over his objection. However, the 

record indicates that no objection was made at the time the evidence was admitted, and it does not appear 

that the trial court entered a continuing objection that would have preserved the issue. See, e.g., Kindred v. 

State, 524 N.E.2d 279, 292 (Ind. 1988).

11 In its brief, the State pointed out that Carter had failed to raise a contemporaneous objection and had not 

argued fundamental error on appeal. Thereafter, Carter did not argue fundamental error in his Reply Brief.

12 In a footnote, Carter briefly asserts that Detective Budde was not qualified to give opinion testimony as a 

skilled witness pursuant to Indiana Evidence Rule 701. At oral argument, however, Carter conceded that 

Detective Budde was qualified to give the opinion testimony, but maintained that the legislature preempted 

the particular type of opinion testimony due to the framework of the statute at issue.
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was less than twenty-eight grams, and so a conviction required additional 

evidence of Carter’s intent to deliver the heroin. See id.

[31] According to Carter, the very existence of the twenty-eight-gram presumption 

precludes the admission of testimony indicating that less heroin could constitute 

a “dealer quantity” of heroin. He argues that “[t]he legislature has made a 

decision about the quantity of drug which may be interpreted as presumptive of 

dealing, and the officer has rendered an opinion that is contrary to what the 

legislature found.” Reply Br. at 6. However, we conclude that the statute does 

not operate to bar admission of probative evidence related to the defendant’s 

intent to deal the drug. Rather, the statute eliminates the State’s burden of

presenting additional intent evidence when there is evidence that the drug 

weighed at least twenty-eight grams. Put another way, once the State has 

introduced evidence that the defendant possessed the statutory amount, there is 

sufficient evidence to establish the defendant’s intent to deliver the drug. Yet, 

the State is not foreclosed from presenting additional evidence of intent, and the 

statutory framework does not otherwise affect the admissibility of evidence of 

intent where, as here, the quantity possessed is less than twenty-eight grams.13

 

13 Moreover, it is not as though the weight and weight-based opinion testimony constituted the only evidence 

indicative of Carter’s intent to deliver the heroin. Rather, the evidence indicated that Carter possessed 

multiple types of drugs with a collective street value around $30,000, and that he had met with several 

individuals prior to the traffic stop, at one point instructing an individual to covertly pull behind his vehicle.
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[32] Thus, we conclude that the trial court did not err by admitting the challenged 

testimony.

Conclusion

[33] The court did not abuse its discretion by admitting text messages procured from 

the search of Carter’s cell phone; the search was conducted pursuant to a valid 

search warrant and the search was reasonable under the totality of the 

circumstances. The court did not err in admitting Detective Budde’s testimony.

[34] Affirmed.

Najam, J., and May, J., concur.