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: ATTORNEYS FOR APPELLEE:

KEVIN WILD GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

CHANDRA K. HEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMES SMITH, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1306-CR-292

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Steven Eichholtz, Judge

The Honorable Michael Jensen, Magistrate

Cause No. 49G20-1302-FA-12948

February 19, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
2

James Smith appeals from his convictions after a bench trial of one count of class C 

felony Possession of Cocaine and a Firearm,1 one count of class C felony Possession of 

Cocaine,2 one count of class A misdemeanor Possession of Marijuana,3and one count of 

class A misdemeanor Carrying a Handgun Without Being Licensed,4contending that the trial 

court abused its discretion by admitting evidence that Smith possessed cocaine, marijuana, 

and a firearm without a license, when that evidence was allegedly obtained in contravention 

of the Fourth Amendment to the United States Constitution. 

We affirm and remand.

David Parrish was employed as a security guard by Avert Security, a private security 

company that is not affiliated with law enforcement. Parrish had been trained through the 

National Rifle Association, received pepper-spray training, and through his employment, had 

encountered marijuana on at least ten occasions. Parrish was patrolling at Colonial Square 

Apartments on the evening of February 24, 2013. Parrish testified at trial that he was 

“pulling onto one of the parking lot areas, and as I pulled in, I saw a subject standing by the 

fence that surrounds the dumpster. And as I was pulling in, he took approximately two steps 

backwards.” Transcript at 10. The man Parrish observed was subsequently identified as 

Smith. 

 

1

Ind. Code Ann. § 35-48-4-6(b)(1)(B) (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical 

Sess.).

2

 I.C. § 35-48-4-6(b)(1)(A) (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.).

3

 I.C. § 35-48-4-11 (West. Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.). 

4

Ind. Code Ann. § 35-47-2-1 (West, Westlaw current through 1st Reg. Sess. & 1st Reg. Technical Sess.).
3

Parrish pulled his vehicle alongside Smith and exited his vehicle. Parrish asked Smith 

for identification in order to determine if Smith was a visitor or an apartment resident. Smith 

refused to remove his hands from his coat as he spoke with Parrish. Parrish asked Smith to 

remove his hands from his pockets, and as Smith did so, a loaded firearm and a green leafy 

substance, later identified as marijuana, fell from Smith’s pocket onto the ground. Parrish 

also noticed the odor of burnt marijuana emanating from Smith. Smith told Parrish “that’s 

[sic] not my guns.” Id. at 13. Because Smith referred to “guns,” Parrish believed that Smith 

possessed one or more additional weapons. Parrish placed Smith in handcuffs and called 9-

1-1. Parrish then retrieved the marijuana and firearm from the ground and placed them on 

the hood of his vehicle.

Officer Evan Meyer of the Indianapolis Metropolitan Police Department responded to 

Parrish’s 9-1-1 call at the Colonial Square Apartments. Officer Meyer testified at trial that 

“As I pulled in, the security guard flashed his flashlight at me so I could see exact—his exact 

location. As I pulled off [sic], I saw that he had Mr. Smith at the back—or at this [sic] front 

of his—he had a Crown Vic, Crown Victoria. As I walked up to him, I saw that there was a 

handgun, a digital scale,5and some marijuana sitting on the hood of the car.” Id. at 23. 

Parrish told Officer Meyer the circumstances leading up to the marijuana and weapon falling 

out of Smith’s pocket. Officer Meyer then asked Smith for his name and Smith complied. 

After running Smith’s name through the police computer system, he discovered that Smith 

did not have a license for the firearm. Officer Meyer arrested Smith and then conducted a 

 

5 The admissibility of the digital scale is not challenged here on appeal.
4

search incident to that arrest. Officer Meyer discovered what was later identified as 5.09 

grams of crack cocaine in Smith’s right front pocket. Smith was then transported to jail.

The State charged Smith with one count of class A felony dealing in cocaine, one 

count of class C felony possession of cocaine and a firearm, one count of class C felony 

possession of cocaine, one count of class D felony possession of marijuana, one count of 

class A misdemeanor carrying a handgun without a license.6 On May 21, 2013, the trial court 

sentenced Smith to a term of seven years executed on his conviction for possession of 

cocaine as a class C felony and to a concurrent, executed term of two years for Smith’s 

conviction of class A misdemeanor possession of marijuana.7 Smith now appeals.

Smith asserts that the trial court abused its discretion by admitting into evidence 

marijuana, cocaine, and the firearm, claiming that the items were the product of an 

unreasonable search and seizure. Generally speaking, the admission or exclusion of evidence 

is entrusted to the discretion of the trial court. Collins v. State, 966 N.E.2d 96 (Ind. Ct. App.

2012). A trial court’s decision will be reversed only for an abuse of discretion, which occurs 

when the trial court’s decision is clearly against the logic and effect of the facts and 

circumstances before the court or when it misinterprets the law. Id. On review, we consider 

 

6 The State correctly observed that the chronological case summary, abstract of judgment, and judgment of 

conviction indicate that Smith was charged with and convicted of Count VI, carrying a handgun without a 

license as a class C felony. Smith has provided this court with a copy of the trial court’s nunc pro tunc order 

vacating the judgment of conviction on that count. Although this judgment does not impact Smith’s aggregate 

sentence, the matter is remanded to correct the trial court’s records. 

7 The State correctly observes that Smith’s two-year sentence for class A misdemeanor possession of marijuana 

is illegal. Pursuant to Ind. Code Ann. § 35-50-3-2 (West, Westlaw current through 1st Reg. Sess. & 1st Reg. 

Technical Sess.) a person who commits a class A misdemeanor shall be imprisoned for a fixed term of not 

more than one year. Further, Smith was not sentenced on his conviction for carrying a handgun without a 

license as a class A misdemeanor. These matters are remanded to the trial court for resentencing on Count V 

and Count VI. 
5

the conflicting evidence most favorable to the trial court’s ruling and any uncontested 

evidence favorable to the defendant. Id. In our review of whether the introduction of 

evidence affected a defendant’s substantial rights, we assess the probable impact of the 

evidence on the jury. Id. The erroneous admission of evidence is harmless and not reversible

error where the evidence is merely cumulative of other evidence properly admitted. Id.

At trial, Smith’s sole objection pertained to the admissibility of the marijuana. Thus, 

Smith’s failure to lodge a contemporaneous objection to the admissibility of the cocaine and 

the firearm waives the issue of their admissibility for appellate review. “The failure to make 

a contemporaneous objection to evidence when it is offered waives any claim of error in its 

admission on appeal.” Shoultz v. State, 995 N.E.2d 647, 654 (Ind. Ct. App. 2013). By 

making a contemporaneous objection at trial, a party immediately and fully alerts the trial

court of the legal issue. Id. 

Additionally, Smith’s objection at trial to the admissibility of the marijuana was based 

on an alleged defect in the chain of custody. On appeal, Smith advances a constitutional 

claim regarding each of these items of evidence. A defendant may not raise one ground for 

objection at trial and argue a different ground on appeal. Morgan v. State, 755 N.E.2d 1070 

(Ind. 2001). 

Although a waiver argument is raised, we address the merits of Smith’s claims. Smith 

argued his motion to suppress, at the trial court’s direction, at the close of the State’s case, 

and the motion was denied. Smith did challenge the legality of the search and such was 

argued at that time.
6

There is no evidence in the record to suggest that Parrish was acting as an agent of law 

enforcement. Parrish testified that he was employed by Avert, a private security company, 

which had a contract through Gene B. Glick Properties, for security at Colonial Square 

Apartments. Parrish wore a uniform with patches on it, but had to telephone law 

enforcement officers in the event he detained an individual and needed assistance. 

We stated the following in State v. Hart:

The constitutional protection against unreasonable searches and seizures does 

not apply to actions of private persons when they are not acting as agents of 

police authorities. The rationale for the rule is that the Fourth Amendment was 

historically directed at governmental law enforcement conduct, and the 

exclusionary rule, which is aimed at governmental law enforcement 

misconduct, would serve no useful purpose when applied to private persons. 

Here, if the citizen’s arrest had been unlawful, [the private person] might have 

incurred liability for damages, but the evidence would not have been 

suppressed. 

669 N.E.2d 762, 765-66 (Ind. Ct. App. 1996) (internal citations omitted). Given that Parrish 

was not acting as an instrument or agent of the government, Smith’s entitlement to relief 

hinges on whether he can show that the police obtained the cocaine, marijuana, and firearm 

illegally. 

Regarding the marijuana and the firearm, Officer Meyer testified that he observed 

those items on the hood of Parrish’s car upon his arrival at the scene. In other words, Officer 

Meyer observed the items in plain view.

Police may seize evidence not identified in a warrant under the plain view 

doctrine. The plain view doctrine allows a police officer to seize items when 

he inadvertently discovers items of readily apparent criminality while rightfully

occupying a particular location. First, the initial intrusion must have been 

authorized under the Fourth Amendment. Second, the items must be in plain 
7

view. Finally, the incriminating nature of the evidence must be immediately 

apparent. 

Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003). Here, Officer Meyer responded to a 9-1-1 

call placed by Parrish and observed the marijuana and the firearm along with a digital scale 

on the hood of Parrish’s car. The incriminating nature of the evidence on the hood of the car 

was immediately apparent and its seizure was not unreasonable. 

Furthermore, the cocaine was properly admitted as the result of search incident to 

arrest. 

The search incident to arrest exception to the warrant requirement provides 

that a police officer may conduct a search of “‘the arrestee’s person and the 

area within his immediate control.’” “Evidence resulting from a search 

incident to a lawful arrest is admissible at trial.” “Probable cause adequate to 

support a warrantless arrest exists when, at the time of the arrest, the officer 

has knowledge of facts and circumstances that would warrant a person of 

reasonable caution to believe that the suspect committed a criminal act.

Rhodes v. State, 996 N.E.2d 450, 455 (Ind. Ct. App. 2013) (internal citations omitted). After 

Smith identified himself, Officer Meyer ran Smith’s name through the police computer 

system and discovered that Smith did not have a license for the firearm that had fallen from 

his pocket. Officer Meyer lawfully arrested Smith for the offense of carrying a handgun 

without a license, and incident to that arrest, searched Smith’s person. Officer Meyer 

discovered the cocaine in the right pocket of Smith’s coat. The cocaine was lawfully seized. 

Additionally, we conclude that Officer Meyer did not violate article 1, section 11 of 

the Indiana Constitution. “Indiana has explicitly rejected the expectation of privacy as a test 

of the reasonableness of a search or seizure. The legality of a governmental search under the 

Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under 
8

the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). In 

this case, Officer Meyer had a high degree of concern and an articulable suspicion that 

criminal activity was taking place. As he approached Parrish and Smith, he observed a bag 

of marijuana, a digital scale, and a firearm in plain view on the hood of Parrish’s car. Upon 

discovering that Smith lacked a license to carry the firearm, Officer Meyer had probable 

cause to believe that criminal activity was taking place. The search of Smith’s person 

incident to his arrest was minimally intrusive and also necessary to determine if Smith 

possessed other weapons. We find no violation of Indiana constitutional protections here.

Judgment affirmed and remanded. 

KIRSCH, J., and BAILEY, J., concur.