Morgan M. Richey, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Morgan M. Richey appeals from her convictions of dealing in methamphetamine, misdemeanor possession of paraphernalia, and habitual offender status, contending that the trial court abused its discretion by admitting evidence collected in violation of her right to be free from unreasonable search and seizure and that her sentence is inappropriate in light of the nature of the offense and the character of the offender. Finding no abuse of discretion and declining to exercise our power to revise her sentence, we affirm.

Facts and Procedural History

[2] Police officers, bearing a warrant for Richey's arrest for dealing in methamphetamine, knocked on the door of her house. When Richey answered the door, Indiana State Police Trooper Kyle Taylor recognized her and confirmed her identification. As soon as Richey opened the door, Trooper Taylor smelled the odor of marijuana coming from inside her home. Taylor directed Richey to turn around, which she did, and he placed her in handcuffs. When asked if there were others inside the home, Richey acknowledged that her friend was inside.

[3] Taylor passed through Richey's doorway and instructed her to continue through the vestibule, or short hallway, to the kitchen area of the house. Although the kitchen and the living room were two separate areas, there was no wall between them. Upon entering the kitchen, Trooper Taylor saw a woman sitting in the living room area. As he walked over to get her identification, he saw a pink bong, a device used for smoking drugs, on top of the coffee table near her. He also saw an open Tang canister on the floor, which contained bags of a white, crystalline substance that looked like methamphetamine. The woman was searched and six bags containing methamphetamine, cocaine, and marijuana were recovered. Officers found another individual asleep in a bedroom where Taylor observed two devices used for smoking marijuana. Taylor gathered all of the evidence of criminal activity in plain view.

[4] The State charged Richey with Level 2 felony dealing in methamphetamine, Level 3 felony possession of methamphetamine, Level 6 felony possession of cocaine, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. And the State filed a separate allegation that Richey was an habitual offender. The matter proceeded to trial where a jury found Richey guilty of dealing in methamphetamine, possession of methamphetamine, and possession of paraphernalia. She was found not guilty of the other charges. Richey admitted that she was an habitual offender.

[5] The trial court sentenced Richey to a term of twenty-five years for dealing in methamphetamine, enhanced by fifteen years for being an habitual offender. The court merged her conviction for possession of methamphetamine with her conviction for dealing in it. The court then entered a concurrent sixty-day sentence for her conviction of possession of paraphernalia. Richey now appeals.

Discussion and Decision

I. Reasonableness of Search and Seizure

[6] Richey says that “law enforcement made entry into [her] home where they took video, took photos, and seized items of contraband that were not visible from the front door.” Appellant's Br. p. 11. She claims that through those actions, “law enforcement violated [her] right to be free from search and seizure without any exigent circumstances or need for protective sweep to justify their conduct.” Id. She seeks reversal because “[u]nder the totality of the circumstances, law enforcements’ [sic] conduct was unreasonable.” Id.

[7] Generally, “[w]e afford trial courts broad discretion in ruling on the admission of evidence.” Richardson v. State, 189 N.E.3d 629, 635 (Ind. Ct. App. 2022). “But when an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of the evidence, it raises a question of law, and we consider that question de novo.” Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014). “ ‘De novo review allows us to decide an issue without affording any deference to the trial court's decision.’ ” Berryman v. State, 127 N.E.3d 1246, 1248 (Ind. Ct. App. 2019) (quoting Shaffer v. State, 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003). Richey's challenges are brought under both federal and state constitutional protections from unlawful search and seizure.

A. Fourth Amendment

[8] “The Fourth Amendment to the U.S. Constitution protects persons from unreasonable search and seizure by prohibiting, as a general rule, searches and seizures conducted without a warrant supported by probable cause.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). “As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception.” Id. “It is the State's burden to prove that one of these well-delineated exceptions is satisfied.” Id.

[9] “ ‘At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Duran v. State, 930 N.E.2d 10, 14 (Ind. 2010) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). “In recognition of this principle, the police may not enter a home by force to make a ‘routine’ arrest without a warrant.” Id. at 14-15 (quoting Payton v. New York, 445 U.S. 573, 576 (1980)).

[10] Protective sweeps may be conducted and are constitutionally permissible as an incident to arrest as explained by the United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 334-35 (1990).

[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. “A protective sweep is authorized under Buie either of rooms immediately adjoining the place of the arrest or of areas that might, given facts articulable by the searching officer, contain a hiding person who might jeopardize officers’ safety.” Weddle, 989 N.E.2d at 375.

[11] Richey challenged the admission of the bodycam video, photos, and items of contraband, contending that the State had failed “to demonstrate that [the officers] had both probable cause and exigent circumstance[s] during a non-consensual warrantless home entry,” rendering it “inherently unreasonable.” Appellant's Br. p. 13. And on appeal, she advances the argument that the officers’ entry into her home and subsequent seizure of items of contraband was similar to that which was disapproved in Nance v. State, 216 N.E.3d 464 (Ind. Ct. App. 2023). We disagree.

[12] There are several distinguishing factors between the scenario in Nance and the present case. In Nance, officers were conducting business at a neighbor's house when they noticed the smell of marijuana wafting from Nance's residence. They approached the house to do a “knock and talk” after discovering that the license plate of a car parked in front did not match the vehicle and was not registered to either Nance or his neighbor. After Nance opened the door, the smell of marijuana was overwhelming, he refused to step outside when asked, he looked over his shoulder, and the officers heard movement and noises in his home before one of the officers grabbed Nance's wrist and pulled him outside to handcuff him. The officers mistakenly believed that they heard others inside the house, entered it, and conducted a brief search where they saw evidence of criminal activity. But the officers also learned that the noise was produced by a television and a confined dog. They obtained a search warrant based on the brief search and seized evidence of criminal activity. Officers later obtained another search warrant based on the prior searches and seized more evidence of criminal activity. A panel of this Court concluded that the search and seizure ran afoul of constitutional protections and the evidence was inadmissible. Id. at 481.

[13] The only similarity between this case and Nance is the presence of the smell of marijuana emanating from the house. Here, the officers had a warrant for Richey's arrest on charges of dealing in methamphetamine when they approached her home. Trooper Taylor, who stood outside Richey's house on the wooden platform porch, uneventfully handcuffed Richey as she stood in the doorway of her house during the execution of an arrest warrant. He testified that it was unsafe to execute the arrest warrant outside the home in the dark of night on an elevated, wooden platform porch. Richey was taller than he was and others inside the home could launch an attack on him and the other officers. They moved inside after Richey told him there was another person in the house.

[14] Taylor testified that during the course of his training, he was instructed to avoid lingering in what he described as “the fatal funnel,” to move to a more secure area for officer safety, and to make sure that everyone inside the premises is secured. Tr. Vol. 2, p. 29. This strategy reduced the risk of officers remaining where they would be vulnerable to an attack by others while executing an arrest warrant. Once in the house, he had to move from the vestibule or fatal funnel into a more open area. He then found a woman, the friend Richey told him was inside, in the living room area. She had placed baggies of drugs in the waistline of her pants and other drugs were visible in plain view. And officers learned that yet another person was located in a bedroom in the home where more evidence of criminal activity was visible.

[15] We conclude that the protective sweep of Richey's home did not violate the Fourth Amendment.

B. Indiana Constitution

[16] Article 1, section 11 of the Indiana Constitution, provides as follows:

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.

“Although Indiana's Section 11, and the Federal Fourth Amendment are textually identical, they are analytically distinct.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). Unlike Fourth Amendment analysis, which turns on the whether the subject has a reasonable expectation of privacy, “Section 11 analysis turns on whether the police conduct was reasonable under the totality of the circumstances.” Id. at 1002.

[17] “The State bears the burden to show the intrusion was reasonable.” Id. “When we evaluate the reasonableness of the officers’ actions, 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.’ ” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

[18] Here, the officers arrived at Richey's home to serve a warrant for her arrest on drug-related charges. When Richey opened the door, the officers smelled the odor of marijuana coming from her home. Although misdemeanor offenses have been described as “minor,” see Lange v. California, 594 U.S. 295, 306 (2021); Nance, 216 N.E.3d at 478, possession of marijuana remains illegal in Indiana. See Ind. Code § 35-48-4-11 (2018). Thus, as Richey concedes, the degree of suspicion that a violation was occurring was high. See Appellant's Br. pp. 16-17.

[19] Next, the degree of intrusion was low. Richey opened the door when Trooper Taylor knocked, and Taylor had the authority to step inside to protect his and the other officers’ safety while executing the arrest warrant. Trooper Taylor immediately saw a woman sitting in the living room when he entered the kitchen. When he walked over to collect her identification, he saw a bong and an open Tang container on the floor next to her in which there were bags of a crystal substance which looked like methamphetamine. And their illegal nature was immediately apparent to him.

[20] And Trooper Taylor testified that they needed to protect themselves from an attack from inside the house. The officers were there to arrest Richey on drug-dealing charges and Richey admitted there was at least one other person inside the house.

[21] Therefore, based on an examination of the Litchfield factors, we conclude that the search and seizure did not violate state constitutional protections. Consequently, the trial court did not err when it admitted the evidence discovered in plain view during the protective sweep.

II. Appropriateness of Sentence

[22] Richey asserts that her sentence is inappropriate in light of the nature of the offense and her character. Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind. Ct. App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Id.; see also Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (confirming that while reviewing courts must consider both factors, defendant need not necessarily prove sentence is inappropriate on both counts). Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind. Ct. App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).

[23] Our Supreme Court has long said that sentencing is “ ‘principally a discretionary function in which the trial court's judgment should receive considerable deference.’ ” Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails unless overcome by “ ‘compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).’ ” Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind. Ct. App. 2020), trans. denied.

[24] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017). Judgment of conviction was entered against Richey on a count of Level 2 felony dealing in methamphetamine and a count of Class C misdemeanor possession of paraphernalia in addition to her habitual offender status.

[25] The penalty for the commission of a Level 2 felony is a sentence within the range of ten and thirty years with the advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5 (2014). And the penalty for a person found to be an habitual offender and convicted of a Level 2 felony is a sentence enhancement within the range of eight and twenty years. Ind. Code § 35-50-2-8(i)(1) (2023). Richey received a sentence of twenty-five years for her Level 2 felony conviction with a fifteen-year enhancement for her status as an habitual offender. The trial court merged Richey's conviction for her Level 3 felony with her Level 2 felony conviction and did not enter a sentence. The penalty for the commission of a Class C misdemeanor is a sentence of not more than sixty days. Ind. Code § 35-50-3-4 (1978). Richey was sentenced to a term of sixty days to be served concurrently with her sentence for her Level 2 felony conviction. Richey's sentence is ten years less than the maximum sentence the court could have imposed.

[26] Richey possessed around 29.1 grams of methamphetamine, which was divided into separate bags. This amount is nearly three times the amount required to convict her of dealing in methamphetamine. See Ind. Code § 35-48-4-1.1(a)(2) (2017) (ten grams). The Tang canister found in her living room area contained baggies totaling 59.46 grams of another substance which appeared to be methamphetamine, although it was not tested. And Richey possessed a bong used to smoke methamphetamine. This sentence is not an outlier given our prior opinion holding that possession of over twice the amount required for the offense and possession of paraphernalia supported a twenty-five-year sentence for Level 2 felony dealing in methamphetamine. See Young v. State, 244 N.E.3d 950, 965 (Ind. Ct. App. 2024), trans. denied.

[27] As for Richey's character, the court did find Richey's difficult childhood was a mitigating circumstance. However, the court found Richey's criminal history to be a weightier aggravating circumstance. “Even a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020). Richey's criminal history reflects convictions for aiding burglary, possession of methamphetamine, possession of a legend drug, and dealing in methamphetamine. Additionally, she has three arrests for possession of marijuana, three arrests for Class D felony maintaining a common nuisance, disorderly conduct, intimidation, possession of cocaine, two arrests for possession of paraphernalia, two arrests for possession of methamphetamine, disorderly conduct, and dealing in methamphetamine. To summarize, she was arrested or convicted of a crime every year from 2003 to 2008. And despite these numerous contacts with the judicial system, she has failed to reform her life.

[28] We conclude that Richey has not met her burden of persuading us that her sentence is in need of revision.

Conclusion

[29] In light of the foregoing, we affirm the trial court's judgment.

[30] Affirmed.

Baker, Senior Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.