Kenneth Lee Neville, Jr. v. State of Indiana (mem. dec.)
49A02-1606-CR-1447
| Ind. Ct. App. | Jul 25, 2017Background
- On Oct. 23, 2014, an IMPD detective surveilling a homicide suspect followed a Lincoln whose temporary plate was covered with a tinted plate cover and stopped it at a gas station.
- Kenneth Neville, Jr. was driving; neither he nor other adults in the car had driver’s licenses. Detective Ball handcuffed Neville, felt lumps in his groin, reached into his pants and removed packages later tested as heroin and doxylamine; a loaded handgun was found in the driver-side armrest and Neville’s DNA was on the gun.
- Neville was charged with (1) Level 3 dealing in a narcotic drug (1–5 g heroin) while in possession of a firearm; (2) Level 4 unlawful possession of a firearm by a serious violent felon (UPFSVF); (3) Level 5 possession of a narcotic drug; and (4) Class C misdemeanor operating without ever receiving a license; he was also adjudicated a habitual offender.
- Neville moved to suppress evidence from the traffic stop/search arguing Fourth Amendment and Indiana Constitution violations; the trial court denied suppression and the jury convicted on Counts I–IV. The trial court later vacated the UPFSVF conviction (and the lesser-included possession count) on double jeopardy/statutory-construction grounds.
- On appeal Neville challenged admissibility of the stop/search and sufficiency of evidence to prove intent to deliver; the State cross-appealed the vacatur of the UPFSVF conviction.
Issues
| Issue | State's Argument | Neville's Argument | Held |
|---|---|---|---|
| Validity of traffic stop | Stop lawful: tinted plate cover violated Ind. Code § 9-18-2-26, giving objective basis to stop despite pretext | Stop pretextual and officer not credible; plate was visible later and stop was to investigate third party | Stop was reasonable under Fourth Amendment and Article I, § 11; officer entitled to stop for obstructed plate |
| Lawfulness of searches (person and vehicle) | Search incident to arrest: probable cause existed (driving without license) and officer articulated he was arresting Neville; felt contraband in groin; search not unduly intrusive under Indiana Constitution | Search preceded arrest and was not justified; intrusion into groin area unreasonable under state constitution | Search was lawful as incident to arrest; under Indiana law search was not extreme or abusive and was reasonable under totality of circumstances |
| Sufficiency to convict of Level 3 dealing (intent to deliver) | Circumstantial evidence supported intent: >4 g heroin, cutting agent (doxylamine), $1,243 cash, handgun with defendant’s DNA; absence of user paraphernalia supports dealing inference | No direct proof of intent to deliver; lack of typical dealer tools (scales, baggies, ledgers) undermines inference | Evidence was sufficient for a reasonable jury to infer intent to deliver; conviction affirmed |
| Vacatur of UPFSVF conviction (double jeopardy/statutory construction) | State: UPFSVF conviction should stand | Neville: Vacatur proper because the firearm presence enhanced the dealing charge and punished same behavior twice | Trial court did not err to vacate UPFSVF conviction: enhancement for possession of firearm was based on the same behavior (handgun in vehicle) and vacatur avoided impermissible double punishment |
Key Cases Cited
- Guilmette v. State, 14 N.E.3d 38 (Ind. 2014) (standard of review for admissibility rulings and constitutional search questions)
- Quirk v. State, 842 N.E.2d 334 (Ind. 2006) (officer may stop vehicle for observed minor traffic violation)
- Mitchell v. State, 745 N.E.2d 775 (Ind. 2001) (pretextual stops valid where an objectively justifiable reason exists)
- Fentress v. State, 863 N.E.2d 420 (Ind. Ct. App. 2007) (probable cause standard for warrantless arrest incident to search)
- Calvert v. State, 930 N.E.2d 633 (Ind. Ct. App. 2010) (vacatur required where possession of firearm conviction and another conviction relied on the same act of constructive possession)
- Duncan v. State, 23 N.E.3d 805 (Ind. Ct. App. 2014) (double jeopardy principles prohibit punishment where enhancement is imposed for the same behavior that forms the basis of another conviction)