Attorney for Appellant Attorneys for Appellee
Ritchie Halsema Steve Carter
Thomas J. OBrien Attorney General of Indiana
OBrien & Dekker
Lafayette, Indiana Monika Prekopa Talbot
Deputy Attorney General
Attorney for Appellant Indianapolis, Indiana
Frank L. Halsema
Phillip R. Smith
Helmerick & Smith
Appeal from the Tippecanoe Superior Court, Nos.79D01-0109-CF-89 and 79D01-0109-CF-92
The Honorable Donald C. Johnson, Judge
On Petition To Transfer from the Indiana Court of Appeals
Nos. 79A04-0207-CR-316 and 79A02-0207-CR-545
March 9, 2005
Other officers arrived on the scene. When asked to identify himself, the
passenger of the car said that his name was Lonnie Halsema. He
was later identified as Frank Halsema. As one of the officers was
giving Frank Halsema a citation for not wearing a seat belt, he saw
on the passenger side of the car a clear plastic bag containing a
green leafy substance. Suspecting the substance was marijuana, the officer placed Frank
The officers then searched the car and found throughout a large quantity of
individually wrapped bags of what later was identified as methamphetamine and a number
of pills later identified as schedule II controlled substances. In the trunk
of the car, the officers found a set of digital scales and various
drug paraphernalia. Both Frank and Ritchie stipulated at trial that the total
amount of methamphetamine found in the car was 112 grams.
The following day officers went to 1216 Shenandoah Drive, which is located within
1000 feet of a school, and spoke with Juliet Whiteley. Also present
was Whiteleys three-year-old daughter and a man by the name of Roger Ferguson.
Whiteley informed the officers that she leased the premises, that Ritchie was
a friend, that he had been staying in the house for the past
five to seven days, and that he slept in her bedroom while she
slept on a couch downstairs. Whiteley signed a written consent form giving
the officers permission to search the residence. During the search, officers confiscated
methamphetamine from both Whiteley and Ferguson. They also seized a quantity of
methamphetamine from a dresser drawer in the bedroom where Ritchie had been staying.
The drawer also contained a black organizer bearing Ritchies name, along with
documents also bearing his name.
The State charged Ritchie Halsema with dealing in methamphetamine, a Class A felony;
possession of methamphetamine within 1000 feet of a school, a Class A felony;
conspiracy to commit dealing in methamphetamine, a Class A felony; possession of a
schedule II controlled substance, a Class D felony; maintaining a common nuisance, a
Class D felony; operating a motor vehicle as an habitual traffic offender, a
Class D felony; possession of marijuana, a Class A misdemeanor; and reckless possession
of paraphernalia, a Class A misdemeanor. Ritchie was also alleged to be
an habitual substance o
The State charged Frank Halsema with dealing in methamphetamine, a Class A felony;
possession of methamphetamine within 1000 feet of a school, a Class A felony;
conspiracy to commit dealing in methamphetamine, a Class A felony; maintaining a common
nuisance, a Class D felony; possession of marijuana, a Class A misdemeanor; reckless
possession of paraphernalia, a Class A misdemeanor; and false informing, a Class A
misdemeanor. Frank also was alleged to be an habitual substance offender.
After a trial by jury in which the Halsemas appeared as co-defendants, Ritchie
Halsema was found guilty as charged. He thereafter admitted to being an
habitual substance offender. Frank Halsema was found guilty of possession of methamphetamine
within 1000 feet of a school, possession of marijuana, reckless possession of paraphernalia,
and false informing. He was acquitted of the remaining charges. Frank
Halsema also admitted to being an habitual substance offender. The trial court
imposed forty-year concurrent sentences on Ritchie Halsemas two Class A felony convictions, imposed
various concurrent terms of years for the remaining convictions, and enhanced the sentence
by five years for the habitual offender adjudication for a total executed term
of forty-five years. As for Frank Halsema, the trial court imposed a
forty-year sentence for the Class A felony conviction, imposed various concurrent terms of
years for the remaining convictions, enhanced the sentence by five years for the
habitual offender adjudication, and suspended six months to probation for a total ex
term of forty-four years and six months.
The Halsemas pursued separate appeals. Frank Halsema raised three issues: (1) whether
there was sufficient evidence to support his convictions for possession of marijuana and
reckless possession of paraphernalia; (2) whether there was sufficient evidence that he possessed
at least three grams of methamphetamine within 1000 feet of a school; and
(3) whether the jurys verdict finding him guilty of possession of methamphetamine, possession
of marijuana, reckless possession of paraphernalia, and false informing was inconsistent. The
panel reviewing the appeal affirmed the convictions. Ritchie Halsema raised two issues
on appeal: (1) whether Juliet Whiteley had the authority to give consent to
search a dresser drawer containing his personal effects; and (2) whether there was
icient evidence that he possessed at least three grams of methamphetamine within 1000
feet of a school. Ritchie Halsema did not challenge his other convictions.
Finding it unnecessary to reach the first issue, the panel reviewing this
appeal reversed Ritchie Halsemas conviction for possession of methamphetamine within 1000 feet of
Frank Halsema petitioned to transfer his case and the State petitioned to transfer
Ritchie Halsemas case. Having previously granted both petitions, we now address whether
there was sufficient evidence to demonstrate that the weight of the drugs was
at least three grams. Finding there was not sufficient evidence, we reverse
the Halsemas convictions for possession of methamphetamine within 1000 feet of a school
as Class A felonies. In Frank Halsemas case we summarily affirm the
remainder of the Court of Appeals opinion. As for Ritchie Halsema, we
also address whether the trial court erred by admitting into evidence the methamphetamine
seized from the dresser drawer.
In the instant case the weight of the drugs is an essential element
of the offense. That is so because possession of methamphetamine in excess
of three grams within 1000 feet of a school enhances the offense from
a Class D felony to a Class A felony. As with any
other essential element, it must be proven by the State beyond a reasonable
See Hutcherson v. State, 381 N.E.2d 877, 881 (Ind. Ct. App.
1978) (reversing conviction for possession of over ten grams of a controlled substance
where State failed to prove weight, an essential element), trans. denied.
It is certainly true that when determining whether an element exists, the jury
may rely on its collective common sense and knowledge acquired through everyday experiences.
See 12 Robert Lowell Miller, Jr., Indiana Evidence § 201.101 (1995) ([J]urors
are instructed to use their own knowledge, experience and common sense in weighing
evidence . . . .); 27 Charles A. Wright & Victor J. Gold,
Federal Practice & Procedure § 6075, at 450 (1990) (Obviously, no juror can
or should approach deliberations with an entirely clean cognitive slate. Humans can
make intelligent decisions only by drawing upon their accumulated background knowledge and experience.
Jurors are not only permitted to make decisions in this manner, it
is expected of them[.]); see also Sullivan v. State, 517 N.E.2d 1251, 1253
(Ind. Ct. App. 1988) (noting that based upon common sense and experience gained
from everyday living the jury could reasonably conclude that defendants blood-alcohol level was
higher at the time he was driving than it was at the time
he was tested), trans. denied.
However, a jurors ability to determine the existence of a fact in issue
based on his or her common sense and experience is not unlimited.
Although our research has revealed no Indiana authority on point, we find instructive
a North Carolina case in which a defendants conviction for felonious possession of
marijuana was reversed where the State introduced no evidence of weight. The
Court observed, The jury may not find the existence of a fact based
solely on its in-court observations where the jury does not possess the requisite
knowledge or expertise necessary to infer the fact from the evidence as reflected
in the record.
North Carolina v. Mitchell, 442 S.E.2d 24, 28 (N.C.
1994). This seems to us an eminently sensible observation. As applicable
here, we are not persuaded that the weight of a given quantity of
drugs, especially when expressed in a metric unit of measurement, is a matter
of general knowledge and expertise. Rather, as the Mitchell court observed with
respect to marijuana, [t]his is a matter familiar only to those who regularly
use or deal in the substance, who are engaged in enforcing the laws
against it, or who have developed an acute ability to assess the weight
of objects down to the ounce. The average juror does not fall
into any of these categories. Id. We agree.
This is not to say there are no circumstances under which a jury
could reasonably conclude, based on in-court observation, that certain drugs or controlled substances
satisfy a weight requirement. Rather, we hold that in order to prove
the element of weight of drugs or controlled substances, the State must either
offer evidence of its actual, measured weight or demonstrate that the quantity of
the drugs or controlled substances is so large as to permit a reasonable
inference that the element of weight has been established.
The record shows that the methamphetamine seized from the car was submitted to
the Indiana State Police Laboratory for analysis. The written report, which was
stipulated into evidence, shows a combined weight of 112.08 grams.
not apparent from the record or explained by the State, the methamphetamine seized
from the residence was not submitted to the Laboratory. The only thing
the record tells us about the quantity of the drugs seized from the
residence is found in the following exchange:
[Deputy Prosecutor]: I think I already asked you this but to clarify it, other than the methamphetamine found on Juliet Whiteley . . . and Roger Ferguson . . . [and] the methamphetamine found [in the bedroom dresser drawer], was there any other methamphetamine found in Shenandoah Drive 1216 on September the 16th?
[Officer Harris]: Not to my knowledge.
[Deputy Prosecutor]: Well let me ask you this, was there any significant amount of methamphetamine found inside 1216 as - -
[Officer Harris]: No.
[Deputy Prosecutor]: - - compared to the - - to the hundred and twelve grams - -
[Officer Harris]: No, nothing close to that.
[Deputy Prosecutor]: - - found in the vehicle that Ritchie Halsema was driving with Frank Halsema?
Appellants App. at 247-48.
The State introduced into evidence eight exhibits of clear plastic baggies identified as
containing methamphetamine. Some of the exhibits contained multiple smaller baggies of methamphetamine.
Included in the eight exhibits was Exhibit # 30, the methamphetamine seized
from the bedroom dresser drawer. It is not among the exhibits containing
multiple baggies. Although the laboratory marked and labeled the individually packaged drugs, ranging
in weight from less than .01 grams to 55.63 grams,
see supra, n.2,
the State made no effort to correlate the laboratory results with the trial
exhibits. Further, the record provides no description of the drugs other than
methamphetamine in a baggie. As a result, there is no reference point
to determine whether the methamphetamine seized from the bedroom dresser drawer is similar
in size, weight or density to the individually packaged methamphetamine analyzed and weighed
by the Laboratory.
Seizing on an observation made by the Court of Appeals in Frank Halsemas case the State for the first time now emphasizes certain testimony given by Juliet Whiteley. According to Whiteley, the night before the arrest the Halsemas were present at her home cuttin[g] up crystal meth and they were cuttin[g] up bags puttin[g] it in bags and wrappin[g] ties around it. Appellants App. at 289. Whiteley testified that the methamphetamine was a chunk about the size of a charcoal. Id. at 292. According to the State this testimony supports a conviction of possession of more than three grams of methamphetamine within 1000 feet of a school. Br. in Support of Pet. to Transfer at 5.
First, it is not at all clear to us just exactly what role
the testimony about this alleged charcoal-sized chunk of drugs played in the States
theory of this case. The State made no mention of it in
its closing argument to the jury, nor did it mention the testimony in
its brief before the Court of Appeals. In any event, regardless of
whatever purposes this testimony may have served, only the methamphetamine seized from the
bedroom dresser drawer provided the basis for the charge that the Halsemas possessed
at least three grams of methamphetamine within 1000 feet of a school.
And the record is clear that in comparison to the drugs found in
the car, the amount of drugs found at the residence, including the drugs
seized from Whiteley and Ferguson, was not significant.
At the end of the day the record in this case simply does not support the view that the quantity of methamphetamine seized from the bedroom dresser drawer was so large that the jury could infer that it weighed at least three grams. Accordingly, we reverse the Halsemas convictions for possession of methamphetamine as Class A felonies.
In the case of Frank Halsema we remand this cause to the trial
court with instructions to impose sentence for possession of methamphetamine within 1000 feet
of a school as a Class B felony.
See I.C. § 35-48-4-6(b)(2)
(West Supp. 2004) (possession of less than three grams within 1000 feet of
school property is a Class B felony). However, as explained in more
detail below, remand for imposition of a lesser-class offense is not appropriate in
the case of Ritchie Halsema.
Before the Court of Appeals, Ritchie Halsema argued that the trial court erred by admitting into evidence over his objection the methamphetamine seized from the residence. See footnote More specifically, Ritchie Halsema complained that the seizure was the product of Whiteleys consent to search, which he contended Whiteley had no authority to give. Because the Court of Appeals reversed the conviction on other grounds, it did not reach this issue. We do so now.
Generally, a search warrant is a prerequisite to a constitutionally proper search and
Perry v. State, 638 N.E.2d 1236, 1240 (Ind. 1994). In
cases involving a warrantless search the State bears the burden of proving an
exception to the warrant requirement. Short v. State, 443 N.E.2d 298, 303
(Ind. 1982). A valid consent is such an exception. Joyner v.
State, 736 N.E.2d 232, 242 (Ind. 2000). This includes consent given by
a third party having common authority or a sufficient relationship to the premises
to be searched. Perry, 638 N.E.2d at 1240-41.
Krise v. State, 746 N.E.2d 957 (Ind. 2001) the defendant shared a
house with a roommate. The roommate consented to a general search of
the house, which ultimately led to the discovery and search of the defendants
purse. That search, in turn, revealed marijuana and a white powdery substance
later identified as methamphetamine. After a careful and exhaustive review of what
we characterized as the twists and turns of Fourth Amendment law with respect
to warrantless searches, id. at 961, this Court ultimately reversed the defendants conviction
of possession of a controlled substance within 1000 feet of a public park
on the ground that the defendants roommate lacked authority to consent to a
warrantless search of the defendants purse. We held the inspection of closed
containers that normally hold highly personal items requires the consent of the owner
or a third party who has authorityactual or apparentto give consent to the
search of the container itself. Id. at 969. Acknowledging that we
had previously addressed cases involving third-party consent searches of a shared home and
its contents, we noted, none of these cases dealt with a third-partys authority
to consent to search something like a purse, i.e., a closed container that
normally holds highly personal items, located within the home. Id. at 968
(emphasis in original).
The dresser drawer in this case is analogous to the purse in Krisea closed container normally holding highly personal items. The record is clear that Ritchie Halsema did not give officers consent to search the drawer. Thus the question is whether Whiteley, as a third party, had the actual or apparent authority to give consent. Actual authority requires a showing that there is a sufficient relationship to or mutual use of the property by persons generally having joint access or control for most purposes. Id. at 967 (internal quotation omitted). As for apparent authority, a search is lawful if the facts available to the officer at the time would warrant a man of reasonable caution in the belief that the consenting party had authority over the premises. Id.
In this case, in a hearing outside the presence of the jury for the express purpose of determining what authority if any Whiteley had to give consent, the following exchange occurred:
[Defense Counsel]: [I]ts my understanding that according to your testimony that Ritch had been staying at your house the past several days?
[Defense Counsel]: Is that correct?
[Defense Counsel]: Okay. And up in the he slept actually in your bedroom?
[Defense Counsel]: Okay. And in your bedroom there was a dresser, correct?
[Defense Counsel]: Okay. And that dresser you gave them you cleared out some drawers for him and said these are your drawers?
[Whiteley]: Yes, I did.
[Defense Counsel]: And those drawers that were gonna be for him exclusively?
[Defense Counsel]: I think that you also you testified it was you didnt know what he kept in there, you didnt go in those drawers, that those were his?
[Whiteley]: Thats correct.
[Defense Counsel]: When the police officers came over to search that night, you told them those were Ritchies drawers?
[Defense Counsel]: Okay. And the ones there in the dresser in the bedroom, those are Ritchies?
Appellants App. at 220-21. Because Ritchie Halsema enjoyed the exclusive use of at least one of the dresser drawers in Whiteleys bedroom and because Whiteley specifically advised the officers of that fact, Whiteley did not have actual authority to consent to a search of the drawer where the methamphetamine was found, nor could an officer reasonably believe that she had such authority. In sum, the record here shows that Whiteley had neither the apparent nor actual authority to consent to a search of the dresser drawer. Thus the warrantless search of the drawer without Ritchie Halsemas consent violated his Fourth Amendment right against unreasonable search and seizure. The trial court erred by admitting the seized drugs into evidence. Accordingly Ritchie Halsemas conviction for possession of methamphetamine within 1000 feet of a school must be vacated. Ritchie Halsemas remaining convictions and sentences, including his forty-year sentence for dealing in methamphetamine, a Class A felony, are affirmed.
Juliet Whiteley gave the police permission to conduct a search of a bureau
she owned in her home -- a bureau she used and shared with
Ritchie Halsema. (As she might well have said, Ill use these drawers,
Ritchie, you use that one.) As for whether her permission was good
enough for Fourth Amendment purposes, I am reminded of what Justice Thurgood Marshall
wrote when a defendant claimed his cousin could not give permission to search
the duffel bag they shared, each using separate compartments to store their stuff:
We will not, however, engage in such metaphysical subtleties in judging the efficacy
of [the cousins] consent. Frazier v. Cupp, 394 U.S. 731, 740 (1969).
I think Ms. Whiteleys consent was sufficient, largely on the basis that
a unanimous U.S. Supreme Court found the cousins permission adequate.
An individuals consent to a search of his or her residence is effective
for searches of the common areas but not always for searches of closed
objects inside the home.
Consent to search a container is effective only
when given by one with "common authority over or other sufficient relationship to
the premises or effects sought to be inspected." United States v. Matlock, 415
U.S. 164, 171 (1974).
See also United States v. Karo, 468 U.S.
705, 725 (1984); Krise v. State, 746 N.E.2d 957, 967 (Ind. 2001).
Common authority rests on mutual use of the property by persons generally having
joint access or control for most purposes. . . Matlock, 415 U.S.
at 171, n.7.
Juliet Whiteley enjoyed use, access, and control of the dresser in the bedroom,
and she thus had actual authority to consent to a search of the
dresser. Whiteley was the sole lessee of the residence in which the
dresser drawer containing Ritchies methamphetamine sat. Prior to the search, Ritchie was
merely a guest of five to seven days. He stored his belongings
in the top dresser drawer in Whiteleys bedroom, which is also where he
Whiteley had the right to eject Ritchie and his belongings, and retain the
dresser, at a moments notice. Whiteley continued to use the dresser and
store her belongings in other drawers. Her right to remove Ritchies belongings
from the top drawer did not cease upon granting him use of it.
When Ritchie decided to store his methamphetamine in a shared dresser, he
ssumed the risk that Whiteley would allow someone else to look inside.
Matlock, 415 U.S. at 171, n.7.
Our decision in Krise does not mandate suppressing Ritchies methamphetamine. The purse
in Krise and the dresser in this case are both closed containers normally
holding highly personal items. But the type of container searched is relevant
in a determination of whether there was a reasonable expectation of privacy in
the container, see United States v. Jacobsen, 466 U.S. 109, 120 n.17 (1984),
and also whether a third party had apparent authority to consent to a
search. See United States v. Basinski, 226 F.3d 829, 834 (7th Cir.
2000). The relevant inquiry here is whether the third party giving consent
to the search had actual authority to do so.
The purse searched in Krise quite obviously belonged to a female, and the
male roommate who consented to the search never had mutual use, joint access
to, or control over the purse. We had little trouble concluding the
male roommate had no actual authority over a purse he did not use,
access, or control. Krise, 746 N.E.2d at 971. Our conclusion in
Krise flows from facts about ownership of the container that, if anything, suggest
that the trial court got it right in the present case.
I thus join the Courts decision concerning Frank Halsema, but dissent from the
decision to vacate Ritchie Halsemas conviction for possession of methamphetamine.
Dickson, J., joins.