theindianalawyer.com on 4/27/2016 by Scott Roberts
A man who was visiting a friend when police found him in possession of a handgun was not a victim of an illegal search, the Indiana Court of Appeals ruled Wednesday.
Andrew Shotts stopped by his friend’s house as the home was being searched for heroin and evidence of drug trafficking. After a couple of requests, Shotts stopped walking, and the officer spun him around and handcuffed him. The officer asked Shotts what was in his pocket and he said his gun.
Shotts was charged with Class B felony unlawful possession of a firearm by a serious violent felon and Class B misdemeanor visiting a common nuisance. The misdemeanor charge was later dropped. Shotts filed a motion to suppress evidence found on his person because he claimed it was gained during an illegal search, but the trial court denied the motion and found him guilty of the felony charge. Shotts appealed.
Shotts argued under the United States Supreme Court decision Michigan v. Summers, 452 U.S. 692 (1981) that he was not an occupant of the house at the time and thus was not subject to search. The COA said determining whether or not Shotts was a resident would diminish the utility of the bright-line rule, which is meant to keep an officer from having to make an ad hoc decision. Requiring officers to determine whether Shotts was a resident would do that, so the COA determined occupant means anyone who is in the immediate vicinity of the premises may be detained to be searched at the time the search is executed.
Shotts also raised several issues with his sentence. First, Shotts was sentenced to 180 days for visiting a common nuisance even though that charge was dropped. The COA remanded that sentence to the trial court for dismissal.
He also claimed the trial court relied in improper factors in enhancing his sentence, including mentioning his Indiana Risk Assessment Score. However, the COA said there was no evidence that when the trial court said Shotts was high risk they were referring to his score at all. Also the court was justified in using this score to decide in what manner Shotts should serve his sentence. There was also no evidence the court used Shotts’ 2009 robbery conviction to enhance his sentence.
Finally, Shotts’ sentence of 18 years with 12 executed at the Department of Correction, two executed in community corrections and four suspended was not inappropriate. His long criminal history more than justified going above the minimum requirement, the judges held.
The case is Andrew Shotts v. State of Indiana, 49A04-1509-CR-1347.