ILNews

Stepson’s testimony, cell phone search invalidate stepdad’s drug conviction

Dave Stafford
September 24, 2012
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A man’s conviction on a drug dealing conspiracy charge was reversed Monday when an appeals court panel ruled that a Marion County court erred in admitting testimony and evidence about text messages from the defendant’s stepson.

In Gregory Kirk v. State of Indiana 49A02-1110-CR-979, the court found that the admission of 16-year-old stepson D.K.’s statements to an Indianapolis Metropolitan Police Department officer was harmless to three of Kirk’s convictions, but not to a conviction of conspiracy to commit dealing in a controlled substance.

In a jury trial, Kirk was convicted of conspiracy to commit dealing in cocaine as a Class B felony, conspiracy to commit dealing in a controlled substance as a Class B felony, neglect of a dependent as a Class C felony, and possession of marijuana as a Class A misdemeanor.

On appeal, Kirk argued that the court abused its discretion in admitting incriminating statements that D.K. made to police and in admitting evidence gathered during a warrantless search of Kirk’s cell phone.

The Indiana Court of Appeals found that D.K.’s statements to police constituted damaging hearsay, and that a warrantless police search of Kirk’s cell phone after he was arrested for neglect of a dependent and public intoxication went too far.

“There was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages,” Judge James Kirsch wrote for the unanimous panel. “The state attempts to justify the search of the cell phone under the Indiana Constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.”

The court found that police testimony connected to text messages they saw on Kirk’s phone was the only evidence that proved Kirk conspired to sell controlled substances.

“We therefore reverse Kirk’s conviction as to the count of conspiracy to commit dealing in a controlled substance and remand to the trial court so that his sentence may be changed accordingly,” Kirsch wrote.

Kirk unsuccessfully argued that a search warrant that turned up drugs in his home should not have been admitted. The appeals court found no error in allowing the search and resulting evidence.



 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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