ILNews

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

Dave Stafford
September 24, 2012
Back to TopCommentsE-mailPrintBookmark and Share

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.



 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT