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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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