Conviction upheld in Elkhart synthetic drug case

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A northern Indiana man arrested during a traffic stop could not convince the Indiana Court of Appeals on Monday that there was insufficient evidence to support his handgun- and drug-related convictions.

During a 2016 traffic stop, an Elkhart Sheriff’s Department officer noticed the strong smell of chemicals coming from a vehicle’s driver’s window that he recognized to be a synthetic drug. After both of the vehicle’s occupants were asked to step outside, officers searched the vehicle and discovered synthetic drugs in the door panel and center console.

A backpack also was found on the driver’s side floor full of men’s personal items, mail addressed to Kurtis Shorter, a semiautomatic pistol, a digital scale, marijuana and more synthetic drugs. As a result, the passenger, Shorter, was later charged with Level 4 felony unlawful possession of a handgun by a serious violent felon, Class A misdemeanor possession of a synthetic drug and Class B misdemeanor possession of marijuana. The state also alleged him to be a habitual offender, which Shorter moved to dismiss alongside his motion to suppress any items seized from the vehicle.

The Elkhart Superior Court denied both motions and following a retrial, Shorter was found guilty of all counts and determined by the jury to be a habitual offender. It sentenced him to an aggregate 30 years behind bars, which Shorter appealed in Kurtis L. Shorter v. State of Indiana, 18A-CR-02957.

In affirming Shorter’s convictions, an appellate panel first concluded that the trial court did not abuse its discretion in admitting the evidence recovered after the traffic stop. It specifically rejected Shorter’s assertion that the traffic stop was invalid, finding that the stop was justified under both the federal and Indiana Constitutions because the evidence established that the officer initiated a valid traffic stop after observing Shorter failed to signal a turn.

Next, the appellate court found the officer did not lack probable cause to search the vehicle when the officer smelled an odor he recognized as a burned synthetic drug.

“Specifically, (Shorter) argues that smelling a chemical smell is ‘insufficient to establish probable cause to conduct a search because there are an unlimited number of completely legal substances that would also emit a chemical odor.’ Considering the facts of this case, we cannot agree,” wrote Chief Judge Cale Bradford.

“The record demonstrates that Officer (Robert) Smith was both trained and experienced in identifying illegal drugs, including burnt synthetic drugs, and we agree with the trial court’s determination that in light of his training and experience, Officer Smith was qualified to identify the smell of burnt synthetic drugs,” the appellate panel wrote. Thus, the search was not in violation of the Fourth Amendment or Article 1, Section 11, of the Indiana Constitution, the panel concluded.

It further disagreed with Shorter’s assertion that the state’s evidence was insufficient to sustain his convictions “as it relies solely on speculation.” Rather, the appellate court concluded that the evidence was sufficient to prove that Shorter had constructive possession of the firearm, synthetic drugs, and marijuana.

Lastly, the panel found Shorter’s case was functionally indistinguishable from Shepherd v. State, 985 N.E.2d 362 (Ind. Ct. App. 2013), noting that the serious violent felon conviction and the habitual-offender enhancement “were based on unrelated predicate felonies.” As such, it concluded the trial court did not err in finding that Shorter could be found as both a serious violent felon and a habitual offender and that the trial court did not err in denying Shorter’s motion to dismiss the habitual-offender enhancement.

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