Bradford, J.
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I. Admission of Evidence
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B. The Fourth Amendment
1. Warrantless Entry into Home
On appeal, Bradley claims that the warrantless entry into the home by the Detectives violated the Fourth Amendment to the United States Constitution. …
However, “‘[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.’” …
“Under the apparent authority doctrine, a search is lawful if the facts available to the officer at the time would cause a person of reasonable caution to believe that the consenting party had authority over the premises.” [Citations omitted.] … The State bears the burden of proving that the third party possessed the authority to consent. [Citation omitted.]
… Again, while conducting surveillance on the home on January 15, 2013, the Detectives watched Beatty approach the home and knock on the front door. Almost immediately after Beatty knocked on the front door, someone from inside the home opened the door so that Beatty could enter. The Detectives waited a few minutes after Beatty entered the home before approaching the home and knocking on the front door. After Detective McCoy knocked on the front door, Beatty opened the door.2 Detective McCoy identified himself and Detectives Campbell and Lomax, explained that they had come to the home because of a narcotics complaint, and requested permission for the Detectives to step inside the home. Beatty verbally consented to the Detectives’ entry into the home and stepped to the side to allow the Detectives to enter.
[Footnote 2:] We cannot agree with Bradley’s assertion that the fact that Beatty knocked on the door before entering the home was enough, in and of itself, to prove that Beatty did not have the apparent authority to consent to the Detectives’ entry into the home. As the State pointed out in its appellate brief, there could be any number of valid reasons why a resident of a home might knock before entering a home.
It is important to note that Beatty did not indicate that he did not reside at the home or was a guest at the home. Likewise, Beatty did not indicate that he could not consent to the Detectives’ entry. Instead, Beatty acted as though he had the authority to decide who could or could not enter the home.
In light of Beatty’s actions upon opening the door coupled with the Detectives’ prior observations, we conclude that a person of reasonable caution would have been warranted in believing that Beatty had authority over the home and, as a result, could consent to the Detectives’ entry into said home. The trial court reasonably determined that Beatty validly consented to the Detectives’ entry into the home. The Detectives’ warrantless entry into the home, therefore, did not violate the Fourth Amendment.
2. Protective Sweep of the Kitchen
Bradley further claims that even if Beatty did have the apparent authority to consent to the Detectives’ entry into the home, the evidence discovered in plain view during the Detectives’ protective sweep of the kitchen was not admissible because the Detectives’ protective sweep was unjustified. …
In … Cudworth v. State, 818 N.E.2d 133, 138 (Ind. Ct. App. 2004), a panel of this court concluded that officers could not complete a protective sweep of a home when they did not enter the resident incident to the defendant’s arrest. However, given the facts of the instant matter, we decline to follow this conclusion because we believe that it overlooks the need for officers who are lawfully in a home for reasons other than for effectuating an arrest, but have a legitimate concern for their safety, to take the steps necessary to ensure their safety while in the home.
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Upon entering the home, Detective McCoy asked Beatty if anyone else was in the home. Beatty responded that there was not. However, within seconds of Beatty indicating that there was no one else in the home, the Detectives observed a black male “peak [sic]” his head around the kitchen corner. Tr. p. 152. The black male retreated after seeing the Detectives. Because the Detectives could not see into the kitchen, Detective McCoy ordered the individual in the kitchen to come into the living room. The individual did not comply with Detective McCoy’s order. After the individual in the kitchen failed to comply with Detective McCoy’s order, Detectives McCoy and Lomax, out of concern for their and Detective Campbell’s safety, conducted the protective sweep of the kitchen.
The Detectives also had reason to be concerned that there may be weapons in a home in which believed drug activity occurred. …
Based on these circumstances, we believe it was reasonable for the Detectives to conduct a protective sweep of the kitchen. …
C. Article I, Section 11
1. Warrantless Entry into Home
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As we concluded above, Beatty had the apparent authority to and did, in fact, consent to the Detectives’ entry into the home. As such, because the focus of the exclusionary rule is the reasonableness of police conduct, we conclude that the Detectives’ reliance on Beatty’s consent was completely reasonable. [Citation omitted.] We therefore conclude that the Detectives’ entry into the home did not violate the Indiana Constitution’s prohibition against unreasonable search and seizure.
2. Protective Sweep of the Kitchen
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Despite Bradley’s claim to the contrary, we conclude that the Detectives’ protective sweep of the kitchen was reasonable under the totality of the circumstances. …
II. Double Jeopardy
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Bradley contends that his convictions for both Class A felony possession of cocaine and Class C felony possession of cocaine and a firearm violate the prohibitions against double jeopardy because the same cocaine was used to support both convictions. The State counters … that the Class A felony possession conviction is supported by the approximately thirty grams of cocaine that was recovered from Bradley’s person and the Class C felony possession conviction is supported by the “very small amount of cocaine,” tr. p. 181, that was found in plain sight on the kitchen counter.
In considering Bradley’s claim, we find it important that the State does not differentiate between the sources of cocaine in charging Bradley. The charging information for each count merely alleges that Bradley possessed cocaine. Moreover, the State did not differentiate between the cocaine recovered from Bradley’s person and the small amount of cocaine discovered in plain view during the Detective’s protective sweep of the home as being derived from separate independent sources during its arguments to the court. Rather, the State seems to have treated all of the cocaine as one large sum of cocaine.
In light of the State’s failure to differentiate between the alleged independent sources of cocaine in either the charging information or its argument before the trial court, we conclude that the cocaine recovered from Bradley’s person and the “very small amount of cocaine,” tr. p. 181, discovered in plain view during the Detectives’ protective sweep of the home must be treated as a single source of cocaine. As such, we conclude that Bradley’s conviction for Class C felony possession of cocaine and a firearm is barred by the prohibitions against double jeopardy because the same cocaine was used to support both that conviction and Bradley’s conviction for Class A felony possession of cocaine. [Citations omitted.]
Additionally, we note that the Indiana Supreme Court has previously concluded that “the crime of Class C felony possession of cocaine and a firearm is a lesser included offense” of Class A felony possession or dealing. Hardister v. State, 849 N.E.2d 563, 575 (Ind. 2006). Thus, considering the Indiana Supreme Court’s conclusion in Hardister coupled with our conclusion that the same cocaine was used to support both of the relevant convictions, we further conclude that Bradley’s conviction for Class C felony possession of cocaine and a firearm must therefore be vacated.
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May, J., and Crone, J., concur.
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I. Admission of Evidence
….
B. The Fourth Amendment
1. Warrantless Entry into Home
On appeal, Bradley claims that the warrantless entry into the home by the Detectives violated the Fourth Amendment to the United States Constitution. …
However, “‘[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.’” …
“Under the apparent authority doctrine, a search is lawful if the facts available to the officer at the time would cause a person of reasonable caution to believe that the consenting party had authority over the premises.” [Citations omitted.] … The State bears the burden of proving that the third party possessed the authority to consent. [Citation omitted.]
… Again, while conducting surveillance on the home on January 15, 2013, the Detectives watched Beatty approach the home and knock on the front door. Almost immediately after Beatty knocked on the front door, someone from inside the home opened the door so that Beatty could enter. The Detectives waited a few minutes after Beatty entered the home before approaching the home and knocking on the front door. After Detective McCoy knocked on the front door, Beatty opened the door.2 Detective McCoy identified himself and Detectives Campbell and Lomax, explained that they had come to the home because of a narcotics complaint, and requested permission for the Detectives to step inside the home. Beatty verbally consented to the Detectives’ entry into the home and stepped to the side to allow the Detectives to enter.
[Footnote 2:] We cannot agree with Bradley’s assertion that the fact that Beatty knocked on the door before entering the home was enough, in and of itself, to prove that Beatty did not have the apparent authority to consent to the Detectives’ entry into the home. As the State pointed out in its appellate brief, there could be any number of valid reasons why a resident of a home might knock before entering a home.
It is important to note that Beatty did not indicate that he did not reside at the home or was a guest at the home. Likewise, Beatty did not indicate that he could not consent to the Detectives’ entry. Instead, Beatty acted as though he had the authority to decide who could or could not enter the home.
In light of Beatty’s actions upon opening the door coupled with the Detectives’ prior observations, we conclude that a person of reasonable caution would have been warranted in believing that Beatty had authority over the home and, as a result, could consent to the Detectives’ entry into said home. The trial court reasonably determined that Beatty validly consented to the Detectives’ entry into the home. The Detectives’ warrantless entry into the home, therefore, did not violate the Fourth Amendment.
2. Protective Sweep of the Kitchen
Bradley further claims that even if Beatty did have the apparent authority to consent to the Detectives’ entry into the home, the evidence discovered in plain view during the Detectives’ protective sweep of the kitchen was not admissible because the Detectives’ protective sweep was unjustified. …
In … Cudworth v. State, 818 N.E.2d 133, 138 (Ind. Ct. App. 2004), a panel of this court concluded that officers could not complete a protective sweep of a home when they did not enter the resident incident to the defendant’s arrest. However, given the facts of the instant matter, we decline to follow this conclusion because we believe that it overlooks the need for officers who are lawfully in a home for reasons other than for effectuating an arrest, but have a legitimate concern for their safety, to take the steps necessary to ensure their safety while in the home.
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Upon entering the home, Detective McCoy asked Beatty if anyone else was in the home. Beatty responded that there was not. However, within seconds of Beatty indicating that there was no one else in the home, the Detectives observed a black male “peak [sic]” his head around the kitchen corner. Tr. p. 152. The black male retreated after seeing the Detectives. Because the Detectives could not see into the kitchen, Detective McCoy ordered the individual in the kitchen to come into the living room. The individual did not comply with Detective McCoy’s order. After the individual in the kitchen failed to comply with Detective McCoy’s order, Detectives McCoy and Lomax, out of concern for their and Detective Campbell’s safety, conducted the protective sweep of the kitchen.
The Detectives also had reason to be concerned that there may be weapons in a home in which believed drug activity occurred. …
Based on these circumstances, we believe it was reasonable for the Detectives to conduct a protective sweep of the kitchen. …
C. Article I, Section 11
1. Warrantless Entry into Home
….
As we concluded above, Beatty had the apparent authority to and did, in fact, consent to the Detectives’ entry into the home. As such, because the focus of the exclusionary rule is the reasonableness of police conduct, we conclude that the Detectives’ reliance on Beatty’s consent was completely reasonable. [Citation omitted.] We therefore conclude that the Detectives’ entry into the home did not violate the Indiana Constitution’s prohibition against unreasonable search and seizure.
2. Protective Sweep of the Kitchen
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Despite Bradley’s claim to the contrary, we conclude that the Detectives’ protective sweep of the kitchen was reasonable under the totality of the circumstances. …
II. Double Jeopardy
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Bradley contends that his convictions for both Class A felony possession of cocaine and Class C felony possession of cocaine and a firearm violate the prohibitions against double jeopardy because the same cocaine was used to support both convictions. The State counters … that the Class A felony possession conviction is supported by the approximately thirty grams of cocaine that was recovered from Bradley’s person and the Class C felony possession conviction is supported by the “very small amount of cocaine,” tr. p. 181, that was found in plain sight on the kitchen counter.
In considering Bradley’s claim, we find it important that the State does not differentiate between the sources of cocaine in charging Bradley. The charging information for each count merely alleges that Bradley possessed cocaine. Moreover, the State did not differentiate between the cocaine recovered from Bradley’s person and the small amount of cocaine discovered in plain view during the Detective’s protective sweep of the home as being derived from separate independent sources during its arguments to the court. Rather, the State seems to have treated all of the cocaine as one large sum of cocaine.
In light of the State’s failure to differentiate between the alleged independent sources of cocaine in either the charging information or its argument before the trial court, we conclude that the cocaine recovered from Bradley’s person and the “very small amount of cocaine,” tr. p. 181, discovered in plain view during the Detectives’ protective sweep of the home must be treated as a single source of cocaine. As such, we conclude that Bradley’s conviction for Class C felony possession of cocaine and a firearm is barred by the prohibitions against double jeopardy because the same cocaine was used to support both that conviction and Bradley’s conviction for Class A felony possession of cocaine. [Citations omitted.]
Additionally, we note that the Indiana Supreme Court has previously concluded that “the crime of Class C felony possession of cocaine and a firearm is a lesser included offense” of Class A felony possession or dealing. Hardister v. State, 849 N.E.2d 563, 575 (Ind. 2006). Thus, considering the Indiana Supreme Court’s conclusion in Hardister coupled with our conclusion that the same cocaine was used to support both of the relevant convictions, we further conclude that Bradley’s conviction for Class C felony possession of cocaine and a firearm must therefore be vacated.
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May, J., and Crone, J., concur.