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Thursday, March 24, 2005

Ind. Decisions - Court of Appeals posts two today

Scott Holder v. State of Indiana (1/26/05 IndCtApp) [Criminal Law & Procedure]
[Initially NFP]
Kirsch, Judge

Scott S. Holder brings this interlocutory appeal of the trial court’s denial of his motion to suppress evidence discovered in a search of his home. He contends that the evidence is inadmissible because it was obtained in violation of Article 1, Section 11 of the Indiana Constitution. We restate the relevant issue as: whether police officers performing an investigation act reasonably when, without first obtaining a warrant, they enter onto an individual’s property and position themselves near house windows in order to ascertain the source of an odor. We reverse. * * *

Here, Bruner testified at the hearing on the motion to suppress that he walked up a driveway past Holder’s residence to the backyard area to investigate whether there were ether cans near the pick up truck parked behind Holder’s house. After getting no response at the neighbor’s home, he noticed that a basement window in Holder’s home was cracked. He testified that he knelt down and smelled at the window. However, he did not testify as to how he positioned himself to accomplish this, other than that he was on Holder’s property at the time. Thus, the State did not establish whether Bruner stayed on a pathway or traversed Holder’s lawn or landscaping to access the window. Moreover, the record does not establish how far the window was from the areas of Holder’s yard that the public could be expected to use, nor does it show how close to the window Bruner came when he smelled at it. In short, it is simply unclear from the record before us that Bruner’s actions were reasonable, i.e, that he stayed in the areas which Holder could reasonably expect visitors and members of the public to use. Because the State failed to meet its burden to prove that Bruner’s actions were reasonable when he positioned himself to smell the odor emanating from the basement window, it failed to demonstrate that the officer’s actions comported with Section 11. Accordingly, the evidence obtained from the search should have been suppressed. Reversed.

ROBB, J., concurs with separate opinion. * * * Judge Baker’s dissent evinces a strong concern regarding the threat posed by the manufacture, sale, and use of methamphetamine. I share this same concern, but I do not feel that the threat posed by methamphetamine justifies allowing police officers to wander around a neighborhood searching for the source of an ether odor. Nor does it justify police officers entering onto private property without a search warrant and sniffing at the cracks of an individual’s basement window. I therefore concur with Chief Judge Kirsch.

BAKER, J., dissents with separate opinion.I respectfully dissent and must part ways with the majority’s decision to reverse the denial of Holder’s motion to suppress. In my view, Officer Bruner’s initial entry onto the premises was lawful, as was the warrantless entry into the house in light of the exigent circumstances that existed here. * * *

Note: This decision originally was issued as Not for Publication pursuant to Rule 65(A), which provides that a Court of Appeals opinion shall be published if it: (1) establishes, modifies, or clarifies a rule of law; (2) criticizes existing law; or (3) involves a legal or factual issue of unique interest or substantial public importance.

Jan Beckom, et al. v. David Quigley (3/24/05 IndCtApp) [Trusts & Estates; Torts ]
Riley, Judge

* * * The Beckoms present two issues for our review. First, they argue that Quigley was negligent in his duty to the Beckoms, as third party beneficiaries, by failing to ensure that they received Gene’s estate. Second, they claim that Quigley fraudulently rejected the Beckoms’ beneficiary status in order to reap the financial benefits that would be awarded to him by the probate court in administering the Taylor High School and Purdue University trusts. * * *

Based on the foregoing, we find that as a matter of law, attorney Quigley did not owe a duty to the Beckoms because they were unknown third-party beneficiaries under a will. We further find that the Beckoms fail to state a redressable claim with respect to their allegation that Quigley fraudulently interfered with the inheritance in order to reap a personal financial benefit. Therefore, we hold that the trial court properly granted summary judgment as a matter of law in favor of Quigley. Affirmed.
CRONE, J., and ROBB, J., concur.

Posted by Marcia Oddi on March 24, 2005 01:51 PM
Posted to Ind. App.Ct. Decisions