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Friday, June 27, 2008

Ind. Decisions - Supreme Court issues three opinions today re trash searches

In George Membres, III v. State of Indiana, a 23-page, 3-2 opinion in a case argued 4/17/07, Justice Boehm writes:

We hold that Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), does not apply retroactively because it established a new rule of state criminal procedure that does not affect the reliability of the fact-finding process. We also hold that the warrant in this case was supported by probable cause and was not overbroad. * * *

In March of 2005, Deputy Scott Wildauer of the Marion County Sheriff’s Department was involved in an ongoing investigation into possible drug trafficking at the residence of George Membres III. A confidential informant told Wildauer that he saw another drug dealer at Membres’s house and that he was “pretty sure” Membres was dealing “large quantities” of marijuana from his residence. * * *

Based on this information, on March 9, 2005, Wildauer seized the trash from the public area in front of Membres’s residence on a routine trash collection day. A search of the trash revealed twenty-five burnt ends of marijuana cigarettes, marijuana, four plastic baggies with corners missing, two empty packages of rolling papers, and mail addressed to Membres. Based on the evidence recovered from Membres’s trash, the State obtained a warrant to search Membres’s home for “[m]arijuana, controlled substances, U.S. Currency, papers, records, documents, com-puters, or any other documentation which indicates or tends to indicate a violation or a conspir-acy to violate the [Indiana Controlled] Substances Act, paraphernalia, scales, packing materials, and weapons.” A search produced $57,060 in cash, marijuana, rolling papers, paraphernalia, firearms, four Rolex watches and other jewelry, cell phones, and a number of documents. * * *

Membres contends that the search of his trash was unlawful under Litchfield, decided two weeks after the search. * * *

Litchfield “reshaped” the understanding of what constitutes a reasonable warrantless trash search.

Membres argues that because his case was not yet final at the time Litchfield was decided, Litchfield's new rule of criminal procedure applies retroactively to Wildauer’s search of his trash. The Court of Appeals did not discuss the retroactivity of Litchfield. Apparently assuming that retroactive application was proper, the court evaluated Membres’s trash search claim under the Litchfield standard and found that Wildauer did not have reasonable suspicion for the warrantless trash search. * * *

Neither the Supreme Court of the United States nor this Court has ever considered whether these general principles of retroactivity apply to the rule requiring exclusion of evidence that is the product of an unconstitutional search or seizure. * * *

Indiana search and seizure jurisprudence, like federal Fourth Amendment doctrine, identifies deterrence as the primary objective of the exclusionary rule. ... The rule announced in Litchfield is designed to deter random intrusions into the privacy of all citizens. Retroactive application of that rule would not advance its purpose for the obvious reason that deterrence can operate only prospectively. Exclusion of the fruit of a random search, although important in protecting Indiana citizens from unreasonable searches and seizures, does not in any way serve to avoid an unjust conviction. To the contrary, exclusion of relevant and otherwise admissible evidence can prevent conviction where reliable evidence supports it. Because there is this cost to enforcing the exclusionary rule, it should be done only where appropriate to advance its purpose. * * *

[B]ecause the evidence in search and seizure cases is usually inherently probative and reliable, we see no reason to exclude it categorically if the issue has not been raised before the new ruling, and the officers seizing the evidence operated under the rules this Court had announced at the time. * * *

Conclusion. The trial court’s denial of Membres’s motion to suppress and its grant of the State’s mo-tion for turnover order are affirmed.

Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., concurs in part and dissents in part with separate opinion.

[From Justice Sullivan's dissent] Our long-standing retroactivity rule dictates that new rules of criminal procedure apply to future trials and also to cases pending on direct appeal (or otherwise not yet final) where the issue was properly preserved in the trial court. * * *

Today the Court announces an exception to that retroactivity rule for cases involving warrantless searches of trash that implicate the new rule of Indiana Constitutional law announced in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). In such cases, the new rule applies only if the issue was raised in the trial court before the new rule was announced. * * *

We should not create an exception for Litchfield to our long-standing rule on retroactivity based on the incorrect propositions that Enlow is precedent or that deterrence is the only purpose of the exclusionary rule. I respectfully dissent.

[Justice Rucker's 6-page dissent begins:] I agree that the trial court correctly denied Membres’ motion to suppress. On this point I concur with the majority opinion. But the majority charts new territory to this Court’s longstanding jurisprudence on the question of retroactivity. I would adhere to established precedent and as a result apply Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), retroactively. On this issue I respectfully dissent.

Darius V. Bowles v. State of Indiana, decided 3-2 - "Accordingly, a Litchfield claim is unavailable to Bowles in this appeal."

Ralph Belvedere v. State of Indiana, decided 3-2 - "For the reasons explained in Membres v. State, No. 49S02-0701-CR-33, ___ N.E.2d ___, slip op. at 11 (Ind. June 27, 2008), also decided today, “challenges to pre-Litchfield searches that did not raise Litchfield-like claims in the trial court before Litchfield was decided are governed by pre-Litchfield doctrine.” Because Belvedere’s challenge to this pre-Litchfield search was first raised after Litchfield was decided, Litchfield is not available to him in this appeal."

Posted by Marcia Oddi on June 27, 2008 02:16 PM
Posted to Ind. Sup.Ct. Decisions