« Ind. Courts - Results of the February 2009 Indiana Bar Exam | Main | Ind. Law - US News Law school rankings out (but not officially) »

Monday, April 20, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Bruce Scalambrino, et al v. Town of Michiana Shores, et al, an 18-page opinion, Judge Robb writes:

Bruce Scalambrino and the other town-resident plaintiffs appeal the trial court's entry of summary judgment on counts I through IV and VI of their second amended complaint in favor of Michiana Shores (“the Town”) and T-Mobile.1 Scalambrino raises a single issue for our review; whether the trial court erred when it entered summary judgment in favor of T-Mobile and the Town. Concluding that the Town validly authorized the site lease and amended its zoning ordinance and zoning map to allow for the construction of the cell tower, we affirm. * * *

Although the Town's initial attempt to authorize the site lease was invalid, the Town subsequently authorized the site lease pursuant to proper statutory procedures. In addition, the Town sufficiently complied with the notice requirements. Therefore, we hold the Town's authorization of the site lease is valid. * * *

Although Ordinance 2007-02 singles out cell towers and antennae for exception from the building height requirements, it does not single out a single piece of property for different treatment. The ordinance does not change the zoning solely for the purpose of constructing a cell tower. Rather, the ordinance creates a governmental district where the Town can consolidate governmental services and utilities.

Second, even assuming that Scalambrino is correct that the ordinances constitute spot zoning, his argument that the amendments do not bear a rational relation to the public health, safety, morals, convenience, or general welfare is unpersuasive. Improved cellular communications in the area has a direct, positive effect on the safety and convenience of the Town as well as the surrounding community. * * * The Town's decision to supplement its revenues by leasing municipal property is rationally related to improving the Town's general welfare. Therefore, we hold that Ordinances 2007-2 and 2007-3 are both procedurally and substantively valid.

Conclusion. The Town's authorization of the site lease through Resolution 2006-2 was valid as was its amendment of the zoning ordinance through Ordinances 2007-2 and 2007-3 to allow construction of the cell tower. Therefore, the trial court did not err when it granted summary judgment to the Town and T-Mobile on Counts I-IV and VI of Scalambrino's Second Amended Complaint. Affirmed.

In Brandi Hayworth v. State of Indiana (Brown Cir. Ct., Judge Stewart), a 26-page opinion, Judge Vaidik's "case summary" is nearly 2 pages long. From the conclusion:
We conclude that Detective Southerland‘s admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. * * * And when there is a material omission of fact, this amounts to deliberate, reckless, or grossly negligent conduct. Even the trial court said at the suppression hearing that Detective Southerland‘s affidavit made it seem like the informant had personally observed all of these things. Because the State did not follow up with Detective Southerland at the suppression hearing, we do not know from this record what, if anything, the informant personally observed. And as Hayworth points out in her reply brief, the State makes no effort on appeal to explain, reconcile, or justify the discrepancies between Detective Southerland‘s affidavit and what the informant actually told him.

In addition, we conclude that Detective Southerland‘s conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. Although, as the Herring Court said, the principal cost is "letting guilty and possibly dangerous defendants go free," 129 S. Ct. at 701, we find there is "appreciable" deterrence given the importance of a police officer‘s full and fair disclosure of all material facts when applying for a warrant and the material omissions of fact here. Id. at 700.

In sum, the State is the one urging us to apply the good faith exception, and there is simply nothing in the record to support its application. Accordingly, the State has failed to prove that the good faith exception applies, 16 and the evidence seized pursuant to the search warrant must be excluded. The trial court therefore erred in admitting the evidence.

Although we determined above that Hayworth waived her objection to some of this evidence by stating "No objection," we conclude that the admission of this evidence amounts to fundamental error. Given the misleading statements in Detective Southerland‘s affidavit and the police‘s utter lack of corroboration of the informant‘s statements of criminal activity, we find the error to be so prejudicial to the rights of Hayworth as to make a fair trial impossible.

In light of this holding, we do not need to reach Hayworth‘s other arguments on appeal. Reversed and remanded.

In Brian Montgomery v. State of Indiana , a 17-page opinion, Judge Robb writes:
Following a bench trial, Brian Montgomery was convicted of dealing in cocaine, a Class A felony. On appeal, Montgomery raises the issue of whether the trial court abused its discretion in admitting evidence obtained by police during a warrantless search of his motel room. Concluding that the police did not violate the Fourth Amendment of the United States Constitution or Article I, section 11 of the Indiana Constitution and, therefore, the trial court properly admitted the evidence, we affirm. * * *

Officers had reasonable grounds to believe an emergency was at hand, they were motivated primarily by the intent to give assistance, and Vargas's statements and the room keycard in her possession linked the hotel room to the possible emergency. Under the totality of the circumstances, we hold officers acted reasonably in entering the motel room.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert P. Journay, Jr. v. State of Indiana (NFP), an opinion by Judge Vaidik, is worthy of note because of footnote 2 on p. 2 of the 5 page opinion in an indecent exposure case:

In the argument section of his brief, Journay discusses an unpublished memorandum decision. We remind Journay’s counsel that memorandum decisions are not be cited as authority except by parties to the case to establish res judicata, collateral estoppel, or law of the case, none of which are applicable here. Ind. Appellate Rule 65(D).

Posted by Marcia Oddi on April 20, 2009 01:53 PM
Posted to Ind. App.Ct. Decisions