Belvedere v. State
| Citation | 875 N.E.2d 352 |
| Decision Date | 23 October 2007 |
| Docket Number | No. 48A05-0611-CR-669.,48A05-0611-CR-669. |
| Parties | Ralph BELVEDERE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Christopher A. Cage, Anderson, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Ralph Belvedere appeals his convictions for Possession of Marijuana With Intent to Deal, as a Class C felony, and Maintaining a Common Nuisance, a Class D felony, following a jury trial. Belvedere raises three issues for our review, which we restate as:
1. Whether our Supreme Court's recent decision in Litchfield v. State, 824 N.E.2d 356 (Ind.2005), applies and prohibits the introduction of evidence at trial that was obtained following a police search of Belvedere's trash.
2. Whether the good faith doctrine can be applied to that trash search.
We reverse.
On May 18, 2004, Anderson Police Department Detective Kevin Earley "was contacted by a source" regarding "a [white male] by the name of Ralph" at 2807 Morton Street and 2807½ Morton Street in Anderson. Def. Exh. C at 3-4. The two addresses were located on a single piece of property. The 2807½ Morton Street address, an upstairs apartment, was accessed from the rear of the house at 2807 Morton Street. A mobile home was also on that property. The source told Detective Earley that he or she "ha[d] been in the [apartment] approximately two days before ... and saw two pounds of marijuana," id. at 4, 6-7, although the source "believed that the house was vacant," id. at 6. The source also stated that he or she, "within the last few months, saw up to ten pounds of marijuana" at the apartment. Id.
On May 19, 2004, Detective Earley placed "[s]urveillance on the house and also conducted a trash pull." Id. Detective Earley Id. Detective Earley also found mail in that trash addressed to Ralph Belvedere at 2807½ Morton Street.
Detective Earley then inquired with the local utilities company regarding the addresses. He was informed that the 2807 Morton Street address was likely vacant, although the 2807½ address seemed occupied. Detective Earley also confirmed Belvedere's identity at that location after he performed a license check on a truck parked in the property's driveway.
On May 20, Earley requested and received a search warrant for the house and the apartment based on "the source's tips ..., the trash pull ..., the utility records, [and] the license checks." Id. at 8. That same day, police executed the warrant and found five people inside the apartment, including Belvedere. The officers recognized the smell of burning marijuana and, after finding a container filled with marijuana in the apartment, officers arrested Belvedere.
On June 10, 2004, the State charged Belvedere with possession of marijuana with intent to deal, as a Class C felony, and maintaining a common nuisance, a Class D felony. Prior to trial, Belvedere moved to suppress the evidence police seized from his trash and the evidence seized from his apartment pursuant to the warrant. The trial court denied Belvedere's motion, and, during his trial, Belvedere objected to the introduction of "any observations or evidence collected" as a result of both the trash pull and the resulting search of his apartment. Transcript at 184, 191. The court overruled Belvedere's objections. The State presented no other evidence against Belvedere, and, on July 14, 2006, the jury convicted him as charged. The trial court then sentenced Belvedere to a total of six years probation. This appeal ensued.
Belvedere contends that the trial court erred when it permitted the introduction of evidence seized from Detective Earley's trash pull and the subsequent warrant that was issued on the basis of evidence found in that trash pull. As Belvedere is challenging the admission of evidence following his conviction rather than in an interlocutory appeal, the issue is whether the trial court abused its discretion by admitting the evidence at trial. Bentley v. State, 846 N.E.2d 300, 304 (Ind.Ct.App.2006), trans. denied. A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Id. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id.
As an initial matter, the issues Belvedere raises on appeal, and the State's responses, revolve around the proper law to be applied to Detective Earley's May 2004 trash search. At the time of that search, Article I, Section 11 of the Indiana Constitution1 allowed police to search trash indiscriminately, so long as the manner of the search was reasonable. See Moran v. State, 644 N.E.2d 536, 541 (Ind. 1994). However, on March 24, 2005, subsequent to Detective Earley's trash search but before Belvedere's case became final, our Supreme Court announced Litchfield. In Litchfield, our Supreme Court changed Indiana's constitutional jurisprudence, holding in relevant part that "a requirement of articulable individualized suspicion, essentially the same as is required for a `Terry stop' of an automobile," imposes the appropriate constitutional standard in trash searches. Litchfield, 824 N.E.2d at 364.
Thus, on appeal Belvedere maintains that Litchfield must apply retroactively and without exception. On the other hand, the State contends that Litchfield does not apply retroactively or, in the alternative, that an exception applies to Detective Earley's search. The latter issue, in particular, has led to a diversity of opinions from this court. We address each argument in turn.
Belvedere first maintains Detective Earley's search was unconstitutional under Litchfield. The State responds by arguing that "pre-Litchfield law still governs this case." Appellee's Brief at 8. We must agree with Belvedere.
As our Supreme Court has held, "[i]t is firmly established that[] `a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past.'" Smylie v. State, 823 N.E.2d 679, 687 (Ind.2005) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). In Griffith, the Supreme Court of the United States reached that holding by reasoning, in part, that it "hardly comports with the ideal of administration of justice with an even hand[ ] when one chance beneficiary — the lucky individual whose case was chosen as the occasion for announcing the new principle — enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine." Griffith, 479 U.S. at 327, 107 S.Ct. 708 (quotations omitted). Both Griffith and Smylie involved the retroactive application of a new rule of federal constitutional law.
Similarly, our Supreme Court has held that a new rule of evidence applies retroactively to all criminal prosecutions in which that issue was "properly preserved ... [and the case was] pending on direct appeal" at the time the new rule was announced. Pirnat v. State, 607 N.E.2d 973, 974 (Ind.1993). In so holding, our Supreme Court determined that those defendants should "receive the benefit of review under the new rule for the basic reason that they ought not be penalized merely because we chose another pending case as the vehicle for announcing the change." Id.
The State maintains that our Supreme Court's declaration in Smylie is not applicable here because "[b]oth Griffith and Smylie were concerned with the application of a new rule of federal criminal procedure ... [and not] a state constitutional issue." Appellee's Brief at 8-9. We recognize that our Supreme Court has not explicitly stated whether it believes the Griffith retroactivity rule should apply to new rules of criminal procedure developed under the Indiana Constitution. Nonetheless, our Supreme Court has recognized, for the same reasons as the Griffith Court, a nearly identical rule for the retroactive application of new rules of evidence. We see no reason why the retroactivity standard applicable to a new rule of Indiana constitutional law should be any different than the retroactive application of a new Indiana rule of evidence. See, e.g., Turner v. State, 843 N.E.2d 937, 943 n. 2 (Ind.Ct. App.2006).
In the specific context of the retroactive application of Litchfield, our Supreme Court has consistently, albeit without discussion of retroactivity, applied Litchfield to cases not yet final when Litchfield was decided. See, e.g., Holder v. State, 847 N.E.2d 930, 940-41 (Ind.2006) (); Trimble v. State, 842 N.E.2d 798, 803-04 (Ind.2006) (same for February 2003 search); Myers v. State, 839 N.E.2d 1146, 1152-54 (Ind.2005) (same for March 14, 2002, search). This court has done the same. See, e.g., Richardson v. State, 848 N.E.2d 1097, 1105 (Ind.Ct.App.2006), trans. denied; State v. Harmon, 846 N.E.2d 1056, 1059-60 (Ind.Ct.App.2006), trans. denied; Turner, 843 N.E.2d at 943 n. 2; Edwards v. State, 832 N.E.2d 1072, 1077 (Ind.Ct.App.2005); Crook v. State, 827 N.E.2d 643, 646 (Ind.Ct.App.2005).2
Thus, Litchfield applies to all cases "pending on direct review or not yet final, with no exception," at the...
To continue reading
Request your trial
- Konger v. Schillace
-
Belvedere v. State, 48S05-0806-CR-370.
...the trash pull, citing Litchfield. The trial court denied the motion to suppress, but the Court of Appeals reversed. Belvedere v. State, 875 N.E.2d 352 (Ind.Ct.App.2007). The Court of Appeals held that Litchfield governed this search, the search was unconstitutional under Litchfield, and ne......