Bowles v. State

• Citation: 820 N.E.2d 739
• Decision Date: 14 January 2005
• Docket Number: No. 49A05-0402-CR-107.,49A05-0402-CR-107.
• Parties: Darius BOWLES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

820 N.E.2d 739

Darius BOWLES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0402-CR-107.

Court of Appeals of Indiana.

January 14, 2005.

David R. Hennessy, Indianapolis, IN, Attorney For Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys For Appellee.

OPINION

MATHIAS, Judge.

Darius Bowles ("Bowles") is charged with Class A felony dealing in cocaine, Class C felony possession of cocaine, Class C felony possession of cocaine and a firearm, Class D felony possession of a controlled substance, and Class A misdemeanor possession of marijuana in Marion Superior Court. He filed motions to suppress all evidence seized as a result of a search of his trash, and the subsequent search of his residence. The trial court denied his motions and he has filed this interlocutory appeal raising three issues, which we reorder and restate as:

I. Whether Bowles' trash was searched and seized in violation of Article One, Section Eleven of the Indiana Constitution;

II. Whether the search warrant for Bowles' residence is invalid because the police officer failed to file a probable cause affidavit with the magistrate before the search warrant issued; and

III. Whether the items found in Bowles' trash were sufficient to establish probable cause to issue a search warrant of his residence.

Concluding that the search and seizure of Bowles' trash was constitutional, and that the search warrant was valid and supported by probable cause, we affirm.

Facts and Procedural History

Prior to March 4, 2003, Indianapolis Police Detective Garth Schwomeyer ("Detective Schwomeyer") received information that Bowles was dealing cocaine from his residence, a condominium. On March 4, 2003, Detective Schwomeyer proceeded to Bowles' residence and observed that trash had been set out for collection. The trash was situated next to a common mailbox for the condominiums in the area and the mailbox was located near the end of Bowles' driveway. Detective Schwomeyer retrieved two trash bags from the trash cans.

Inside the bags, Detective Schwomeyer found marijuana seeds and stems, numerous plastic baggies with corners torn off, approximately twenty-five baggies that had been ripped open and contained a powdery cocaine residue, a piece of mail bearing Bowles' address, and a sales receipt bearing Bowles' name. Detective Schwomeyer believed that the baggies with the torn corners were consistent with the practice of packaging drugs for sale by using a corner of the baggie and discarding the remainder. Moreover, he believed that the discarded baggies with cocaine residue were consistent with the practice of purchasing powder cocaine and cooking it into crack cocaine.

On March 5, 2003, Detective Schwomeyer obtained a search warrant for Bowles' residence, however he did not leave a copy of the probable cause affidavit with the issuing magistrate and did not file it with the Marion County Clerk until March 6, 2003. The search of Bowles' residence was conducted on March 5th and officers found items including cocaine, marijuana, alprazolam, a glock 23 semi-automatic weapon, and a shotgun.

On March 6, 2003, Bowles was charged with Class A felony dealing in cocaine, Class C felony possession of cocaine, Class C felony possession of cocaine and a firearm, Class D felony possession of a controlled substance, and Class A misdemeanor possession of marijuana. On July 29, 2003, Bowles filed a motion to suppress the evidence seized as a result of the search of his residence, and on August 7, 2003, he filed a motion to suppress all evidence seized as a result of the trash search. His motions were denied on December 15, 2003. After his motion to reconsider was denied, Bowles moved to certify the trial court's order for interlocutory appeal, which the trial court granted. Our court accepted jurisdiction of this interlocutory appeal on March 29, 2004. Additional facts will be provided as necessary.

I. Trash Search

Bowles argues that his trash was searched and seized in violation of Article One, Section Eleven of the Indiana Constitution, and therefore, the trial court abused its discretion when it denied his motion to suppress. The 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. Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999). Additionally, a trial court's decision to deny a motion to suppress is reviewed in the same fashion as we review sufficiency of the evidence claims. Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. McClure v. State, 803 N.E.2d 210, 212-13 (Ind.Ct.App.2004), trans. denied. However, we must also consider any uncontested evidence favorable to the defendant. Id.

Article One, Section Eleven of the Indiana Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Article One, Section Eleven "must be liberally construed to protect Hoosiers from unreasonable police activity in private areas of their lives." State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002) (citing Brown v. State, 653 N.E.2d 77, 79 (Ind.1995)). "Rather than looking to federal requirements such as warrants and probable cause when evaluating Section Eleven claims, we place the burden on the State to show that under the totality of the circumstances its intrusion was reasonable." Id. (citing Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999)).

In Moran v. State, 644 N.E.2d 536, 541 (Ind.1994), our supreme court determined that the reasonableness of trash searches should be determined based on a totality of the circumstances. However, the court also recognized that "Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside." Id. Nevertheless, the court held that the search and seizure of the trash left at the curb in front of Moran's residence was reasonable. Id. The court observed that the police officers conducted themselves in the same manner as those who pick up the trash, that the officers did not disturb Moran or his neighbors, and that the officers did not trespass onto Moran's property. Id.

Our court reached the opposite result in State v. Stamper, 788 N.E.2d 862 (Ind.Ct.App.2003), trans. denied. In that case, an Indiana State Police Detective was conducting surveillance of Stamper's residence when he observed Stamper exit his residence with a garbage bag in his hand. Id. at 864. Stamper placed the garbage bag at the bottom of a garbage pile on his property near the end of his driveway. Id. A "No Trespassing" sign was posted on his property near the garbage pile. Id. Two hours later, the detective removed the garbage bag that Stamper placed at the bottom of the pile. To do so, the detective was required to enter Stamper's property because the garbage bag was located approximately ten feet from the street. Id. Our court also noted that Stamper's sister's fiance collected Stamper's garbage rather than a government-run collection service. Id.

Under such circumstances, our court determined that the search and seizure of Stamper's trash was unreasonable under Article One, Section Eleven because the detective trespassed on his property to retrieve the bag, which would not have been collected by a public trash collection service. Id. at 865. In reaching that conclusion, our court observed, "our supreme court and this court have held that coming onto the property was the benchmark. As long as the police did not have to enter the property, the search was considered reasonable." Id. at 865-66 (citing Moran, 644 N.E.2d at 541; Bell v. State, 626 N.E.2d 570, 572 (Ind.Ct.App.1993), trans. denied). We also rejected the State's argument that Stamper had no reasonable expectation of privacy in the garbage bag. Id. at 866 ("[W]e believe Stamper's expectation of privacy was reasonable. If we were to hold otherwise, police could search everyone's opaque garbage bags on their property without reason and thereby learn of their activities, associations, and beliefs.").¹ More recently, in Lovell v. State, 813 N.E.2d 393, 398 (Ind.Ct.App.2004),trans. denied, our court held that the search of the defendant's garbage bags was reasonable under the totality of the circumstances. In that case, when police officers arrived at Lovell's residence, they saw three garbage bags situated next to Lovell's mailbox. Id. Also, the officers observed that many of the residences nearby had trash next to their mailboxes. Id. The officers seized Lovell's garbage bags in a manner consistent with those whose duty it was to pick up the garbage bags for collection. Id. Moreover, there was no indication in the record that the officers trespassed on Lovell's property when they seized the garbage bags or that they disturbed her neighbors. Id.²

In this case, after discovering that trash was scheduled for collection on March 4, 2003 at Bowles' residence, Detective Schwomeyer proceeded to Bowles' residence on that date. When he arrived at Bowles' residence, a condominium Bowles rented, he observed that trash had been set out for collection. Tr. p. 8. The trash was situated next to a common mailbox for the condominiums in the area and the mailbox was located near the end of Bowles' driveway. Ex. Vol., State's Ex. 1 and 2. At the hearing on the motion to suppress, Detective Schwomeyer testified that he walked up to the mailbox as if he were checking his mail and picked up Bowles' trash without leaving the common area where the mailbox was situated. Tr. p....