Conn v. State

• Decision Date: 19 August 1986
• Docket Number: No. 4-1083A342,4-1083A342
• Citation: 496 N.E.2d 604
• Parties: Bill S. CONN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 604

496 N.E.2d 604

Bill S. CONN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-1083A342.

Court of Appeals of Indiana Fourth District.

Aug. 19, 1986.

John O. Worth and C. Jack Clarkson, Clarkson & Worth, Rushville, for appellant.

Linley E. Pearson, Atty. Gen., and Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Bill S. Conn appeals his convictions by jury of nine counts of receiving stolen property, a Class D felony under IND.CODE 35-43-4-2. These convictions followed an extensive search of Conn's residence, the legitimacy of which Conn challenges on appeal.

We reverse and remand.

Acting on information they received from confidential informant Michael Andresen, Franklin and Fayette County Sheriff's deputies procured a search warrant in Franklin County, authorizing a search of Conn's mobile home and an adjacent trailer used as a storage shed. The warrant specified nine items of stolen property police believed to be in Conn's possession, including a color portable 19" television, a large portable radio, a portable kerosene heater, a microwave oven, a Remington 12-gauge shotgun, two rifles, and two chainsaws.

Early on the morning of November 22, 1982, a contingent of fifteen to twenty officers from the state police and the Franklin and Fayette County Sheriff's departments, including "some reserve deputies that just had their trucks there to haul stuff out," assembled to execute the search warrant. Four trucks and a wrecker vehicle conveyed this gregarious search party to Conn's rural residence, which the officers searched for the ensuing four and a half to five hours. Their intensive search of Conn's mobile home and outbuildings quickly yielded the nine items specified in the warrant, all of which were large and readily discoverable. However, the search extended to closet shelves, beds, chair cushions, jewelry boxes, and a zippered suitcase. The executing officers seized some 254 items, including numerous firearms, cameras, jewelry, a truck and a tractor.

Two days later, the police returned with another search warrant and again seized a large inventory of property they believed to be stolen. Among many other items, the officers hauled away tool boxes, auto parts, and a Coleman stove on "a kind of hunch" they were stolen. The fruits of this second search were suppressed when the trial court deemed the warrant invalid on its face.

Police later determined some of the property seized in each of these searches was stolen; most of it was never identified as stolen property, however. State police apparently ignored a court order that they return to Conn property seized in the initial search.

In this appeal, Conn raises three issues regarding these searches and seizures:

1) whether the initial warrant inadequately described the place to be searched;

2) whether the trial court erred in admitting evidence seized during the search of his premises because police exceeded the scope of their authority under the warrant and conducted a general search in violation of the Fourth Amendment; and

3) whether the trial court erred in failing to enforce its order that the state return property seized in the course of these searches.

I.

Conn first challenges the validity of the initial search warrant, alleging its failure to describe the location of his property with sufficient specificity. Particularly, he complains that the text of the warrant omits any reference to the county and state in which his residence is located.

Conn correctly notes the constitutional requirements that a warrant must describe with particularity the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV; Ind. Const. art. 1, Sec. 11. A search warrant which vests the executing officer with discretion in these respects is void. Mann v. State (1979), 180 Ind.App. 510, 389 N.E.2d 352. The warrant before us, however, affords the defendant this constitutional protection.

Generally, a warrant sufficiently describes the place to be searched if the officer can with reasonable effort ascertain and identify the place intended. Steele v. United States (1925), 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Watts v. State (1982), Ind.App., 434 N.E.2d 891. The test is one of reasonableness; the Constitution does not require "elaborate specificity." United States v. Ventresca (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684; United States v. Freeman (7th Cir.1976), 532 F.2d 1098, 1100.

The warrant in this case incorporates the probable cause affidavit, which describes the place to be searched as follows:

All of the above mentioned items with the exception of the two chain saws are located in a mobile home occupied by William Conn on Smokey Hollow Road about one half mile north of Duck Creek Road. The William Conn residence is a mobile home with a room added onto the front of said mobile home and is the first place on the left on Smokey Hollow Road off of Duck Creek Road. The two chain saws are located in a vacant mobile home that is located right next to the above described property and is situated perpendicular to the William Conn residence described above.

Conn does not appear to complain as to the specificity of the actual description of the location of his property and indeed that description vests no discretion in the executing officer. The designation of Conn's residence as "the first place on the left on Smokey Hollow Road off of Duck Creek Road" and about one half mile north of Duck Creek Road is sufficiently particular, as it would not allow police to mistake that residence for any other, unlike the warrants involved in the cases upon which Conn relies.

Rather, Conn primarily argues that the affidavit as incorporated in the warrant does not set forth the state and county in its text as does the form for such an affidavit prescribed by statute, IND.CODE 35-33-5-2(b):

An affidavit for search substantially in the following form shall be deemed sufficient:

                STATE OF INDIANA  )
                                  )  SS
                COUNTY OF ______  )
                

A B swears (or affirms, as the case may be) that he believes and has good cause to believe (here set forth the facts and information constituting the probable cause) that (here describe the things to be searched for and the offense in relation thereto) are concealed in or about the (here describe the house or place) of C D, situated in the county of ______, in said state.

Subscribed and sworn to before me this __ day of ____, 19__.

He contends therefore that the warrant fails to comply with the form for search warrants prescribed by IC 35-33-5-3, and is unconstitutionally vague.

We do not believe this deviation from the statutory form amounts to substantial noncompliance with the statute such as would render the warrant invalid. The state and county appear twice on the face of the warrant, which also identifies the issuing judge as presiding in the Franklin Circuit Court. Under a reasonableness standard, one would logically infer that the place described in the warrant was located in Franklin County, Indiana, absent any indication to the contrary. Conn's argument speculating that police might go from county to county searching any and all residences located at other junctions of Smokey Hollow and Duck Creek Roads is without merit. We conclude the omission of which Conn complains creates no discretion in the execution of the warrant and is therefore not fatal to the validity of the warrant, which would enable the executing officer to ascertain with reasonable effort the precise location intended.

II.

Conn also contends the trial court erred in admitting evidence seized during the November 22 search of his premises. Specifically, he argues that the police exceeded the scope of their authority under the warrant and conducted a general search in violation of his constitutional protection against unreasonable search and seizure. U.S. Const. amend. IV; Ind. Const. art. 1, Sec. 11. His motion to suppress the evidence seized was denied, and the evidence was admitted over his objections at trial.

In determining whether an unreasonable search and seizure has occurred, we do not weigh the evidence. Rather, we examine the evidence most favorable to the ruling, together with any uncontradicted adverse evidence. Holt v. State (1985), Ind., 481 N.E.2d 1324, 1326; Lance v. State (1981), Ind., 425 N.E.2d 77, 78.

As previously mentioned, a search warrant must describe with particularity the items to be seized. U.S. Const. amend. IV; Ind. Const. art. 1, Sec. 11. General warrants, authorizing seizure of any and all items, are therefore proscribed by both the United States and Indiana Constitutions. Layman v. State (1980), Ind.App., 407 N.E.2d 259, 261-62.

Conn contends that because the search warrant named only nine specific items and police seized approximately 254 items, the search constituted a general search. The record reveals that the search warrant was issued on the evening of November 21. Instead of conducting the search immediately, the police waited until the next day. Fifteen law enforcement officers were present at the Conn residence, and the search lasted nearly five hours. Mrs. Conn testified the officers searched among other things, jewelry boxes and a zippered suitcase.

The state argues that the seizure of the 245 items not listed in the warrant was proper under the plain view doctrine established in Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120. The plain view doctrine:

Allows the police to seize items without a warrant if three requirements are met. First, the police officer must lawfully be in a place or position from which he can view the property seized. Id. Second, the items must be discovered inadvertently during the course of a valid search. Id. Finally, it must be immediately apparent to the officer upon discovery...