Cox v. State, 1-978A248

• Decision Date: 30 July 1979
• Docket Number: No. 1-978A248,1-978A248
• Parties: Michael COX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 496

392 N.E.2d 496

181 Ind.App. 476

Michael COX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 1-978A248.

Court of Appeals of Indiana, First District.

July 30, 1979.

Rehearing Denied Sept. 4, 1979.

John M. Blevins, Blevins, Carroll & Schrock, Anderson, for appellant-defendant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

LYBROOK, Judge.

Defendant-appellant Michael J. Cox was found guilty of Uttering a Forged Instrument, fined $500, and sentenced to be imprisoned for not less than two nor more than fourteen years.

Evidence introduced at trial included a check drawn on the account of Mrs. Ruth Heaton for $11,000 and a deposit slip crediting Cox's account with $11,000.

Cox presents the following issue for our review:

Whether the trial court erred in permitting the state to introduce into evidence the check and deposit slip over Cox's objection that they were obtained in violation of his rights secured by the Fourth Amendment to the Constitution of the United States and Art. I, § 11 of the Constitution of Indiana.

We affirm.

The pertinent facts of this case are as follows:

While investigating the death of Mrs. Heaton, the Anderson police learned from Cox that she had given Cox a check the day before she died. When the police discovered that the amount of the check involved was $11,000, they asked the First National Bank to give them the check, made out to the First National Bank on Mrs. Heaton's account with the Anderson Banking Company, and the deposit slip crediting Cox's First National Bank account. The bank complied with the request and turned the check and the deposit slip over to the police.

Cox alleges that his rights against illegal searches and seizures were violated when the State obtained the evidence without going through the "existing legal process."

We find that Cox lacks standing to challenge the validity of the obtaining of the check and the deposit slip by the police from the bank.

In Leonard v. State, (1968) 249 Ind. 361, 232 N.E.2d 882, our Supreme Court noted that a bank has lawful possession of bank records, and once the appellant no longer has possession of the documents, he cannot claim an illegal search and seizure by police, since protection against unlawful search and seizure is a personal privilege. Similarly our Supreme Court recently underscored the need for meeting standing requirements in order to assert illegal search and seizure claims in Pollard v. State, (1979) Ind., 388 N.E.2d 496, 502, by quoting Rakas v. Illinois, (1978) 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, which stated:

" 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections."

The case of United States v. Miller, (1976) 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71, is very much like the case at bar. In Miller, copies of checks, deposit slips and other bank records were obtained through Subpoenas duces tecum which the defendant claimed were defective. He alleged that the subsequent seizure of the documents was illegal. His motion to suppress the evidence was denied and he was convicted. On appeal, the Fifth Circuit Court of Appeals reversed, deciding that the bank records were in a "zone of privacy" protected by the Fourth Amendment. The United States Supreme Court reversed the Court of Appeals, discussing several factors that apply to the case at bar. The court said that the checks and deposit slips were the business records of...