Deckard v. State, 1-1280A354
| Decision Date | 08 September 1981 |
| Docket Number | No. 1-1280A354,1-1280A354 |
| Citation | 425 N.E.2d 256 |
| Parties | James N. DECKARD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, for appellant.
Linley E. Pearson, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellee.
James N. Deckard (Deckard) appeals his convictions of possession of marijuana, a Class A misdemeanor, and maintaining a common nuisance, a Class D felony. Deckard was tried by a jury and found guilty of both counts.
We reverse and remand.
The underlying facts in this case establish that Joey Moore (Moore), a minor, was temporarily residing at Deckard's house trailer because he had been evicted from his apartment. Moore had previously signed a "4th Amendment Waiver of Rights as Condition to Probation" in an informal delinquency determination. Moore's mother, as well as his probation officer, were present when Moore signed the document, but it was not signed by Moore's mother. The waiver of a juvenile's rights is authorized by Ind.Code 31-6-7-3. Moore's waiver was limited to searches for intoxicating liquor and controlled substances.
Moore was suspected of stealing a gun from a Crawfordsville residence. Armed with Moore's waiver, the police went to Deckard's trailer. They knocked on the door and asked if Moore was present. Moore's girl friend answered the door and told the officers that Moore was not there. She attempted to close the door, but the police forced their way inside where they found Moore. The police then proceeded to search the entire trailer, including the separate bedroom of Deckard. The police testified they smelled marijuana emanating from the trailer when they were at the door. Upon searching the trailer, the police found marijuana and paraphenalia.
Because we reverse, we need only to discuss whether the waiver document was ineffective; and if the document was effective, whether it would only be effective against Moore and not Deckard.
The waiver executed by Joey Moore was defective and did not comply with the requirements of IC 31-6-7-3. This section, in relevant part, provides:
Waiver of rights. (a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:
(1) By counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or
(2) By the child's custodial parent, guardian, custodian, or guardian ad litem if;
(A) That person knowingly and voluntarily waives the rights;
(B) That person has no interest adverse to the child;
(C) Meaningful consultation has occurred between that person and the child; and
(D) The child knowingly and voluntarily joins with the waiver.
The above...
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