Edwards v. State

Citation832 N.E.2d 1072
Decision Date17 August 2005
Docket NumberNo. 29A02-0501-CR-46.,29A02-0501-CR-46.
PartiesScott C. EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Todd A. Glickfield, Marion, for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Scott C. Edwards appeals from his conviction for possession of marijuana in an amount greater than thirty grams. He presents one issue for our review, whether the search warrant was supported by probable cause.

We affirm.

On January 28, 2003, Detective Sean Brady of the Hamilton County Sheriff's Department, based upon information relayed to him by Deputy Marland Sands, began surveillance of a residence in which he believed Edwards lived. The next day, upon driving past the residence, Detective Brady observed four trash bags which had been left near the street for trash collection. He contacted Detective David Kimm, who was working with the Hamilton County Drug Task Force, for assistance. Detective Kimm drove his pickup to the residence so that they could recover the trash bags and take them to the Fishers Police Department. While searching through the bags, Detectives Brady and Kimm found various items which they believed to be evidence of drug crimes, including balled up plastic wrap which contained marijuana particles, empty plastic wrap boxes, bubble wrap, and an empty tape roll. Based upon this evidence, Detective Brady was able to acquire a search warrant for the residence.1 In executing the warrant, Detective Brady and other officers found one fourth of a pound of marijuana in the garage, along with a digital scale and a heat sealer. Inside the master bedroom, the officers found almost $15,000 in cash in a woman's underwear drawer and more cash under the bed. Edwards was subsequently arrested and told Detective Brady that the marijuana belonged to him. Based upon this evidence, a jury found Edwards guilty of possession of marijuana as a Class D felony.

Before reaching the merits of Edwards' claim, we address an issue presented by the State. Although not argued before the trial court, the State asserts that Edwards does not have standing to challenge the search of the residence and garage. The State acknowledges that standing may not ordinarily be raised for the first time upon appeal. See Everroad v. State, 590 N.E.2d 567, 569 (Ind.1992). However, relying upon Ratliff v. State, 770 N.E.2d 807 (Ind.2002), the State asserts that this court may affirm the trial court's judgment on any theory supported by the record. The State's argument implies that we may affirm the admission of evidence because the facts below support the conclusion that Edwards did not have standing to challenge the search warrant as lacking probable cause.

With all due respect to the State's argument, we conclude that its reliance upon Ratliff is misplaced. In Ratliff, the defendant challenged the search of his vehicle at a police facility. The prosecution argued that the search was valid as an inventory search, a search incident to arrest, or a search under the automobile exception to the warrant requirement. The trial court concluded that the automobile exception applied and did not rule upon the other two grounds. Id. at 809. On interlocutory appeal, this court concluded that the automobile exception did not apply and remanded the case to determine whether the search was a proper inventory search. Id. Our Supreme Court granted transfer and acknowledged the principle that it would affirm the trial court if it could be done on any legal basis apparent in the record. Id. The Court then concluded that based upon the facts the search was a proper inventory of defendant's vehicle. Id. at 809-10.

In Ratliff, our Supreme Court reviewed a claim made to the trial court but which was not ruled upon by the trial court, i.e. whether the search was proper as an inventory search. The Court did not sua sponte raise the issue of an inventory search for the first time upon appeal. Rather, it only reviewed an argument presented to the trial court but not addressed because the trial court ruled the search was constitutional on other grounds. This was not an abandonment of precedent established by our Supreme Court several years prior—that in reviewing a claim of unlawful search and seizure, an appellate court should not sua sponte invoke lack of standing. See Everroad, 590 N.E.2d at 569. We conclude that the State may not successfully now challenge Edwards' standing to bring this claim.2

Turning to the merits of Edwards' claim, we are faced with a preliminary question presented to the trial court but not addressed in detail by the court, whether the search of Edwards' trash was constitutional. Since the briefs were filed in this case, our Supreme Court has issued its decision in Litchfield v. State, 824 N.E.2d 356 (Ind.2005). In that case, the Court held that it is not reasonable for law enforcement officials to search indiscriminately through people's trash.3 Id. at 363. In crafting a rule by which law enforcement officers may reasonably search trash, the Court established two main restrictions. The first is that in order for a search or seizure of trash to be reasonable, the trash must be retrieved in substantially the same manner as the trash collector would use. In other words, "[i]f garbage has been placed out for collection at the usual place for collection and is easily accessible to any member of the public, in the absence of a mistake, any claim to possessory ownership has been abandoned." Id. at 363-64. The second requirement is that the officer must possess a reasonable, articulable suspicion, "essentially the same as is required for a `Terry stop' of an automobile." Id. at 364.

In the case before us, there is no dispute that the trash was placed along the street for pickup by the trash collector. However, a question does exist as to whether the officers had reasonable suspicion to search the trash. If the officers did not have reasonable suspicion to search the trash, they could not have validly found the marijuana particles in the trash and could not have relied upon that evidence to establish probable cause for the search warrant of the residence and garage.

Any reasonable suspicion that the officers may have had that Edwards was involved in criminal activity would have originated with the information given to Detective Sands by the confidential informant and relayed to Detective Brady. In Johnson v. State, 659 N.E.2d 116 (Ind.1995), our Supreme Court addressed what must be shown in order for a police officer to have reasonable suspicion, based upon the tip of a confidential informant, to make an investigatory stop of an automobile.

In Johnson, the Evansville police had received a tip from a confidential, but not anonymous, informant that Johnson would be transporting narcotics in his car, a brown Jaguar, in a particular area of town. The Court noted that the tip did not provide any specifics which could be confirmed. Id. at 119. In fact, the information given by the informant was that which was easily knowable by the general public. Id. Moreover, the record did not provide any evidence that the informant was reliable. Id. Given that the informant was not a victim of a crime requesting the assistance of police, did not provide credible information on a specific impending crime, and the reliability of the informant was not established, the Court concluded that the tip lacked any indicia of reliability and was inadequate to support an investigatory stop. Id.

The record before us is much the same as that in Johnson. There was no tip that Edwards was going to commit a specific, impending crime.4 Nor did the tip provide information which could be corroborated by the police officers. Most importantly, the credibility of the confidential informant was never established at any time during the proceedings.5 Thus, because the tip was lacking in indicia of reliability and the credibility of the informant was not established, the tip was inadequate to support the reasonable suspicion necessary, under Litchfield, to search the trash.6

That being said, Indiana Code § 35-37-4-5 (Burns Code Ed. Repl.1998) states that a court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the law enforcement officer obtained the evidence in good faith. Subsection (b) of that statute states that evidence is obtained in good faith if it is obtained pursuant to a "state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated."

As previously noted, Litchfield had not been decided at the time this matter was before the trial court. Instead, a different test for the search of trash was being applied by our courts. In Moran v. State, 644 N.E.2d 536, 541 (Ind.1994), our Supreme Court determined that the constitutionality of a trash search should be determined based upon the reasonableness of the search. In so doing, the Moran Court recognized that the police officers did not trespass on the premises to get the bags, but collected them from an area about a foot from the street, next to the mailbox, where they had been left for pickup by the trash collector. Id. at 538, 541. Furthermore, the officers did not cause a disturbance because they conducted their activities early in the morning when they were unlikely to be seen. Id. at 541. Finally, they conducted themselves in the same manner as those whose duty it was to collect the trash. Id.

In Lovell v. State, 813 N.E.2d 393, 398 (Ind.Ct.App.2004), trans. denied, this court upheld the validity of a search of three trash bags by officers after reviewing the totality of the circumstances to determine the reasonableness of the trash search. The facts revealed that the bags had been placed next to the mailbox for collection. Moreover,...

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