Green v. State
| Decision Date | 30 January 1996 |
| Docket Number | No. 56A03-9603-CR-95,56A03-9603-CR-95 |
| Citation | 676 N.E.2d 755 |
| Parties | Doren W. GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
The defendant, Doren W. Green ("Green"), brings this interlocutory appeal based on the trial court's denial of his motion to suppress. We accept jurisdiction pursuant to Ind.Appellate Rule 4(B)(6) and we affirm.
The facts most favorable to the judgment indicate that on September 26, 1995, a hearing was held to determine whether probable cause existed for the search of Green's photography studio and his apartment. William Cothran ("Cothran"), an investigator for the Newton County Prosecutor's Office, testified that relatives of Robert Smith ("Smith") submitted a box to the prosecutor's office which contained photographs and a letter. The photographs were of Smith and his girlfriend, Donna Riley ("Riley"), engaged in various sexual acts with Riley's daughter, who was then under fourteen years of age. The box also contained a letter that Smith had written to Riley indicating Smith's involvement with the girl and the possibility of monetary gain being made from the illicit photographs. Smith indicated in the letter that Green was willing and able to purchase the photographs and that Green knew the girl was under age.
Detective Krueger ("Krueger") of the Indiana State Police testified that Loma Green ("Loma"), Green's mother, had contacted Trooper Franko of the Indiana State Police and showed him photographs that had come through Green's studio to be processed. These photographs included enlargements of some of the pornographic photos which were found in Smith's residence. Krueger indicated that he had interviewed the girl and she indicated that in June of 1995, she had engaged in sexual intercourse and oral intercourse with Smith in the presence of her mother and that she had also engaged in oral intercourse with her mother. The girl indicated that several of the photographs were of her performing various sexual acts.
Testimony presented at Green's probable cause hearing indicated that earlier that day, police searched Smith's home and recovered property which included several video tapes, developed and undeveloped film and several packets of information pertaining to Green's photo studio with negatives in those packets. One of the envelopes recovered by police contained seven packs of photographs and negatives which appeared to be processed by Green's studio, "Portraits by Doren," some of which were pornographic depictions of the girl.
The prosecutor's office requested that the court find probable cause for a search warrant for Green's studio and apartment as well as an arrest warrant on the charge of child exploitation. Judge Daniel J. Molter found probable cause for both and issued a search warrant authorizing the search of Green's photography studio and his apartment located above the studio. The search warrant authorized a search for and a seizure of "all film, photos, photographs, pictures, videos, movies, negatives, undeveloped film or any pictorial representation that depict or describe sexual conduct by a child who is less than 16 years of age, or appears to be less than 16 years of age." (R. 13).
The search warrant was executed in the evening hours of September 26, 1995, but police failed to find any materials depicting minors engaged in sexual activities. However, a locked safe was found in the darkroom of Green's studio. Green was asked to open the safe but he indicated that his parents owned it and that he was unable to open it. After Green's mother stated she did not have the combination, Green then indicated that the safe belonged to his father who was out of town. The safe was removed from the studio, transported to a service station, and arrangements were made to have a locksmith open it.
On September 27, 1995, police requested another search warrant to search the safe, which was granted by Judge Molter. The safe did not contain any items listed in the original search warrant but police did find a plastic bag containing marijuana.
Green was charged with possession of marijuana, a class A misdemeanor. 1 He filed a motion to quash the search warrant and the items seized, which was denied. On February 27, 1996, the trial court certified for interlocutory appeal the issue of the trial court's denial of Green's motion to quash. On March 21, 1996, Green filed a timely petition for interlocutory appeal.
In August 1996, Smith's mother, Arletta Smith ("Arletta") testified at Green's trial in a companion case that on September 26, 1995, she went with her son and daughter to the courthouse. Arletta's son saw Judge Molter in the hallway and started showing him some of the photographs taken from Smith. Arletta and her son and daughter ("the Smiths") were taken to a jury room where Mr. Barce, the deputy prosecuting attorney, was called in to talk with the Smiths. Arletta thought that the investigator (Cothran) and a probation officer were also present. 2
On August 16, 1996, Green filed a petition to amend his brief based on a new issue brought about by Arletta's testimony and subsequently filed a petition to supplement the record of proceedings, both of which were granted by this court.
Green presents two issues on interlocutory appeal which we restate as follows:
I. Whether the search of the safe removed from Green's studio constituted an invalid search and seizure.
II. Whether the search warrant was constitutionally invalid because the issuing judge, Judge Molter, was not neutral and detached.
To protect a citizen's right to be free from unreasonable searches and seizures, our state and federal constitutions require officials to obtain a warrant before conducting searches and seizures. Hewell v. State, 471 N.E.2d 1235, 1238 (Ind.Ct.App.1984), reh'g denied, trans. denied; U.S. CONST. amend. IV; IND. CONST., art. I, § 11. A warrant may not issue unless an affidavit is submitted to a judge or magistrate, describing with particularity the place to be searched and the items to be seized. Id.; IND.CODE § 35-33-5-2. This particularity requirement restricts the scope of the search authorizing seizure of only those things described in the warrant. This is necessary because a warrant which leaves the executing officer with discretion is invalid. Id. "The warrant requirement commands that an agent of the government obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property, except under special circumstances fitting within 'certain carefully drawn and well-delineated exceptions.' " Jones v. State, 655 N.E.2d 49, 54 (Ind.1995), reh'g denied (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514-15, 19 L.Ed.2d 576 (1967) ).
Green contends that the scope of the search did not extend to the safe because the safe was not listed in the warrant and did not fall within one of the well-delineated exceptions. The state offers United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), to support the proposition that a warrant to search a premises extends to the entire area in which the object of the search may be found. We first note that Ross involved the issue of whether police officers, who had legitimately stopped an automobile and had probable cause to believe contraband was concealed somewhere within it, could conduct a probing search of compartments and containers within the vehicle whose contents were not in plain view. Even though Ross involved the warrantless search of an automobile, we find the Court's discussion of the lawful search of a fixed premises instructive.
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. [footnote omitted] Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
Id. at 820-21, 102 S.Ct. at 2170-71.
Green does not direct this court to, and we cannot locate, any Indiana case which specifically involved the execution of a search warrant which resulted in the removal and subsequent search of a safe which was not specifically listed in the warrant. However, we find the reasoning of the two federal cases offered by the state to be applicable.
In United States v. Wright, 704 F.2d 420 (8th Cir.1983), police searched the defendant's residence pursuant to a warrant authorizing the search for various drugs. During the search, police discovered a locked safe. Although the defendant was not present, his roommate informed police that the safe belonged to the defendant. Police were placing the safe in the trunk of the police car when they observed the defendant drive by the area. They stopped the defendant, who agreed to open the safe after police told him that they would force it open if he refused to cooperate. After his conviction for drug possession, the defendant appealed, arguing that the district court erred in denying his motion to suppress the drugs found in the safe. The eighth district court held that the warrant...
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