Herald v. State

• Decision Date: 29 July 1987
• Docket Number: No. 38A02-8610-CR-359,38A02-8610-CR-359
• Citation: 511 N.E.2d 5
• Parties: John W. HERALD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 5

511 N.E.2d 5

John W. HERALD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 38A02-8610-CR-359.

Court of Appeals of Indiana,

Second District.

July 29, 1987.

Rehearing Denied Oct. 30, 1987.

William D. Bright, Ludy & Bright, Portland, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SHIELDS, Presiding Judge.

Defendant-appellant John Herald appeals his convictions of burglary and theft.

We affirm.

At approximately 12:44 a.m. on September 3, 1985, the day following Labor Day, Officers Bruce Hosier and Robert Sours were patrolling the streets of Portland, IN, when they noticed a vehicle parked behind the library. The officers observed the vehicle was unlocked, the windows were down, and the keys were in the ignition. The backseat contained three pairs of basketball shoes which were unlaced and still had new shoe paper wrapping stuffed inside them. The officers transmitted the vehicle's license plate number to the police department and were informed Rita Leudeke was the vehicle's owner. The officers removed the keys from the ignition and closed the vehicle's windows.

Suspecting a burglary may have occurred, Officer Hosier went on foot to check the businesses in the immediate area while Officer Sours checked the outlying area in his police vehicle. As Officer Hosier was returning to the unattended Leudeke The officers resumed their patrol and subsequently observed Herald sitting on the steps in front of a building in the business district. Because the unattended Leudeke vehicle was the focus of their attention, the officers returned to it and conducted a surveillance. The officers observed Herald approach the vehicle, enter it for approximately a minute, and then exit the vehicle. At that point, another vehicle pulled into the area. Herald conversed with the driver of the other vehicle for a few minutes and then returned to the Leudeke vehicle. He entered the vehicle, immediately exited, and proceeded to walk toward the business district. Officer Hosier followed Herald by vehicle while Officer Sours attempted to follow Herald on foot.

vehicle, he observed a man, later identified as defendant Herald, walk slowly toward the United Telephone Building, approach the door of the building, and attempt to open it. When the door would not open, Herald backed away from the door and proceeded down an alley. Officer Hosier confronted Herald, who appeared to be intoxicated, and questioned him about what he was doing in the area. Herald advised Hosier he was enroute to the home of a friend. Officer Hosier observed Herald holding a metallic object in his left hand and questioned him about it. Herald handed the object, a set of keys, to Officer Hosier. Herald advised Officer Hosier he had found the keys at the corner of the United Telephone Building. Officer Sours joined Herald and Hosier at the scene and asked Herald if he knew anything about the vehicle parked behind the library. Herald responded he did not and it was not his vehicle. Officer Sours advised Herald to proceed to his friend's house. Herald left the area.

While following Herald, Officer Sours glanced through a window of the "Flower Nook Shop" and saw a cash register lying on the floor. Officer Sours radioed Officer Hosier to come to the Flower Nook because he believed a burglary had occurred. Officer Sours proceeded toward the back of the Flower Nook Shop where he observed a cash drawer on the ground and Herald standing 15 or 20 feet from the Flower Nook's rear entrance. Sours asked Herald what he was doing. Herald answered he was looking for his car keys. Officer Hosier arrived at the scene and assumed custody of Herald while Officer Sours entered the flower shop. Officer Sours discovered that a wood panel, with three footprints on it, had been kicked out of a door, and the office and showroom areas of the shop were in disarray. At this point, the police officers arrested Herald for public intoxication and, when he resisted being handcuffed, for resisting arrest.

After transporting Herald to the county jail, the officers returned to the flower shop and met with its owner who identified the cash box as his and the keys given to Officer Hosier by Herald as the keys to the flower shop cash register. Subsequently, Officer Sours submitted the wood door panel, Herald's boots, and a fingerprint lifted from the cash register to the State Police Laboratory. The results of the analysis were inconclusive.

A jury convicted Herald of theft and burglary. The trial court ordered Herald to pay a 10,000 dollar fine and sentenced him to concurrent six and one-half years on the burglary charge and three years on the theft charge. ¹

Herald appeals, presenting the following issues, which we have restated and consolidated:

(1) Whether the trial court erred in denying Herald's motion to suppress; and

(2) Whether the evidence is sufficient to sustain Herald's convictions of burglary and theft; and

(3) Whether the trial court erred in the imposition of Herald's sentence.

DISCUSSION

I.

Herald contends the trial court erred in overruling his several motions to suppress evidentiary materials which he claims were the fruits of an initial illegal seizure or otherwise illegally seized.

A.

First, Herald argues the police seizure of the keys in the ignition of the unattended Leudeke vehicle was illegal; ² and, consequently, the admission of the flower shop keys, the flower shop cash drawer, the flower shop door panel, the packing material in which the door panel was packaged at the State Police Laboratory, Herald's boots, and photographs of footwear impressions on the flower shop door panel was erroneous because these exhibits "flowed from and [were] ... obtained as the direct result of ..." the illegal seizure of the vehicle keys. Appellant's Brief at 15. Consequently, according to Herald, these exhibits are inadmissible "fruits of the poisonous tree."

The Fourth Amendment restraint against unreasonable searches and seizures extends not only to evidence directly obtained, but also to derivative evidence. Derivative evidence, secured as a result of information and leads obtained from an illegal search constitutes "fruit of the poisonous tree" and is inadmissible in a criminal prosecution. Eg., Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. The "fruit of the poisonous tree" doctrine has no application, however, when the derivative evidence has an "independent source," Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, when the "connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint,' " Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417 (quoting Nardone v. United States (1939), 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307), and, when the challenged evidence would inevitably have been properly obtained. See Nix v. Williams (1984), 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377.

In Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634, the Indiana Supreme Court discussed the allocation of burdens of proof and proceeding when a court is confronted with issues raised by the "fruit of the poisonous tree doctrine." The court stated the defendant must first prove an illegal search took place and that the evidence offered was a "fruit" of that search. Then the State has the burden of proving the challenged evidence had an independent source, 323 N.E.2d at 642, see Nardone v. United States (1939), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, or to establish the attentuation of the initial taint or the applicability of another exception to the general rule of exclusion. See McCormick on Evidence Sec. 176, at 505 (E. Cleary ed. 3d ed. 1984).

Applying this methodology to the present case, Herald had the burden of proving the seizure of the vehicle keys was unlawful and that the challenged evidence was available to the State as a factual result of the police officers' illegal activity. Without considering the validity of Herald's claim that the seizure of the automobile keys was illegal, we find Herald did not sustain his burden of proving a factual relationship between the officers' alleged illegal seizure of the automobile keys and acquisition of the challenged evidence. At the suppression hearing Herald merely assumed the existence of the required nexus and failed to present any evidence on the issue. On appeal he fails to suggest a theory of factual causation. This court will not hypothesize or speculate on any arguable nexus between the alleged illegal seizure and the challenged evidence. Hence, the trial court did not err in admitting the items of evidence which Herald challenged as being "fruits of the poisonous tree."

B.

Next, Herald argues the trial court erred in admitting into evidence, over his objection, the cash register keys on the ground the police exceeded the scope of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. ³ Herald asserts that although Officer Hosier had the authority to conduct a limited search of Herald in an attempt to locate weapons, he did not have authority to seize and keep the keys which were neither "fruits of a crime nor contraband." Appellant's Brief at 18.

The facts do not support Herald's claim of error. The record reveals Officer Hosier stopped Herald due to his reasonably suspicious conduct. During the Officer's conversation with Herald, Herald voluntarily gave the key to Officer Hosier. Thus, the cash register keys were not obtained as a result of an unlawful seizure. See Schwartz v. State (1978), 177 Ind.App. 258, 379 N.E.2d 480; Boys v. State (1973), 261 Ind. 413, 304 N.E.2d 789.

C.

Herald...