Mast v. State, 50A03-0310-CR-422.

• Citation: 809 N.E.2d 415
• Decision Date: 01 June 2004
• Docket Number: No. 50A03-0310-CR-422.,50A03-0310-CR-422.
• Parties: Paul M. MAST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

809 N.E.2d 415

Paul M. MAST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 50A03-0310-CR-422.

Court of Appeals of Indiana.

June 1, 2004.

Rehearing Denied July 26, 2004.

John S. Hosinski, South Bend, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Paul M. Mast brings this interlocutory appeal challenging the trial court's denial of his motion to suppress. Specifically, Mast argues that the police conducted an improper warrantless search of a dumpster containing garbage that had been located on his property, that the State improperly solicited and utilized the assistance of a private agent to effect the search, and that the probable cause affidavit for a search warrant that was ultimately issued was "deficient in its requirement for particularization of elements as to specific individuals or specific properties." Appellant's Br. p. 2. Concluding that the trial court properly denied Mast's motion to suppress, we affirm.

FACTS

Sometime in May, 2002, Officer Les McFarland of the Marshall County Sheriff's Department had been working with a multi-city drug task force. At some point, Officer McFarland learned that the Mast brothers—who lived at the adjoining properties of 9415 and 9625 Elm Road near Bourbon in Marshall County, Indiana—were involved in illegal drug activities. Paul Mast lived at the 9625 residence while his brother, Lamar, resided at the 9415 property. Officer McFarland and Officer Bridget Strong drove to the properties and observed a commercial dumpster owned by Key Waste Services (Key Waste) situated at or near the property line that divided the two properties. The dumpster was located approximately fifteen to twenty feet from the road.

Officer McFarland revealed that he had conducted a prior investigation of the property in 1998. At that time, the property was designated 9415 Elm Road and there was only one residence and one barn located thereon. Since that time, Paul Mast's residence and a pole barn had been added. Officer McFarland then made inquiry with the local clerk's office and learned that the utilities of the two properties were separate and in each of the brother's names.

In furtherance of the investigation, Officer McFarland contacted the owner of Key Waste and was informed that the removal service account was in Lamar's name. He also discovered that the trash was picked up every other Wednesday and that the last regular pickup had occurred on May 8, 2002. Moreover, Officer McFarland learned that the account was delinquent and that Key Waste had planned to remove the dumpster from the property after making a final dump.

Officer McFarland then obtained permission from Key Waste to ride in the truck for the next trash removal from the Masts' dumpster. That removal was scheduled to occur on May 22, 2002. Prior to that day, Officer McFarland borrowed a Key Waste employee's uniform and met the driver of the dump truck at a nearby location. Officer McFarland then rode in the truck with the Key Waste employee where they planned to pick up the trash from the Masts' dumpster and unload it. When Officer McFarland and the employee arrived, the driver backed the truck to the dumpster, hooked the container, and dumped the contents into the holding receptacle. Officer McFarland remained in the truck during the entire process. The employee then drove the truck to a nearby church where Officer McFarland believed that another Key Waste dumpster was located. Other police officers met them in the church parking lot, whereupon they examined the garbage recovered from the Masts' dumpster and found that some of the trash bags were "sealed." Tr. p. 19-20. Upon opening the bags, the officers discovered that some of them contained marijuana stems and most all of the bags had "aluminum boats" in them, a device that is used to smoke methamphetamine. United States mail was also in the bags that had been addressed to either Paul or Lamar. The police learned that on May 28, 2002, a theft of anhydrous ammonia occurred in the southern part of Marshall County. A lead in that case indicated that the stolen chemical had been delivered to the Masts' Elm Road property. As a result, Officer McFarland obtained search warrants for both properties and executed the warrants on May 29, 2002. The return on the warrant as to Paul's residence indicated that the police seized plastic bags containing "pink rock-like substance[s], white powder, a quantity of suspected marijuana including stems and seeds and other drug paraphernalia." Appellant's App. p. 30-33. The following day, Mast was charged with Dealing in Methamphetamine,¹ a class A felony, Possession of Methamphetamine,² a class C felony, Possession of Marijuana,³ a class A misdemeanor and Maintaining a Common Nuisance,⁴ a class D felony.

Thereafter, Mast filed a motion to suppress on July 23, 2003, alleging that under Article 1, Section 11 of the Indiana Constitution, the intrusion onto his private property for purposes of conducting a search of the dumpster was improper and, therefore, the evidence should not be admitted at trial. Mast also challenged the validity and execution of the search warrant on his property, alleging that the facts set forth in the probable cause affidavit did not support the issuance of a warrant. Following a hearing, the trial court granted Mast's motion to suppress for the reason that the search warrant that had been issued only authorized the police to enter Lamar's residence and, therefore, the entry into Paul's property was improper. The order noted, however, that the search of the dumpster on May 22, 2002 was valid.

On August 22, 2003, the State filed a motion to reconsider the trial court's earlier grant of the motion to suppress. The State pointed out that a search warrant had in fact been issued for Paul's property, but it had not been filed with the court before it was executed. Following a hearing, the trial court granted the State's motion to reconsider. The trial court explained that it initially granted the motion to suppress based upon the erroneous belief that only one warrant had been issued for a search of Lamar Mast's residence, and that warrant did not authorize a search of Paul's house. Upon learning that a warrant had in fact been issued for a search of Paul's residence, the trial court changed its ruling and denied the motion to suppress. Thereafter, Mast filed a petition for interlocutory appeal, and we accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).

DISCUSSION AND DECISION

I. Standard of Review

In reviewing the decision denying a motion to suppress, we first note that the trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999). Additionally, a trial court's decision to deny a motion to suppress is reviewed in the same fashion as we review sufficiency of the evidence claims. Edwards v. State, 759 N.E.2d 626, 630 (Ind. 2001). That is, we will consider the evidence most favorable to the judgment of the trial court and will neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the denial of the motion to suppress, the trial court's decision will be upheld. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997).

With respect to Fourth Amendment claims, the State bears the burden to prove the reasonableness of a warrantless search. Roehling v. State, 776 N.E.2d 961, 963 (Ind.Ct.App.2002), trans. denied. We have recognized that the purpose of the Fourth Amendment to the United States Constitution is to protect the privacy and possessory interests of individuals by prohibiting unreasonable searches and seizures. Barfield v. State, 776 N.E.2d 404, 406 (Ind.Ct.App.2002). Additionally, in order to invoke the protection of the Fourth Amendment, a person must have a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The United States Supreme Court has held that the warrantless search and seizure of garbage bags left outside a defendant's house violates the Fourth Amendment only if the individual manifested a subjective expectation of privacy in his or her garbage that society accepts as objectively reasonable. California v. Greenwood, 486 U.S. 35, 38, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).

In addition to analyzing warrantless searches under the Fourth Amendment to the United States Constitution, we note that Mast has challenged the propriety of the search under Article I, Section 11 of the Indiana Constitution. While the United States Constitution establishes a minimum level of protection to citizens of all states, a state is free as a matter of its own constitutional law to impose greater restrictions on police activity than those deemed minimal under federal law. See State v. Stamper, 788 N.E.2d 862, 864 (Ind.Ct.App.2003),

trans. denied (citing Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975)).

The Indiana Constitution has unique vitality, even where its words parallel federal language. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002). We resolve Indiana constitutional claims by "examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." Id., (quoting Indiana Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994)). Moreover, it has been held that Article I, Section 11 must be liberally construed to protect Hoosiers from unreasonable police activity in private areas of their lives. Id. (quoting Brown v. State, 653 N.E.2d 77 (Ind.1995)). Rather...