McIlquham v. State, 49S05–1401–CR–28.

Docket NºNo. 49S05–1401–CR–28.
Citation10 N.E.3d 506
Case DateJune 20, 2014
CourtSupreme Court of Indiana

10 N.E.3d 506

Nick McILQUHAM, Appellant (Defendant),
STATE of Indiana, Appellee (Plaintiff).

No. 49S05–1401–CR–28.

Supreme Court of Indiana.

June 20, 2014.

[10 N.E.3d 509]

Deborah Markisohn, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A05–1212–CR–631

RUSH, Justice.

Police responded to a report of a very young child, unsupervised and partially clothed, wandering near a pond at an apartment complex. Defendant, the child's father, arrived shortly thereafter and agreed to let the police check the safety of his apartment before leaving the child with him. “Courts should not be reticent in enforcing the constitutional rule restricting the search of a person's home without a warrant or consent,” Hawkins v. State, 626 N.E.2d 436, 439 (Ind.1993)—but here, Defendant consented to police entry into the apartment, and the child's mother who was the leaseholder consented to a full search. Because of their consents, the contraband found in the apartment was properly admissible, and we affirm the trial court.

Facts and Procedural History

At about 9:00 on the evening of July 5, 2011, two police officers responded to a call about an unsupervised toddler (identified as R.), naked from the waist down, wandering near an apartment-complex retention pond and trying to eat Cheerios off the ground. Shortly after they arrived, Defendant walked up, saying that he was her father and had dozed off while watching her. One officer told Defendant that police “needed to come back to [Defendant's] apartment and make sure what the living conditions were for the child, make sure it was safe, and that [police] would probably end up getting ahold of CPS.” 1 At the time, there was no discussion of exactly what such a “safety check” would entail, but Defendant and police appear to have had a common understanding—in a police interview later that night, Defendant described the police request as “want[ing] to come back to my house and make sure everything is fit,” and the officer testified that he intended to “look [ ] to see what the—how the apartment is, dirty, clean, if there is any food, if there is a bed for the child to sleep in. The whole purpose is for the safety of the child.” Defendant “said it was okay” and walked back to the apartment with the two officers, carrying R. part of the way.

When they arrived at the apartment, Defendant opened the door for police, then immediately “made a bee line for the kitchen” at a “very fast pace” and began making “very furtive movements from the [kitchen] counter to his pockets.” Because police could not tell what Defendant had grabbed, they performed a pat-down—finding no weapons, but that Defendant

[10 N.E.3d 510]

had instead “stuffed a bunch of ... marijuana into his pockets.” In plain view on the counter, there were also “some baggies that had been cut on the corners,” more marijuana, digital scales, and cash. Police then Mirandized Defendant and arrested him for possession of marijuana and child neglect. Defendant said he “sometimes” lived in the apartment, but was not on the lease and the leaseholder, R.'s mother, was at work.

Police then called Mother, who arrived thirty to sixty minutes later and was “very upset” to learn what police had found in the home. They advised her of her Miranda rights, told her that police had been called “for a welfare check,” and told her “that CPS would be notified [and] could determine whether [she] should or should not have [R.]” and the decision was not the officers' to make. They further explained that they wanted to see “[i]f the house was safe,” because they “didn't want to take [R.]” into CPS custody. They advised Mother of her “ Pirtle rights,” 2 and she signed a consent to search the apartment. In the back bedroom of the apartment, police found more marijuana, as well as a gun case under the bed with a loaded .22–caliber revolver inside. Defendant admitted that the drugs and the gun were his and that Mother was unaware of them.

Defendant was charged with Unlawful Possession of a Firearm by a Serious Violent Felon as a Class B felony (because of a 2009 C-felony conviction for battery causing serious bodily injury, for which he was still on probation), Neglect of a Dependent as a Class D felony, and Class A misdemeanors for dealing marijuana, possessing marijuana, and possession of paraphernalia. He waived jury trial, pleaded guilty to the neglect and marijuana-possession counts, and proceeded to bench trial on the firearm, dealing, and paraphernalia counts. During the trial, Defendant moved to suppress all evidence found during the pat-down and during the subsequent search, arguing that he never consented or that he and Mother consented only under the duress of threats to take R. into CPS custody. The trial court held those issues under advisement until conclusion of evidence and post-trial briefs, then denied the motion. The court then acquitted Defendant of dealing marijuana, found him guilty of the firearm and paraphernalia charges, accepted his guilty pleas to the neglect and marijuana-possession charges, and sentenced him to a total of six years.

Defendant appealed, arguing that the handgun and paraphernalia were obtained through an unconstitutional search—challenging the warrantless entry into the apartment, the validity of his or Mother's consents to search, and sufficiency of the evidence for possessing paraphernalia. The Court of Appeals affirmed, holding that the searches were valid because the “community caretaking” exception to the Fourth Amendment permitted warrantless entry into the apartment to ensure the safety of unattended toddler R., and therefore declining to address whether the consents to search were valid. McIlquham v. State, 992 N.E.2d 904 (Ind.Ct.App.2013). We granted transfer, thereby vacating the Court of Appeals decision. McIlquham v. State, 2 N.E.3d 686 (Ind.2014) (table); Ind. Appellate Rule 58(A). We now affirm, holding that Defendant and Mother validly consented to the searches—and accordingly, we decline to address the community-caretaking rationale the Court of Appeals advanced. (As to affirmance of Defendant's

[10 N.E.3d 511]

conviction for possession of paraphernalia, we summarily affirm the Court of Appeals.)

Standard of Review

We review a trial court's ruling on a motion to suppress under a standard “similar to other sufficiency issues”—whether, without reweighing the evidence, there is “substantial evidence of probative value that supports the trial court's decision.” State v. Richardson, 927 N.E.2d 379, 385 (Ind.2010). However, we not only “consider the evidence favorable to the trial court's ruling,” but also “substantial uncontradicted evidence to the contrary, to decide whether the evidence is sufficient to support the ruling.” Holder v. State, 847 N.E.2d 930, 935 (Ind.2006). If the trial court made any findings of fact, we will review them only for clear error, Murphy v. State, 747 N.E.2d 557, 559 (Ind.2001); but the ultimate “ruling on the constitutionality of a search” is a legal conclusion that we review de novo,...

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    ...determination, which we review de novo. See United States v. Figueroa-Espana , 511 F.3d 696, 701 (7th Cir. 2007) ; McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014). We will conclude that a constitutional error resulted in prejudice unless we are "able to declare a belief that it was harm......
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    ...without a warrant violated both the Federal and Indiana Constitutions—raises questions of law we review de novo. McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014) (citing Garcia-Torres v. State , 949 N.E.2d 1229, 1232 (Ind. 2011) ). His second argument—that admitting Detective Pieczonka's......
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