Membres v. State, No. 49S02-0701-CR-33.

Docket NºNo. 49S02-0701-CR-33.
Citation889 N.E.2d 265
Case DateJune 27, 2008
CourtSupreme Court of Indiana
889 N.E.2d 265
George MEMBRES III, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 49S02-0701-CR-33.
Supreme Court of Indiana.
June 27, 2008.

[889 N.E.2d 267]

Robert W. Hammerle, Steven D. Allen, Joseph M. Cleary, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0511-CR-1065

BOEHM, Justice.


We hold that Litchfield v. State, 824 N.E.2d 356 (Ind.2005), does not apply retroactively because it established a new rule of state criminal procedure that does not affect the reliability of the fact-finding process. We also hold that the warrant in this case was supported by probable cause and was not overbroad.

Facts and Procedural History

In March of 2005, Deputy Scott Wildauer of the Marion County Sheriff's Department was involved in an ongoing investigation into possible drug trafficking at the residence of George Membres III. A confidential informant told Wildauer that he saw another drug dealer at Membres's house and that he was "pretty sure" Membres was dealing "large quantities" of marijuana from his residence. Although Wildauer had never used information from the informant to obtain a search warrant, Wildauer had used the informant at least forty to fifty times in the past and found his information "solid" and "reliable." Wildauer was uncertain as to the exact number of convictions that resulted from the informant's information, but he believed that it was more than three. Other surveillance officers reported seeing a vehicle that Wildauer associated with a suspected drug dealer at Membres's house.

889 N.E.2d 268

Based on this information, on March 9, 2005, Wildauer seized the trash from the public area in front of Membres's residence on a routine trash collection day. A search of the trash revealed twenty-five burnt ends of marijuana cigarettes, marijuana, four plastic baggies with corners missing, two empty packages of rolling papers, and mail addressed to Membres. Based on the evidence recovered from Membres's trash, the State obtained a warrant to search Membres's home for "[m]arijuana, controlled substances, U.S. Currency, papers, records, documents, computers, or any other documentation which indicates or tends to indicate a violation or a conspiracy to violate the [Indiana Controlled] Substances Act, paraphernalia, scales, packing materials, and weapons." A search produced $57,060 in cash, marijuana, rolling papers, paraphernalia, firearms, four Rolex watches and other jewelry, cell phones, and a number of documents.

Several weeks later, the State successfully moved for an order under Indiana Code section 35-33-5-5(j) to authorize the transfer of the seized cash, jewelry, and firearms to federal authorities for forfeiture proceedings. Membres moved for a stay of the turnover order and to suppress the evidence, alleging that the search warrant was based on an illegal search of his trash and was overbroad. The trial court initially granted a stay of the turnover order and after a hearing denied the motion to suppress and ordered the property to be turned over to the federal government. A stay of the turnover order was granted to allow Membres to seek appellate review.

Membres appealed, arguing that the turnover was invalid because (1) the search and seizure of his trash was unlawful under Litchfield v. State, 824 N.E.2d 356 (Ind.2005), which was handed down two weeks after the search and (2) the search warrant was overbroad. The Court of Appeals agreed that Wildauer's search of the trash was unlawful under the standard announced in Litchfield. Membres v. State, 851 N.E.2d 990, 993-94 (Ind.Ct.App. 2006). The court did not discuss the merits of Membres's overbroad warrant claim. Id. at 991. We granted transfer. 869 N.E.2d 447 (Ind.2007) (table).

Jurisdiction and Standard of Review

Membres asserts, without elaboration, that appellate jurisdiction is conferred by Appellate Rule 5. That rule authorizes appeals from final judgments under Rule 5(A) and appeals from interlocutory orders authorized by Appellate Rule 14 under Rule 5(B). The trial court's order appears to be a final judgment as to the turnover order and an interlocutory appeal as to the motion to suppress. To the extent this is an interlocutory appeal, we take the trial court's grant of a stay to permit appeal as certifying the order for interlocutory appeal and the Court of Appeals's opinion as accepting the appeal.

We review de novo a trial court's ruling on the constitutionality of a search or seizure. Myers v. State, 839 N.E.2d 1146, 1150 (Ind.2005). However, we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Id. Thus, we do not reweigh the evidence, but consider conflicting evidence most favorable to the trial court's ruling. State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006).

I. Turnover Order

Membres argues that the trial court erred in ordering his property to be turned over to federal authorities for forfeiture proceedings because the search and seizure of the property was unlawful. The statute authorizing the turnover of seized property provides:

889 N.E.2d 269

Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.

Ind.Code § 35-33-5-5(j) (2004). The State argues that the language of the turnover statute is mandatory in that "the court shall" order the transfer of property to federal authorities. Membres responds that the statute by its terms applies only if the property has been "seized under Indiana code chapter 34-24-1." Indiana Code section 34-24-1-2(a) provides:

Property may be seized under this chapter by a law enforcement officer only if:

(1) the seizure is incident to a lawful:

(A) arrest;

(B) search; or

(C) administrative inspection[.]

We agree with the trial court and the Court of Appeals that if the search or seizure of Membres's property was unlawful, the turnover order must be reversed. The statute contemplates a lawful search, and the purpose of the exclusionary rule would be thwarted if law enforcement could conduct unlawful intrusions into citizens' privacy and still use the evidence by turning it over to another jurisdiction.

II. Warrantless Searches of Trash

Searches and seizures under the Fourth Amendment to the Federal Constitution are evaluated under a two-prong reasonableness standard: (1) whether the individual has manifested a subjective expectation of privacy and (2) whether society is willing to recognize that expectation as reasonable. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). In California v. Greenwood, a majority of the United States Supreme Court concluded that under the Fourth Amendment individuals do not have a reasonable expectation of privacy in garbage left for collection outside the curtilage of a home. 486 U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Under this standard, the seizure of Membres's trash did not violate the Fourth Amendment. Presumably for that reason, Membres relies on Indiana law.

Searches under Indiana law are governed by Article I, Section 11 of the Indiana Constitution. It reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Although this language tracks the language of the Fourth Amendment of the Federal Constitution verbatim, significant differences have evolved between Indiana and federal constitutional law governing searches and seizures, including warrantless searches and seizures of trash. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005).

At the time of Membres's search, the most recent decision of this Court on the subject of trash searches was Moran v. State, 644 N.E.2d 536 (Ind.1994). In Moran, undercover investigators ran a hydroponic equipment supply store in order to identify individuals who might be cultivating marijuana. The Moran defendants were patrons of the store and had discussed their growing facilities with the investigators. Id. at 537-38. This resulted

889 N.E.2d 270

in a monitoring of the energy consumption at one of the defendant's homes, which revealed abnormally high electricity consumption. Id. at 538. Based on this information, officers seized the trash without a warrant and found marijuana. Id. In evaluating the legality of the warrantless trash search, Moran rejected the federal "reasonable expectation of privacy" test and determined that the legality of warrantless searches, including searches of trash, turns on the reasonableness of the police conduct under the totality of the circumstances. Id. at 539-40. A majority of this Court noted that the police did not trespass on the premises of the defendants, conducted themselves in the same manner as trash collectors when picking up the trash, and did not cause a disturbance. Id. at 541. This Court concluded that "[g]iven these ... circumstances, and while realizing that Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside" the police activity was reasonable under the Indiana Constitution. Id. The search of Membres's trash met this standard.

Membres contends that the search of his trash was unlawful under Litchfield, decided two weeks after the search. In Litc...

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40 practice notes
  • State v. Reichmand, No. DA 09-0057.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 27, 2010
    ...are not limited to federal jurisprudence, but are broadly recognized in different states and federal circuits: Membres v. State, 889 N.E.2d 265 (Ind.2008) (recognizing the objection requirement for new state constitutional rules applied retroactively); Milligrock v. State, 118 P.3d 11, 15 (......
  • Ward v. State, No. 74S00-0707-DP-263.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 2009
    ...seizure claim. Appellate courts review de novo a trial court's ruling on the constitutionality of a search or seizure. Membres v. State, 889 N.E.2d 265, 268 (Ind.2008), reh'g denied. The trial court's factual determinations, however, will not be overturned unless clearly erroneous. Id. On a......
  • Bentz v. City of Kendallville, No. 08-3324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 2009
    ...is the hallmark of Fourth Amendment analysis. See, e.g., Michael C. v. Gresbach, 526 F.3d 1008, 1014-15 (7th Cir.2008); Membres v. State, 889 N.E.2d 265, 269 (Ind.2008); Trimble v. State, 842 N.E.2d 798, 801 (Ind.2006); Rook v. State, 679 N.E.2d 997, 999 (Ind.Ct.App.1997) ("The basic purpos......
  • Carter v. State, Court of Appeals Case No. 17A–CR–3024
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 2018
    ...probable cause affidavit—that collectively "serv[e] to identify the scope of ... items that could properly be seized." Membres v. State , 889 N.E.2d 265, 276 (Ind. 2008).[21] Here, the warrant authorized searching the phone for:fruits, instrumentalities and evidence pertaining to the crime(......
  • Request a trial to view additional results
39 cases
  • State v. Reichmand, No. DA 09-0057.
    • United States
    • Montana United States State Supreme Court of Montana
    • October 27, 2010
    ...are not limited to federal jurisprudence, but are broadly recognized in different states and federal circuits: Membres v. State, 889 N.E.2d 265 (Ind.2008) (recognizing the objection requirement for new state constitutional rules applied retroactively); Milligrock v. State, 118 P.3d 11, 15 (......
  • Ward v. State, No. 74S00-0707-DP-263.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 2009
    ...seizure claim. Appellate courts review de novo a trial court's ruling on the constitutionality of a search or seizure. Membres v. State, 889 N.E.2d 265, 268 (Ind.2008), reh'g denied. The trial court's factual determinations, however, will not be overturned unless clearly erroneous. Id. On a......
  • Bentz v. City of Kendallville, No. 08-3324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 2009
    ...is the hallmark of Fourth Amendment analysis. See, e.g., Michael C. v. Gresbach, 526 F.3d 1008, 1014-15 (7th Cir.2008); Membres v. State, 889 N.E.2d 265, 269 (Ind.2008); Trimble v. State, 842 N.E.2d 798, 801 (Ind.2006); Rook v. State, 679 N.E.2d 997, 999 (Ind.Ct.App.1997) ("The basic purpos......
  • Carter v. State, Court of Appeals Case No. 17A–CR–3024
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 2018
    ...probable cause affidavit—that collectively "serv[e] to identify the scope of ... items that could properly be seized." Membres v. State , 889 N.E.2d 265, 276 (Ind. 2008).[21] Here, the warrant authorized searching the phone for:fruits, instrumentalities and evidence pertaining to the crime(......
  • Request a trial to view additional results

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