Moran v. State

• Citation: 644 N.E.2d 536
• Decision Date: 12 December 1994
• Docket Number: No. 49SO5-9412-CR-1192,49SO5-9412-CR-1192
• Parties: Dominick C. MORAN, Andrew Holland, Appellants-Defendants, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 536

644 N.E.2d 536

Dominick C. MORAN, Andrew Holland, Appellants-Defendants, v. STATE of Indiana, Appellee.

No. 49SO5-9412-CR-1192.

Supreme Court of Indiana.

Dec. 12, 1994.

Rehearing Denied May 12, 1995.

Robert W. Hammerle, Hammerle & Foster, and John M. Moses, Indianapolis, for appellant.

Pamela Carter, Atty. Gen. of Indiana and Joseph F. Pieters, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees.

ON PETITION TO TRANSFER

DeBRULER, Justice.

This case comes to us on cross-petitions to transfer from a Court of Appeals decision of an interlocutory appeal of the results of a suppression hearing in Marion Municipal Court. Ind. Appellate Rule 11(B); Ind. Appellate Rule 4(B)(6). The trial court ruled that items taken from a private residence in a search pursuant to warrant would be admissible during appellants' trial on criminal charges of possession of more than thirty (30) grams of marijuana, a Class D felony. Ind.Code § 35-48-4-11 (Burns 1985). The Court of Appeals affirmed. Moran v. State (1993), Ind.App., 625 N.E.2d 1231. We grant transfer in order to resolve the disagreement within the Court of Appeals. Bell v. State (1993), Ind.App., 626 N.E.2d 570; App.R. 11(B)(2)(c).

The issues considered in this appeal are:

1) whether police conduct in taking and examining trash put out for pickup was consistent with the protection afforded by the IND. CONST. art. I, § 11, and by the U.S. CONST. amend. IV;

2) whether the police conduct in searching a house and seizing items from it pursuant to a search warrant was consistent with the protection afforded by the IND. CONST. art. I, § 11, and by the U.S. CONST. amend. IV.

Facts

From May of 1991 to April of 1992, the Indiana State Police ("ISP") operated Circle City Hydroponics ("CCH") in Zionsville, Indiana. By supplying hydroponic equipment the ISP intended to identify individuals who might be cultivating marijuana and to develop leads for further investigation. CCH specialized in products and supplies commonly used to illicitly cultivate marijuana, though CCH products could also be used in legitimate hydroponic activities.

Between August 7, 1991 and February 18, 1992, Holland, sometimes accompanied by another man, visited CCH several times. The two men spent a total of $327.72 on supplies which could be used for indoor cultivation of marijuana. They had numerous conversations with undercover investigators at the store, including discussions about the growing facilities in Holland's home. The last of these conversations occurred on October 21, 1991.

Because of Holland's patronage of CCH, the ISP investigated further. Beginning in August, 1991, and ending April 9, 1992, the ISP monitored Holland's electricity consumption, which averaged almost twice that of the prior resident. On January 8, 1992, the ISP conducted thermal imaging ¹ surveillance of Holland's home. This detected several warm areas in Holland's home which were not detected in any other residences in the immediate neighborhood.

At approximately 5:00 a.m., on or about January 22, 1992, two ISP officers drove to Holland's house in a pickup truck. The house sat back fifty feet from the street. Several plastic garbage cans were sitting about a foot from the street in front of the house, near the mail box. They had lids. They had been set out for the trash pickup scheduled for that day. The contents of the cans included both loose material and material in several common opaque plastic garbage bags. The cans were emptied into the back of the pickup truck and taken to the ISP office, where the garbage bags were opened and sifted through for contraband and evidence. ISP officers found a green leafy material later determined to be marijuana plant clippings.

On April 20, Federal Magistrate Judge J. Patrick Endsley, at the behest of the U.S. Attorney, issued a warrant supported by an affidavit of ISP Officer Timothy J. McClure, commanding the search of Holland's residence by special federal agents, with return to be made to federal court. ISP officers assisted in the execution of this warrant on April 22. Moran, Holland and another individual were within the residence at that time. Officers found and seized three bags of material believed to be marijuana, several marijuana plants growing in buckets in various locations in the house, and additional plants in the yard. In Marion Municipal Court on May 1, Moran and Holland were each charged by information with possession of over thirty (30) grams of marijuana.

On August 3, Holland filed his motion to suppress evidence, requesting the court to suppress all evidence and testimony related to the warrantless search of Holland's trash and to the execution of the search warrant on April 22. The claim was based upon both the U.S. Constitution's Fourth Amendment and Indiana Constitution, Article 1, Section 11. On September 2, Moran filed a similar motion and the court conducted an evidentiary hearing on both motions to suppress. On October 8, following a hearing, the court denied those motions.

I

This warrant was issued by a federal Magistrate applying federal statutory and constitutional principles. In that federal process the Indiana provision regarding searches and seizures had no application. United States v. Dudek, 530 F.2d 684 (6th Cir.1976). Such provision is however, like the federal one, applicable in this appeal as it was when state Judge Wiles ruled on the question of whether the prosecution should be permitted to convict upon evidence that was that warrant's product. Indiana judges serve as judicial officers of a sovereign power, the State of Indiana. They must respect and adjudicate state constitutional claims when made. This is a separate and distinct dimension of their offices. In this dimension Indiana law is binding, while federal law and the law of sister states may have persuasive force. Priest v. State (1979), 270 Ind. 449, 386 N.E.2d 686. Indiana judges also have the separate duty to respect and adjudicate claims when made based upon federal constitutional rights protected from state impingement. In this dimension, federal law is binding. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Dixon v. State (1946), 224 Ind. 327, 67 N.E.2d 138 (direct application of the Fourteenth Amendment of the U.S. Constitution); State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874. (direct application of the Fourth Amendment of the U.S. Constitution).

Article I, § 11, the search and seizure provision of the Bill of Rights of the 1851 Indiana Constitution applicable to this case, provides:

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.

This same provision appeared as Section 8 of the 1816 Constitution of Indiana. It was inserted in both constitutions without significant debate or change. Like provisions appeared shortly after the Declaration of Independence in the constitutions of the American states, the first in the 1776 Constitution of Virginia. Sources of Our Liberties (Perry and Cooper ed., American Bar Foundation, 1959). The same provision then appeared in 1791 in the Bill of Rights to the U.S. Constitution as the Fourth Amendment. The framers of those earliest provisions, like the framers of the 1816 Indiana Constitution, undoubtedly intended by this provision to prevent abuses of the police power like those experienced at the hands of the British during colonial times. See Boyd v. United States, 116 U.S. 616, 625-626, 6 S.Ct. 524, 529-530, 29 L.Ed. 746, 749 (1886).

The text of the provision is made up of two clauses. The first prohibits any search or seizure that is unreasonable and the second conditions the issuance of warrants to search or seize upon specificity and probable cause. The first clause recognizes the dangers of abusive searches, with or without warrants. See United States v. Leon, 468 U.S. 897, 960, 104 S.Ct. 3405, 3445, 82 L.Ed.2d 677, 722 (1984) (Stevens, J., dissenting). The reasonableness clause protection is broader and more general. The warrant clause protection is the more specific.

Because we read this section of our constitution as having in its first clause a primary and overarching mandate for protections from unreasonable searches and seizures, the reasonableness of the official behavior must always be the focus of our state constitutional analysis. The state standard of reasonableness frequently requires that police action occur only with a judicial sanction. The purpose of such a requirement is not to interfere with police officers in their legitimate decision-making, but to make certain that decisions requiring the overriding of Hoosiers' constitutionally-guaranteed protections are made by a neutral judicial official. The reasonableness standard explains the requirement that, absent exigent circumstances, the police must "knock and announce" before conducting a search, even when executing a valid search warrant. State v. Dusch (1972), 259 Ind. 507, 510-511, 289 N.E.2d 515, 516-517. ² The "knock and announce" requirement emphasizes the importance of the reasonableness. The police possessed a properly issued warrant but, because failing to knock on the door and announce their authority was unreasonable, the evidence seized was excluded.

This preference for the warrant is based on the assumption that a warrant requirement would effectively encourage reasonable behavior on the part of government officials. It also reflects a well-grounded belief that many searches require a warrant in order to be reasonable.

Over the years following our adoption of the exclusionary rule, this Court consistently expanded the protection provided by the exclusionary rule. It was applied to require that a fire marshal...