Richard v. State

• Citation: 482 N.E.2d 282
• Decision Date: 28 August 1985
• Docket Number: No. 1-1284A311,1-1284A311
• Parties: Betty RICHARD, Dale Richard, Mike Richard, Gary Richard, Mike W. Skaggs, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 282

482 N.E.2d 282

Betty RICHARD, Dale Richard, Mike Richard, Gary Richard, Mike W. Skaggs, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-1284A311.

Court of Appeals of Indiana,

First District.

Aug. 28, 1985.

Michael J. McDaniel, New Albany, for appellants.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

The several defendant-appellants are appealing from their conviction by a jury of diverse offenses. Betty Richard and Mike Skaggs were found guilty of the Class C misdemeanor of unlawfully possessing a deer (IND. CODE 14-2-3-3). Dale Richard was also found guilty of unlawfully possessing a deer as well as the Class C misdemeanor of hunting without the landowner's consent (IND. CODE 14-2-6-1) and the Class B misdemeanor of hunting and taking a deer out of season (IND. CODE 14-2-3-3). Gary Richard was convicted of hunting without the landowner's consent and the Class D felony of possessing more than 30 grams of marijuana (IND. CODE 35-48-4-11). The convictions for hunting without the landowner's permission are not being contested in this appeal.

We reverse.

The facts surrounding the case are that Conservation Officer Little was called to the scene of a hunting related shooting accident by the Harrison County Sheriff's Department. After arriving on the scene, Little determined from conversation with others that Gary Richard had been shot and hit by a deer slug purportedly while fox hunting and while in the company of Mike Skaggs. Little was "highly" suspicious of game related violations. Officer Little also determined that the gun fired at Richard had been hidden. Little then went to Mike Skaggs' mobile home to look for evidence of illegal deer or game violations. While at the Skaggs' property, Little found the rib cage of a deer in the well house and the head of a seven-point deer in a freezer. The freezer was located on the back porch outside of the mobile home.

Little then went to the property owned by Betty Richard. Dale Richard admitted that he had accidently shot Gary and that the gun was recovered by the police. The gun used by Dale was loaded with deer slugs and double ought buck shot. Little noticed a red substance on the tailgate of a pickup truck registered to Betty Richard. In response to Little's inquiry about the substance, he was informed that it was barbecue sauce. Little went to a trash barrel where he had previously seen barbecue sauce. In the bottom of the barrel, Little found a plastic trash bag which was covered with hair and the sauce. The bag contained parts of a deer wrapped in old bedding. Continuing his search for deer remains, Little lifted the cover of a boat and found marijuana, subsequently determined to be in the amount of approximately 945 grams. Gary Richard was identified on the boat's registration papers as the transferee, hence, owner of the boat. Conservation Officer Hensley, called to assist in the investigation, made tests on the rib cage and found lead residue of the type associated with deer slugs. He also determined that hair found on the pickup truck was from a deer.

Subsequent to being charged and prior to trial, the defendants filed a motion to suppress the evidence obtained during the warrantless and nonconsensual search of the Skaggs and Richard property. After a hearing on the motion, the trial judge overruled it and made a finding of probable cause.

Because we reverse, we shall collectively discuss only two issues concerning the admission of evidence seized as a result of a warrantless search. Underlying the argument is IND. CODE 14-2-9-1 which reads:

The director, game wardens [conservation officers], and deputy game wardens [conservation officers] shall have the power and authority to search any boat, conveyance, vehicle, automobile, fish-box, fish-basket, game bag, game coat, or any receptacle in which game may be carried, and may enter into or upon any private or public property for such purposes or for the purpose of patrolling or investigating when he has good reason to believe that he will secure evidence of a violation of any of the laws for the propagation or protection of fish, frogs, mussels, game, fur-bearing animals, or birds, now in force or hereafter enacted, or any of the provisions of this act [14-2-9-1--14-2-9-4]. Public or private property shall not include dwellings or dwelling houses. (Emphasis added).

The defendants argue that the statute is not consitutional for the reason that it substitutes a lower standard than probable cause or, in the alternative, that the search was conducted without probable cause and that there was an absence of exigent circumstances. The State argues that the constitutional question has been waived and that probable cause did exist.

The State's argument that there has been a waiver of the constitutional question is without merit. The statutes the State relies upon, I.C. 35-3.1-1-4 and I.C. 35-3.1-1-6, relate to the constitutionality of the statute defining the offense charged. The defendants do not challenge the constitutionality of the underlying criminal offenses, instead they raise the question, and preserved it throughout the trial, of the use of evidence procurred by means of a warrantless search.

On the other hand, it is law of long standing that if a cause can be decided without passing on the constitutional question we will do so. Hoover v. Wood, (1857) 9 Ind. 286, Consolidated City of Indianapolis v. Cutshaw, (1983) Ind.App., 443 N.E.2d 853. Under the facts at hand, we previously noted that in ruling on the motion to suppress, the trial judge found probable cause existed for the search. Additionally, during the trial when the complained of exhibits were offered and objected to, the trial judge reiterated that probable cause standard was utilized and not "a good reason to believe" standard. As a result, the appropriate standard was used by the trial judge, with the question remaining of whether the facts sustain a warrantless search.

Prior to further discussion of the merits, we believe it proper to observe that a conservation officer is a law enforcement officer. I.C. 14-3-4-9(b) states:

The conservation officers have the power to enforce all laws of Indiana and without writ or warrant to arrest for violation thereof when committed in their presence. (Emphasis added).

We are of the opinion that no serious question can be raised that conservation officers are exempted from the constitutional guarantees relating to unreasonable search and seizure. See: U.S. Const. amend. 4, Ind. Const. Art. 1, Sec. 11, Jones v. State, (1984) Ind.App., 467 N.E.2d 1236.

Turning to an examination of the legal sufficiency of the warrantless search, the initial premise is that a judicially issued search warrant is a condition precedent to a valid search and seizure except under a few, narrowly drawn exceptions, where the exigencies of the situation mandate an immediate response. Ludlow v. State, (1974) 262 Ind. 266, 314 N.E.2d 750, Rihl v. State, (1980) Ind.App., 413 N.E.2d 1046. The State bears the burden of proving that a warrantless search falls into one of these exceptions. Ludlow and Rihl, supra, Short v. State, (1982) Ind. 443 N.E.2d 298. We note that exigent circumstances justify dispensing with a warrant but they do not eliminate the need for probable cause. Cochran v. State, (1981) Ind.App., 429 N.E.2d 672. Probable cause must be established before the search and not as the results of the search. Snyder v. State, (1984) Ind.App., 460 N.E.2d 522.

A review of the evidence given at the hearing on the motion to suppress reveals the following things: That Officer Little had received telephone complaints prior to the shooting that some of the defendants had been hunting deer out of season, however, the identity of the complainants was either not known or had been forgotten by Officer Little. The source of information, as it relates to what caused the shooting and that others at the scene quickly left taking their guns with them, was either unknown or not identified. Officer Little relied specifically upon I.C. 14-2-9-1 in entering upon Skaggs' and then Richard's property and making the search. Officer Little had no knowledge of any game being taken by the defendants. In response to a question asking why he had reason to believe that there had been violations of fish and wildlife laws, Officer Little replied:

Because they were some of the subjects involved in the hunting activity where the accident happened and they were all the ones that had left real quick.

Summarizing, Officer Little conducted the searches for the reason the victim had been shot with a deer slug at a time when deer should not be hunted with such a weapon, because he had previous complaints about some of the defendants hunting deer out of season, and because some of the defendants left the shooting scene in a hurry and hid the weapons involved. Both on direct and cross-examination the only testimony pertaining to exigent circumstances was the mention, without further explanation or comment, that some of the defendants hurriedly left the scene of the shooting in a motor vehicle and hid their weapons. ¹

The recent case of Sayre v. State, (1984) Ind.App., 471 N.E.2d 708 summarized the exigent circumstances exception necessary for a warrantless search. Judge Garrard wrote:

The question then is whether exigent circumstances existed to justify the warrantless entry and subsequent seizure of evidence. Exceptions to the fourth amendment's requirement of a search warrant before lawful entry of a premises may be made by government officials include:

1) risk of bodily harm or death, e.g. United States v. Perez (N.D.Ohio 1977), 440 F.Supp. 272 (fire at defendant's house, defendant exited with explosives, warrantless search for more explosives held proper to protect public);

2) to aid a person in need of assistance, Harrison v....