Sloane v. State

• Decision Date: 07 October 1997
• Docket Number: No. 85A04-9606-CR-231,85A04-9606-CR-231
• Parties: Gary SLOANE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1287

686 N.E.2d 1287

Gary SLOANE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 85A04-9606-CR-231.

Court of Appeals of Indiana.

Oct. 7, 1997.

Transfer Denied Dec. 9, 1997.

Katharine C. Liell, Wabash, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, and Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Gary Sloane (Sloane) appeals his conviction of Attempted Arson, a Class B Felony. ¹

We affirm the Appellant's conviction.

ISSUE

The Appellant presents one issue for our review which we restate as:

Whether Sloane received ineffective assistance of counsel when his trial attorney failed to move to suppress and object to the admission of evidence seized at Sloane's residence in a non-consensual, warrantless search? ²

FACTS AND PROCEDURAL HISTORY

At approximately 7:17 a.m. on November 28, 1995, the Wabash Fire Department in Wabash, Indiana received an emergency call to a fire at the residence of the Appellant. Officer Blocher of the Wabash City Police arrived first on the scene and observed, through an open garage door, a flame burning in the garage. Within minutes, firefighters and fire apparatus were on the scene and had extinguished both of two separate fires in the garage attached to Appellant's residence. In the garage, the firefighters saw an aerosol can on the garage window sill; rags placed down into and hanging out of the gas tanks of the two automobiles, the motorcycle and the riding lawn mower; a propane gas tank in the back end of the Caballero automobile; a jug of unidentified liquid in the open trunk of the Cadillac automobile; a motor oil receptacle containing some type of liquid on the roof of the Cadillac automobile; a gasoline container near one of the origins; and plastic gloves near the second of the two origins.

While Master Firefighter Stroup extinguished the fires, other firefighters entered the Sloane residence. Although there were no areas inside the residence where fires had attempted to be set, fire officials found furniture out of place and blocking entrances to the residence; aerosol cans on window sills throughout the residence; bullets and shotgun shells in windows of the residence and facing to the outside; a plastic cup in the kitchen containing still-formed ice cubes; an air tank in one of the fireplaces and the natural gas turned in the "on" position in all the fireplaces; a mixture that appeared to be either gasoline or fuel oil in the sinks and toilets in the residence; broken glass and papers in disarray throughout the living areas of the house; and a Christmas tree knocked over with a liquid thought to be gasoline poured on it.

Upon viewing the condition of the residence, the firefighters present decided to proceed with an investigation, and they then contacted Shift Captain/Fire Investigator Copeland and requested his presence at the scene. The firefighters also discussed with Officer Blocher the situation inside the residence and their belief that this was an incendiary fire, and based upon this information, Officer Blocher then called for detectives from the Wabash Police Department to be present at the scene.

Shift Captain Copeland arrived on the scene at approximately 7:45 a.m. at which time the officer in charge and some of the firemen approached him and informed him of the condition of the interior of the residence. After walking through the residence and examining the situation, Copeland and Master Firefighter Hall obtained samples from the two places of origin in the garage. At approximately 8:20 a.m. Copeland began taking pictures of the residence and its contents. Hall took part in the investigation not only by obtaining samples, but also by making a video tape of the residence. Master Firefighters Siders and Stroup prepared a drawing and diagram of the Sloane residence and the items located therein.

Officer Blocher, from the time the fires were extinguished until approximately 10:00 a.m., examined the interior of the residence and documented items found there, as well as taking photographs of the items. After being summoned to the scene by Officer Blocher, Detective Sergeant Whitmer of the Wabash Police Department arrived just prior to 8:00 a.m. He was told of the situation by the firemen and following a walk-through of the Sloane residence, he then proceeded to set up a crime scene, which included dusting for fingerprints and seizing certain items of evidence.

Fred Sumpter, a cause and origin specialist with Herb Norris Associates in Indianapolis, Indiana, was hired by State Farm, the Appellant's insurance company, and the State Farm Special Investigator, Doug Meyer, to investigate the fires at the Sloane residence. On November 30, 1995, Mr. Sumpter and Mr. Meyer entered and examined the Sloane residence, and began taking photographs of the interior of the residence when they were stopped by the Appellant's father. Verbal permission was then given for Mr. Sumpter and Mr. Meyer to be present in the residence, and they again entered the residence and continued their investigation. ³ As part of his investigation, Mr. Sumpter obtained samples from furniture and carpeting in the Sloane residence due to their odor that resembled an odor commonly associated with gasoline, as well as other items of evidence. Later, Mr. Sumpter also received the two origin samples obtained by the Wabash Fire Department on the day of the fire. Mr. Sumpter prepared a Cause and Origin Summary for the insurance company which was based upon this investigation and which was ultimately introduced as evidence at trial together with the photographs taken by him.

Based upon evidence found at the scene of the fires and in Sloane's residence, Sloane was arrested and charged with Attempted Arson as a Class B Felony. Following his jury trial in February, 1996, Sloane was convicted of Attempted Arson and was sentenced to the Indiana Department of Correction for ten years. He then timely filed this direct appeal.

DISCUSSION AND DECISION

Sloane contends that he was denied effective assistance of counsel based upon his trial counsel's failure to file a motion to suppress evidence obtained by officials in a warrantless search of Sloane's residence, and counsel's further failure to object to the introduction of said evidence at trial.

Prior to determining whether the Appellant was denied effective assistance of counsel, we must first turn to the constitutionality of the warrantless search of Sloane's residence and attached garage. The Fourth Amendment to the United States Constitution protects both privacy and possessory interests by prohibiting unreasonable searches and seizures. Culpepper v. State, 662 N.E.2d 670, 675 (Ind.Ct.App.1996), reh'g denied, trans. denied (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh'g denied; Taylor v. State, 659 N.E.2d 535, 537 (Ind.1995)). Under this Amendment, warrantless searches by the government are per se unreasonable. Clark v. State, 562 N.E.2d 11, 13-14 (Ind.1990), cert. denied, 502 U.S. 961, 112 S.Ct. 425, 116 L.Ed.2d 445 (1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Generally, a judicially issued search warrant is a condition precedent to a lawful search, Fair v. State, 627 N.E.2d 427, 430 (Ind.1993), and "[t]he remedy for an illegal warrantless search is the suppression of the evidence obtained from the search." Clark, 562 N.E.2d at 14 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), reh'g denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72).

In dealing with fire-damaged premises, a warrant is required in the absence of consent or exigent circumstances, and the type of warrant required is determined by the object of the search. Michigan v. Clifford, 464 U.S. 287, 293-95, 104 S.Ct. 641, 647, 78 L.Ed.2d 477 (1984), reh'g denied, 465 U.S 1084, 104 S.Ct. 1457, 79 L.Ed.2d 773. An administrative warrant is sufficient if the object of the search is to determine the cause and origin of the fire; however, a criminal warrant is required if the primary object of the search is to gather evidence in a criminal investigation. Id.

A. Search of Sloane's Garage on November 28, 1995

In responding to the emergency call on November 28, 1995, Master Firefighter Stroup arrived in one of the first responding units and saw one garage door open out of which was pouring "very dark black" smoke. (R. 1660). Upon extinguishment of the two fires that existed in Sloane's garage, Master Firefighter Siders noticed a gasoline container near one origin of the fire and at least one pair of rubber gloves at the second origin, both of which were later taken into evidence. (R. 1516, 1535).

After the fires had been extinguished and the two points of origin had been determined, Shift Captain Copeland and Master Firefighter Hall proceeded to obtain samples of the charred material from each of the two points of origin in the Appellant's garage in order to determine the cause of the fires. (R. 1522). Firefighters Copeland and Hall collected these samples soon after the fires were contained and prior to leaving the Sloane residence on November 28, 1995.

Pursuant to the United States Supreme Court's decision in Clifford and long-standing case law, an administrative warrant is required when the object of the search is the cause or origin of the fire. 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477. However, prior to its decision in Clifford, the Supreme Court addressed firefighters' duties in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). In order to refrain from framing a firefighter's duties in an unrealistically narrow fashion, the Court stated:

Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire's origin may be necessary to prevent its...