State v. Foreman, 89A01-9311-CR-366
| Decision Date | 12 April 1995 |
| Docket Number | No. 89A01-9311-CR-366,89A01-9311-CR-366 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Marc FOREMAN, a/k/a Marc Forman, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellant.
Thomas D. Margolis, Muncie, for appellee.
The State of Indiana appeals from the trial court's order granting Marc Foreman's motion to suppress evidence obtained as a result of the State's warrantless search of an illegal gambling operation. The State contends there was no Fourth Amendment violation because its search was conducted with the consent of a third party whom the police, at the time of their entry, reasonably believed to possess common authority over the premises.
We reverse and remand. 1
We restate the question presented for review as one dispositive issue: whether the State's warrantless search violated the Fourth Amendment or the police held a reasonable belief they had obtained valid consent to search the premises, which obviated the warrant requirement.
On April 3, 1992, Mark Smith, an investigator with the Special Investigations Unit of the Richmond Police Department, went to the Richmond Plaza Bingo Center to ascertain whether it was operating under a proper gambling permit. Smith had received reports that unauthorized bingo games were being conducted at the Bingo Center and, when he arrived, a bingo game involving After Ogletree told Smith that he was the operator of the bingo game and that he leased the building, Ogletree gave Smith written consent to search the premises. The consent specifically authorized police to search the "Richmond Plaza Bingo" center, as described by its street address. Record at 513. During their search of the Bingo Center, the police found a locked door to a room located at the rear of the building. Smith testified that, upon his arrival, the door had been closed by Guy Vanderpool, a worker at the center whom Smith recognized.
several hundred people was in progress. Smith immediately went to the rear of the center and spoke with a number of people in the office, including Luther Ogletree, the center's manager. When Smith learned there was no permit to conduct bingo games on the premises, he ordered the game stopped.
Without questioning Ogletree about the locked door, police officers subsequently removed the door from its hinges and entered the room. Inside, the officers found ten video gambling machines and ten stools. The room, which measured approximately 14' X 6', contained just enough space for the ten machines positioned side-by-side and for ten people to sit in front of them. The room did not contain any bingo supplies.
After police had entered the room and discovered the video machines, Ogletree informed Smith that he did not own the machines. Rather, Ogletree explained, the machines belonged to Marc Foreman. Ogletree then produced a copy of a sublease agreement with Foreman, which provided that Foreman was to pay him $500.00 per month for use of the 14' X 6' room. 2 Foreman had placed the video machines in the room with Ogletree's knowledge, and with the assistance of Vanderpool and Perry Munson, another worker at the center. Before police left, Vanderpool gave Smith a set of keys to the room, which he possessed with Foreman's knowledge. One of the keys opened the door to the leased room and another opened the ten video machines.
Police later learned that Vanderpool and Munson tended the video gambling machines for Foreman. Vanderpool and Munson's duties were to reset the machines when players finished and to make "payoffs" to players for credits they accumulated while playing the machines. In addition, the two workers frequently played the machines, as did Ogletree. Foreman testified that he placed the machines in the room for profit and that he made periodic visits to the Bingo Center to check the machines.
When asked who else had access to the leased room, Foreman answered his "help" at the Bingo Center, including Vanderpool, whom he had authorized to open the room to the general public and to those who patronized the bingo games. Record at 482-83. Foreman testified that he placed no restrictions on who Vanderpool could admit into the room to play the video machines and, indeed, that the room was to be left open during bingo games so that bingo players could enter.
On April 30, 1993, Foreman was charged with two counts of professional gambling, both Class D felonies, in violation of Indiana Code § 35-45-5-3(3) and (6). Foreman then filed a motion to suppress and a motion to dismiss. After a hearing on Foreman's motions, the trial court entered the following order granting Foreman's motion to suppress:
The Court, having taken ruling on defendant's motion to suppress under advisement and having considered the evidence, now grants the defendant's motion to suppress. Evidence seized April 3, 1992, and evidence developed from the search and seizure of evidence from the room containing gaming equipment at the Richmond Plaza Bingo shall not be admitted at trial.
MEMORANDUMPolice searched the Richmond Plaza Bingo business on April 3, 1992 with the consent of Luther Ogletree who apparently operated that business.
During the course of the search, the police entered into a locked room by taking the door off the hinges. Inside they found what are purported to be illegal gaming machines. The uncontroverted evidence from the State and the defense is that the locked room was in possession of the defendant pursuant to a lease. Ogletree's consent to search was invalid as to the property leased by Foreman.
The argument that the police believed they had valid consent to search the premises would be more persuasive had they asked the presumed consenting party to unlock the door rather that taking the door off its hinges to gain entry.
The court is not persuaded by the State's 'expectation of privacy' analysis. This is an uncertain and developing area of the law. However, the Court will not conclude that one suspected of illegal activity which involves dealing with a segment of the general population has no expectation of privacy. If such were the case, persons suspected to be engaged in a wide variety of illegal activity such as prostitution, drug dealing, fencing, gambling would not be afforded the protections of the Fourth Amendment. Locked doors could be removed or broken down and searches concluded without the necessity of a judicial determination of probable cause.
The requirement of search warrant is intended to protect all from unreasonable searches. The present case highlights the importance of obtaining a warrant when possible. In the present case, first hand information concerning the activities in the subject room was obtainable with a minimal police investigation. The police already suspected illegal gaming in the room, having received several tips. There were numerous customers and workers at the Bingo Plaza that had access to the room and were familiar with the activities therein. An undercover agent could have obtained access with little apparent difficulty. The prudent steps of obtaining a warrant would have prevented the illegal search problem.
Record at 418-19 (emphases added).
Thereafter, the State filed a motion to dismiss in which it asserted that the trial court's order granting Foreman's motion to suppress precluded further prosecution. On August 23, 1993, the trial court granted the State's motion to dismiss and the State appealed. See IND.CODE § 35-38-4-4.
The State contends the trial court erred when it granted Foreman's motion to suppress. Because the State bore the burden of proof to show that the warrantless search fell within an exception to the warrant requirement, it is appealing from a negative judgment and on appeal must show that the trial court's ruling was contrary to law. See State v. Jorgensen (1988), Ind.App., 526 N.E.2d 1004, 1006; State v. Blake (1984), Ind.App., 468 N.E.2d 548, 550. We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id. We consider only the evidence most favorable to the judgment and do not reweigh the evidence or judge the credibility of the witnesses. State v. McLaughlin (1984), Ind.App., 471 N.E.2d 1125, 1136, trans. denied.
Generally, under the Fourth Amendment, "a search warrant is a prerequisite to a constitutionally proper search and seizure." Stallings v. State (1987), Ind., 508 N.E.2d 550, 552. However, a valid consent to search obviates the necessity of a warrant. Id. Consent to search which is given by a third party having common authority with the defendant over the premises is sufficient to justify a warrantless search. Id.; see United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 ().
We need not decide whether, under Stallings and Matlock, the search in the present case would have been valid if Ogletree had common authority with Foreman over the leased room. Even where a third party in fact lacks common authority to give consent, "a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises." Myers v. State (1990), Ind.App., 564 N.E.2d 287, 289-90 (quoting Illinois v. Rodriguez (1990), 497 U.S. 177, 179, 110 S.Ct. 2793, 2796, 111 L.Ed.2d 148, 155); see Kennedy v. State (1991), Ind., 578 N.E.2d 633, 638, cert. denied, 503 U.S. 921, 112 S.Ct. 1299, 117 L.Ed.2d 521.
In Myers, we expressly followed the United States Supreme Court's analysis regarding third party consent in Rodriguez. Id. at...
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Forman v. Richmond Police Dept.
...On April 12, 1995, an Indiana appellate court reversed the trial court's ruling on the Motion to Suppress. See State v. Foreman, 649 N.E.2d 120 (Ind.Ct.App.1995). That court held, as a matter of law, that the Richmond Police Department reasonably believed that Ogletree possessed common auth......
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State v. Foreman
...motion to suppress, claiming that the search was valid. The Court of Appeals agreed and reversed the trial court. Indiana v. Foreman, 649 N.E.2d 120, 125 (Ind.Ct.App.1995). Judge Baker dissented and agreed with the trial court that valid consent had not been obtained in this case and that t......