State v. Foreman

• Decision Date: 11 March 1996
• Docket Number: No. 89S01-9508-CR-979,89S01-9508-CR-979
• Citation: 662 N.E.2d 929
• Parties: STATE of Indiana, Appellant, v. Marc FOREMAN, a/k/a Marc Forman, Appellee.
• Court: Indiana Supreme Court

Page 929

662 N.E.2d 929

STATE of Indiana, Appellant, v. Marc FOREMAN, a/k/a Marc Forman, Appellee.

No. 89S01-9508-CR-979.

Supreme Court of Indiana.

March 11, 1996.

Appeal from the Wayne Circuit Court; The Honorable Douglas Van Middlesworth, Judge, Cause No. 89C01-9304-CR-47.

Pamela Carter, Attorney General, Geoff Davis, Deputy Attorney General, Indianapolis, for Appellant.

Thomas D. Margolis, Muncie, for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Facts

Defendant Marc Foreman, a.k.a. Marc Forman, leased a room at the Richmond Plaza Bingo Center in Richmond, Indiana, from Luther Ogletree, the operator and manager of the bingo hall.

On April 3, 1992, after receiving a report that unauthorized bingo games were being conducted at the bingo center, investigator Mark Smith with the Special Unit of the Richmond Police Department went to the bingo center to see if it was operating under a proper gambling permit. Upon his arrival to the bingo center, Smith observed several hundred people playing bingo. Smith also learned that there was no proper permit for the bingo games and subsequently ordered the games to cease.

While Smith was at the bingo center, Ogletree identified himself to Smith as the operator of the bingo center and the leaseholder on and lessor of the premises, and then gave Smith written consent to search the premises. During the search of the premises, Smith and assisting officers encountered a locked door. The officers removed the door from its hinges and entered the room behind the door. Inside the room the officers found ten video gambling machines with stools in front of them. Ogletree told Smith the machines were not his and that he was renting the room to defendant. The door to the room was generally left open during bingo games to allow access to patrons of the bingo hall.

On April 30, 1993, Foreman was charged with two counts of professional gambling, both Class D felonies. ¹ In response, Foreman filed a motion to suppress and a motion to dismiss, claiming that Ogletree's consent to search was invalid as to the room leased by him. The trial court granted Foreman's motion to suppress and in doing so stated:

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 than taking the door off its hinges to gain entry....

The requirement of a 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.

Thereafter, the State filed a motion to dismiss, which the trial court later granted. The State then appealed the trial court's granting of Foreman's 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 therefore a warrant was necessary. Id. Foreman seeks review of the Court of Appeals decision and we granted transfer on August 17, 1995.

Discussion

Foreman maintains that the trial court was correct in granting his motion to suppress, because the State's warrantless search of the room he leased at the bingo center constituted a violation of his Fourth Amendment rights. ² The State asserts, and the Court of Appeals agreed, that there was no Fourth Amendment violation since the police conducted the search with the consent of Ogletree, whom the police reasonably believed to have authority over the premises searched.

I

Under the Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, all searches of private property must be reasonable. U.S. Const. amend. IV; Fair v. State, 627 N.E.2d 427, 430 (Ind.1993). "A warrantless search is presumed to be unreasonable, and the State bears the burden to show that the search falls under an exception to the warrant requirement." Smith v. State, 565 N.E.2d 1059, 1060 (Ind.1991) (citing Brooks v. State, 497 N.E.2d 210 (Ind.1986)). The validity of a warrantless search turns upon the facts of each case. Savage v. State, 523 N.E.2d 758, 760 (Ind.1988).

As the Court of Appeals correctly pointed out, "a valid consent to search obviates the necessity of a warrant." 649 N.E.2d at 123 (citing Stallings v. State, 508 N.E.2d 550, 552 (Ind.1987)). Consent to search may be granted by a third party who has common control over the premises searched. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct 988, 993, 39 L.Ed.2d 242 (1974). To establish common authority, the State must show that the third party had joint access or control over the premises. Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.

In this case, the Court of Appeals declined to determine whether or not Ogletree had common authority over the leased premises, because even where a third party does not actually have common control over the premises, if the police at the time of the entry reasonably believed that the third party had common control over the premises, the warrantless entry may be valid. Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 2796-2797, 111 L.Ed.2d 148 (1990). The Court of Appeals applied the Rodriguez analysis to the facts of this case and concluded that the police officers reasonably believed that Ogletree had common authority over the leased premises. In so concluding, the Court of Appeals relied on the facts that Ogletree informed the police that he was the operator of the bingo game and the leaseholder on the premises, that Ogletree gave permission to search the Richmond Plaza Bingo Hall, and that the officers did not find out that Foreman leased the room until after the search was conducted. 649 N.E.2d at 125.

We do not find the Court of Appeal's analysis convincing for several reasons. First, in light of the fact that the police officers took the door off of its hinges to gain access to the room instead of merely asking Ogletree to unlock the door, the evidence is at least conflicting that the officers reasonably believed that Ogletree had common authority over the leased premises. Second, and more importantly, we believe that even if the officers had reasonably believed that Ogletree had common authority over the leased premises, we find no evidence that Ogletree consented to the search of the locked room. It is irrelevant whether or not the officers thought Ogletree had common authority over the leased premises if it is not first clear that he actually consented to a search of the leased premises. Rodriguez, 497 U.S. at 177, 110 S.Ct. at 2795 (third party clearly consented to search first.) As the trial court said, "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 than taking the door off its hinges to gain entry." (emphasis added).

We agree with the trial court that had the police reasonably believed that Ogletree gave permission to search the room, the police simply would have asked Ogletree to unlock the door. Instead, the police took the door off its hinges to gain access to the room. We acknowledge that Ogletree had signed a written consent permitting a search of the Richmond Plaza Bingo Hall, without any explicit exclusion of the locked room. However, we cannot reconcile that fact with the inconsistent behavior of the police in removing the door off the hinges when Ogletree was standing right there and could have easily provided a key to unlock the door. We conclude there was sufficient evidence that Ogletree did not validly consent to a search of the leased premises to support the trial court's grant of the motion to suppress. ³

II

The State also argues that even if valid consent was not given, the defendant did not have a legitimate expectation of privacy in the area searched and that therefore the search did not violate the defendant's Fourth Amendment rights.

"[A] Fourth Amendment violation must establish [ (i) ] that the defendant had an actual or subjective expectation of privacy and [ (ii) ] that the claimed expectation must be one which society recognizes as reasonable." Blalock v. State, 483 N.E.2d 439, 441 (Ind.1985) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). This two prong test was initially espoused in Justice Harlan's well known concurrence in Katz and has come to play a vital role in Fourth Amendment jurisprudence.

A

The first prong of the test requires a determination that the defendant held an actual, subjective expectation of privacy in the area searched. Katz, 389 U.S. at 361, 88 S.Ct. at 516-17. In making this determination, courts have historically looked to the steps that the defendant took to preserve his or her privacy. See California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (A ten foot fence placed by the defendant around his yard was evidence that he took precautions to maintain his privacy, at least with respect to street level viewers.); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (By taking steps to place his personal effects in a locked footlocker, the defendant manifested an expectation of privacy....