State v. Friedel

• Decision Date: 17 August 1999
• Docket Number: No. 76A05-9808-CR-410.,76A05-9808-CR-410.
• Citation: 714 N.E.2d 1231
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Susan K. FRIEDEL, Appellee-Defendant.
• Court: Indiana Appellate Court

714 N.E.2d 1231

STATE of Indiana, Appellant-Plaintiff, v. Susan K. FRIEDEL, Appellee-Defendant.

No. 76A05-9808-CR-410.

Court of Appeals of Indiana.

August 17, 1999.

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary L. Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiff-Appellant State of Indiana (State) appeals the trial court's grant of the defendant, Susan K. Friedel's (Friedel), motion to suppress.

We affirm.

ISSUE

The State raises one issue for our review, which we state as follows: whether the trial court erred in granting Friedel's motion to suppress all items found as a result of a search of her purse.

FACTS AND PROCEDURAL HISTORY

On December 12, 1997, Trooper Smith (Smith) of the Indiana State Police stopped a vehicle in which Friedel was a passenger. Smith stopped the vehicle with the intention of writing a traffic citation because the vehicle was being operated with only one headlight. After stopping the vehicle, Smith ran a computer check of the driver, Ryan Underwood's (Underwood), criminal history and discovered that Underwood had a number of prior charges but no outstanding warrants. Trooper Smith called for back up and Deputy Araque (Araque) of the Steuben County Sheriff's Department shortly arrived on the scene.

The vehicle was occupied by Underwood, Friedel and her child, and one to two other male passengers. One or both of the officers asked Underwood's permission to search the vehicle. Underwood asked what the officers were searching for and they responded that they wanted to see if there were any drugs or guns in the van. Underwood indicated that there was nothing in the van and consented to the search. Thereafter all the passengers exited the vehicle. As the weather was cold, Smith allowed Friedel and her child to sit in his heated patrol car during the search.

While searching the van, Araque discovered a black purse on the floor behind the driver's seat where Friedel had been sitting. There was nothing unusual about the exterior of the purse and its contents could not be seen. The purse belonged to Friedel; however, she had not consented to a search of any of her personal property and neither officer asked for her consent. Upon searching the purse, Araque discovered a black leather wallet or pouch which was closed. He opened this pouch and found five clear plastic baggies containing a white powder residue which was later determined to be methamphetamine. He then handed the purse to Smith who further searched the purse and found a leather eyeglasses case. He opened the eyeglasses case and found marijuana.

After the purse was searched, Friedel was asked if it belonged to her and she acknowledged that it was her property. Friedel was subsequently arrested and charged with possession of a controlled substance, a Class D felony, Ind.Code, § 35-48-4-7(a), and possession of marijuana, a Class A misdemeanor, Ind.Code § 35-48-4-11(1).

On June 25, 1998, Friedel filed a motion to suppress the evidence produced as a result of the search of her purse. The motion to suppress was heard on June 26, 1998, and on July 2, 1998, the trial court issued an order granting Friedel's motion to suppress. Consequently, the State dismissed the charges pending against Friedel without prejudice and brought this appeal.

DISCUSSION AND DECISION

The State appeals the trial court's order granting Friedel's motion to suppress all items discovered as a result of the search of her purse. The State argues that Friedel does not have standing to object to the search and further, that the search was constitutional and the trial court erred in granting the motion to suppress. Friedel argues that the State has waived its objection to standing and that she does have standing to bring a motion to suppress. She also claims that the State has waived the issue of whether the search was lawful under Article 1, § 11 of the Indiana Constitution. Finally, Friedel asserts that the search was unconstitutional and that the trial court properly granted her motion to suppress.

I. Standard of Review

In reviewing an appeal of the granting of a motion to suppress, we note that the State has the burden of demonstrating the constitutionality of its search. State v. Ashley, 661 N.E.2d 1208, 1211 (Ind.Ct. App.1995). Also, as this is an appeal of a negative ruling, we will reverse only when the evidence is without conflict and all reasonable inferences from the evidence lead to an opposite conclusion than that which was reached by the trial court. Id. On review we consider only the evidence most favorable to the ruling and we will not reweigh the evidence or judge the credibility of the witnesses. Id.

Here, the trial court entered an order granting Friedel's motion to suppress and included therein specific findings of fact and conclusions of law. Upon review, we accept the factual findings of the trial court unless they are clearly erroneous and the record lacks any facts or reasonable inferences to support them. State v. Voit, 679 N.E.2d 1360, 1362 (Ind.Ct.App.1997). The trial court determined that Friedel had standing to object to the search of her purse, and that the search of her purse was unreasonable under the Fourth Amendment of the United States Constitution and under Article 1, § 11 of the Indiana Constitution. The trial court reasoned that the search was unconstitutional because Friedel had not consented to the search of her purse and there was no other proper basis for the search.

II. Standing

The State argues that Friedel does not have standing to object to the search by Araque and Smith. Friedel responds that the State has waived its objection to standing because it did not raise the issue in the trial court, and further, that she does in fact have standing to object to the search of her purse.

The State concedes that it did not raise the issue of standing in the trial court. "An issue cannot be raised for the first time on appeal." McClendon v. State, 671 N.E.2d 486, 489 (Ind.Ct.App.1996). Moreover, "[w]here the prosecution has failed to make any trial court challenge to standing, the government may not raise the issue for the first time on appeal." Everroad v. State, 590 N.E.2d 567, 569 (Ind.1992) (citations omitted).¹ Hence, the State has waived the issue of standing; however, waiver notwithstanding, the State's argument fails on its merits.

In order to challenge the constitutionality of a search, a defendant must have a legitimate expectation of privacy in that which is searched. Peterson v. State, 674 N.E.2d 528, 532 (Ind.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998).

In reviewing whether a privacy expectation exists under a Fourth Amendment analysis, this Court also looks to whether the defendant has control over or ownership in the premises searched. . . . The burden is on the defendant challenging the constitutional validity of a search to demonstrate that he had a legitimate expectation [of privacy] in the premises searched.

Id. at 533 (citations omitted).

The State specifically argues that Friedel does not have standing to challenge the search of Underwood's van by relying on the proposition that because a passenger in an automobile owned by another does not have a legitimate expectation of privacy in the automobile, he does not have standing to challenge a search of the vehicle. Porter v. State, 570 N.E.2d 1324, 1325 (Ind.Ct.App. 1991) (citing Pollard v. State, 270 Ind. 599, 388 N.E.2d 496 (1979)).²

Nevertheless, the question is not whether Friedel had standing to challenge the search of Underwood's automobile, but rather whether she has standing to challenge the search of her purse which was in Underwood's automobile. "Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times." Wyoming v. Houghton, ___ U.S. ___, ___, 119 S.Ct. 1297, 1304, 143 L.Ed.2d 408, 420 (1999) (Breyer, J., concurring).

It is undisputed that Friedel was the owner of her purse and, as Justice Breyer notes, a purse often contains very personal items. Thus, a purse is clearly a container in which a person has a legitimate expectation of privacy.³ Consequently, Friedel, as the owner of the purse which was the subject of the search at issue, has standing to challenge the constitutionality of the search of her purse.

III. Fourth Amendment Analysis

The Fourth Amendment of the United States Constitution provides:

The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment protections against unreasonable search and seizure has been extended to the states through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-465 (Ind. 1998) (citing Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). "The fundamental purpose of the Fourth Amendment is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes and their belongings." People v. James, 163 Ill.2d 302, 206 Ill.Dec. 190, 645 N.E.2d 195, 197-198 (1994) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979)).

For a search to be reasonable under the Fourth Amendment, a warrant is required unless an exception to the warrant requirement applies. Berry, 704 N.E.2d at 465. The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. State v. Farber, 677 N.E.2d 1111, 1116 (Ind.Ct.A...