State v. Jorgensen

Citation526 N.E.2d 1004
Decision Date09 August 1988
Docket NumberNo. 73A01-8804-CR-117,73A01-8804-CR-117
PartiesSTATE of Indiana, Appellant (Plaintiff Below), v. Vonda JORGENSEN, Appellee (Defendant Below).
CourtCourt of Appeals of Indiana

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, John W. Mead, Pros. Atty., Salem, for appellant.

Roger D. Davis, Corydon, Kris Meltzer, Bate, Harrold & Meltzer, Shelbyville, for appellee.

ROBERTSON, Judge.

Appellant State of Indiana brings this interlocutory appeal from an order granting appellee-defendant Vonda Jorgensen's suppression motion.

We affirm.

On the night of October 16, 1986, Vonda Jorgensen called her in-laws Oliver and Betty Jorgensen to tell them her husband Michael Jorgensen, had been shot. The elder Jorgensens lived down the street from their son and daughter-in-law. After they arrived, Vonda told Oliver that Michael had been asleep in the bedroom and she had been attending to their baby in another bedroom when Michael was shot. Oliver and Betty went to the bedroom where Oliver found Michael dead. Oliver announced he would call the police, and Vonda helped him locate the number by referring to the front of the telephone book.

Deputy Sheriff James Watson arrived first in response to the dispatch. Oliver admitted Watson into the house and showed Watson where Michael's body was. At that time, Vonda was seated in the dining room. After ascertaining Michael was dead, Watson radioed for other units, the coroner and the prosecutor. State Trooper John Elmore arrived, and Vonda told him she had heard shots while attending the baby and had discovered Michael shot and the sliding glass door in the dining room open. Elmore related to Watson that earlier the previous evening, Elmore had responded to a call to the Jorgensen house where Vonda and Michael reported seeing a prowler outside their home.

Deputy Watson suggested to Vonda that she and Oliver go to the elder Jorgensen's home and wait until an officer arrived to interview her. He explained that there would be a lot of police officers, the coroner and technicians in her home and that they would be collecting evidence, taking photographs and searching the area. Vonda did not object at any time after being told the officers intended to search. Watson drove Vonda and Oliver to the elder Jorgensen's home. The search of Vonda's home was not begun until after she left. The officers admitted they did not ask Vonda's consent to search. They also did not ask Oliver's permission to search. At the time Vonda left, she was not a suspect.

A four-hour search of the house ensued and as a result of evidence discovered during the search, Vonda was implicated in her husband's murder.

Vonda filed her motion suppressing evidence of certain items seized in the search of her home. Included in these items was a Rugar .357 revolver found in a box inside a closet of the bedroom where the murder took place, a storage box containing ammunition, and handwritten notes of Vonda indicating her intent to divorce Michael. The court granted her motion, finding that Vonda had not consented to the search, that Oliver Jorgensen was not a proper person to give consent, and that the warrantless search was not justifiable. He also found that the inevitable discovery theory advanced by the State did not apply.

The sole issue on appeal is whether the trial court erred in granting Vonda's motion to suppress the evidence.

A search conducted without a warrant issued upon probable cause is per se unreasonable. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. This rule is subject only to a few established and well-delineated exceptions. Id. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Id.; Harper v. State (1985), Ind., 474 N.E.2d 508. When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that the State demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Schneckloth, supra; Sims v. State (1980), Ind., 413 N.E.2d 556. 1

Because the State bears the burden to show that the warrantless search fell within an exception to the warrant requirement, and the trial court here found against the State, the State is appealing from a negative judgment. State v. Blake (1984), Ind.App., 468 N.E.2d 548, 550. This court will accept the trial court's findings of fact and conclusions of law unless clearly erroneous, and will reverse the judgment only where the uncontradicted evidence will support no reasonable inference in favor of the ruling. Id.

The State justifies the warrantless search on Vonda's consent to the search as evidenced by her failure to object when Deputy Watson stated that police officers would be gathering evidence and searching the area. The State also relies on Oliver Jorgensen's failure to object as a basis for third-party consent. In the alternative, the State claims that because it would have discovered the evidence had it obtained a warrant, the inevitable discovery rule would validate the search.

As a preliminary matter, we note that the trial court found only that the four-hour search undertaken after the initial entry was unreasonable; in finding that the police "could determine whether a prowler was on or near the premises," it implicitly found that Watson's initial entry into the home without a warrant was reasonable. Neither party argues that the initial entry was unreasonable, and we find that under the authority of Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, the police could make a prompt warrantless search of the homicide scene area to see if there were other victims or if a killer was still on the premises.

The operative facts concerning the four-hour search are undisputed. The police did not ask Vonda for permission to search. Neither did Vonda object when the police proposed to search. The essential issue we must decide, therefore, is whether Vonda consented to the search free of duress or coercion, by her failure to object to the suggested intrusion.

The Supreme Court in Schneckloth declined to place a burden on the State to show that it had informed the person of his right to refuse consent, or that the person knew he could refuse consent. Rather, whether valid consent was given is a question of fact to be determined from all the circumstances existing at the time of the search. Schneckloth 412 U.S. at 248-49, 93 S.Ct. at 2058-59.

Also, an express consent is not a requirement for a valid consent search. Harper v. State (1985), Ind., 474 N.E.2d 508, 512. The circumstances surrounding the search may demonstrate that the party involved implicitly gave consent, by word or deed. Id. In Harper, the officer conducting the warrantless search of the defendant's home could not recall whether the defendant's spouse had verbally assented to the search. On appeal, the appellate court upheld the trial court's finding that the search was consensual because the wife was present during the search, acquiesced in it, and assisted the officer by finding paper bags in which to place the items seized. Harper, supra at 512.

Courts from other jurisdictions also have found that the defendant consenting to the search displayed more than mere acquiescence to the stated intentions of the police. In Lewis v. State (1979), 285 Md. 705, 404 A.2d 1073, 1080, the defendant Lewis called police after discovering the bodies of his wife and daughter in their home. No search was undertaken at that time, but when Lewis was about to leave town to attend the funerals, the police informed him that it would be necessary, as part of the investigation, for the police to enter the house in his absence and "go through personal papers and things like that." Lewis did not expressly consent to this, but he also did not object. However, he arranged to leave his house key with a neighbor for the purpose of giving the police access. The high court affirmed the lower court's finding that consent was given, citing that Lewis had indicated an intention to cooperate with the police and then had left the key for police to use to enter the house. The court concluded this conduct went beyond mere acquiescence.

The Supreme Judicial Court of Maine had occasion to consider the consent of defendant in a case factually similar to the instant case in State v. Fredette (1979), Me., 411 A.2d 65. The police received two calls from Mrs. Fredette, who claimed her husband had been shot by an assailant who had left the home through a side entrance. She showed police to the bedroom where her husband lay wounded. The police told Mrs. Fredette that the premises were to be searched and that officers from other departments were being called for assistance. Mrs. Fredette did not object. While Mrs. Fredette was at the hospital, she asked police to let her know if they found anything in their search of the house. While the search was being conducted, she returned to the premises twice to obtain clothing. An...

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19 cases
  • State v. Flippo
    • United States
    • West Virginia Supreme Court
    • 6 Noviembre 2002
    ...established. They are applicable where the consent is implied from actions as well as where expressly granted."); State v. Jorgensen, 526 N.E.2d 1004, 1006 (Ind.Ct.App.1988) ("The circumstances surrounding the search may demonstrate that the party involved implicitly gave consent, by word o......
  • State v. Friedel
    • United States
    • Indiana Appellate Court
    • 17 Agosto 1999
    ...consent by word or deed, it is not a requirement for a valid consent search to have the party's express consent. State v. Jorgensen, 526 N.E.2d 1004, 1006 (Ind.Ct.App.1988) (citations Here, Underwood gave consent to search his vehicle and the officers ordered all of the passengers from the ......
  • Lockett v. State
    • United States
    • Indiana Appellate Court
    • 20 Diciembre 1999
    ...bears the burden of proving that the warrantless search falls within an exception to the warrant requirement. See State v. Jorgensen, 526 N.E.2d 1004, 1006 (Ind.Ct.App.1988). The State argued at the suppression hearing and in its appellee's brief that the search was justified solely based u......
  • State v. Thomas
    • United States
    • Indiana Appellate Court
    • 26 Octubre 1994
    ...bore the burden of proof at trial to show that the search fell within an exception to the warrant requirement. See State v. Jorgensen (1988), Ind.App., 526 N.E.2d 1004, 1006. Therefore, the State is appealing from a negative judgment and on appeal must show that the trial court's ruling was......
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