State v. Jorgensen, No. 73A01-8804-CR-117

• Docket Nº: No. 73A01-8804-CR-117
• Citation: 526 N.E.2d 1004
• Case Date: August 09, 1988
• Court: Court of Appeals of Indiana

Page 1004

526 N.E.2d 1004 STATE of Indiana, Appellant (Plaintiff Below),
v.
Vonda JORGENSEN, Appellee (Defendant Below). No. 73A01-8804-CR-117. Court of Appeals of Indiana,
First District. Aug. 9, 1988.

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,

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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

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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...