Belvedere v. State

pay. Although Mary hers to may contingent against have had a claim Dean’s

estate, required the Indiana Code her to file that claim within three months of the published notice of Dean’s death. See I.C. (a)(1),

§§ Thus, 29—1—14—1 -7. She did not. say we cannot that the trial court erred in concluding Mary was “barred from receiving contribution from the estate to- payment [C]redit,” wards [L]ine and, therefore, that she required “is fulfill her contractual responsibility and to payments

continue to make [on Line of Credit], so as to maintain the remain- interest the real estate.”10 derman’s Appellant’s App. at say 3. Nor can we

the trial court abused its discretion in de-

nying Mary’s Petition that Dean’s estate pay monthly payments due on the Line during Credit administration.

Affirmed.

MATHIAS, J., BRADFORD, J., concur.

Ralph BELVEDERE, Appellant-

Defendant, Indiana, Appellee-Plaintiff. STATE of No. 48A05-0611-CR-669. Court of Appeals of Indiana.

Oct. 2007. brief, assert, In their pass- Children ing Appellee's [L]ine [C]redit.” Brief at 24. ing, However, that the “summary trial court's judgment the Children's assertion is without ruling should be affirmed ... but cogent extended to reasoning or authority. citation to We require further [Mary] immediately satis- therefore do not consider it. App. R. fy outstanding 46(A)(8)(a). balance under the revolv- Carter,

Steve Attorney General of Indiana, Whitehead, J.T. Deputy Attorney General, IN, Indianapolis, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE Ralph appeals Belvedere his convictions Marijuana Possession of With Intent to Deal, as a felony, Class C Maintaining and Nuisance, a Common D felony, Class following a jury trial. Belvedere raises three review, issues for our which we re- state as: 1. Whether our Supreme Court’s re- cent decision in (Ind.2005), N.E.2d 356 applies prohibits and the introduction of evi- dence at trial that was obtained fol- lowing police search of Belvedere’s trash.

2. Whether the good faith doctrine can be applied to that trash search. We reverse. AND

FACTS PROCEDURAL HISTORY May 18, 2004, On Anderson Police De- partment Detective Kevin Earley “was contacted a source” regarding “a [white male] the name of Ralph” at 2807 Mor- ton Street and Morton Street 2807½ Anderson. Def. Exh. atC 3-4. The two addresses were located on a single piece of property. The Morton Street ad- 2807½ dress, an upstairs apartment, was accessed from the rear of the house at 2807 Morton Street. A mobile home was also on that property. The source told Detective Ear- ley that he or she been in “ha[d] [apartment] approximately days two be- Christopher Cage, Anderson, IN, A. At- ... fore pounds saw two marijua- torney Appellant. na,” 4, 6-7, id. although the source vacant,” apartment pursuant from id. at seized his that the house “believed she, that he or trial court denied Belve- stated warrant. The source also 6. The months, and, trial, toup motion, saw ten his during few Belve- “within the last dere’s apartment. at the marijuana” pounds objected “any to the introduction of dere Id. evidence collected” observations or pull result of both the trash the result- Earley May On Transcript at ing apartment. search of his “[sjurveillance the house and on placed 184, 191. The court overruled Belvedere’s Id. Detective pull.” a trash also conducted objections. no presented The State other sitting the trash Earley “retrieved Belvedere, and, July against It alley way 2807 Morton. behind [sic] ½ 14, 2006, jury him convicted as and one bag trash that was out was one then charged. The trial court sentenced seeds, ... bag trash taken contained years probation. to of Belvedere a total six plant of materi- and a small amount stems This marijuana.” appeal ensued. positive al that field tested Earley mail in also found Id. Detective Ralph Belvedere

that trash addressed AND DECISION DISCUSSION Street. at Morton 2807½ of Review Standard Earley inquired with the then Detective regarding the ad- company local utilities that the trial court Belvedere contends that the 2807 He informed dresses. it the introduction of permitted erred when vacant, likely address was Morton Street Earley’s from evidence seized 2807 n occu- address seemed although subsequent trash warrant that pull and Earley also confirmed pied. Detective found was issued on the basis evidence identity that location after is chal- in that trash As Belvedere pull. a truck performed he a license check on following evidence lenging the admission of driveway. in the parked property’s in an interlocu- his rather than conviction tory issue is whether the trial May Earley requested appeal, and re- On by admitting for the house and a search warrant its discretion ceived court abused tips on “the source’s apartment Bentley based 846 at trial. evidence records, ..., ..., utility pull the trash (Ind.Ct.App.2006), trans. N.E.2d Id. at 8. That the license checks.” [and] A court is afforded broad trial denied. day, police executed the warrant and same admissibility ruling on the discretion people apartment, five inside found evidence, ruling a and will reverse such we recog- The officers including Belvedere. discre- only showing a of an abuse of upon and, burning marijuana nized the smell a An of discretion involves tion. Id. abuse filled mari- finding container with after a clearly against logic decision is officers arrested juana apartment, and circumstances and of the facts effect Belvedere. Id. before the court. 10, 2004, charged the State On June matter, an the issues Bel- As initial marijuana possession with Belvedere appeal, and the State’s raises on vedere deal, felony, C with intent as Class law responses, proper around revolve nuisance, maintaining common Earley’s May to Detective to be trial, Belvedere felony. D Prior to Class of that At the time 2004 trash search. police suppress the evidence moved I, search, 11 of the Indiana Article Section from his trash seized held, police to search Supreme allowed As our Court has Constitution1 indiscriminately, long firmly that[ so as the man is established ‘a “[i]t ] trash new for the conduct of criminal prosecutions of the search was is ner reasonable. See (Ind. cases, applied retroactively to be to all N.E.2d Moran v. 1994). federal, However, 24, 2005, pending state on direct review on March sub final, yet or not with no exception for cases sequent to Detective trash in which the new rule constitutes a “clear final, but before Belvedere’s case became Smylie with the past.’” break” our Court announced Litchfield. (Ind.2005) (quoting Litchfield, Court changed 314, 328, 107 v. Kentucky, 479 U.S. Indiana’s constitutional jurisprudence, Griffith (1987)). S.Ct. L.Ed.2d holding part require in relevant that “a Grif fith, the Supreme Court of the United suspi ment of articulable individualized holding by reasoning, States reached that cion, essentially required the same part, “hardly comports with the automobile,” ‘Terry an stop’ impos justice ideal administration of with appropriate es the constitutional standard even when chance hand[] one beneficia in trash Litchfield, searches. ry lucky individual whose case was —the announcing chosen as for the occasion Thus, appeal on Belvedere maintains new principle enjoys retroactive applica — that must apply retroactively Litchfield tion, while similarly others situated have hand, exception. and without On the other adjudicated their claims under the doc old the State that contends does not Litchfield 327, Griffith, trine.” 479 U.S. at or, apply retroactively alternative, in the omitted). (quotations 708 Both Griffith exception applies that an to Detective Ear- Smylie and appli involved the retroactive issue, ley’s particu- search. latter The cation a new rule of federal constitution lar, diversity opinions has led to a from al law. this court. argument We address each Similarly, Supreme our Court has held turn. that a new rule of evidence applies retroac Retroactivity Issue One: of Litchñeld tively to all criminal prosecutions in which

Belvedere first maintains Detective issue “properly preserved was ... Earley’s search was unconstitutional pending [and under the case on ap was] direct responds by arguing peal” State at the time the new rule announced. Litchfield. “pre-Litchfield State, governs law still 973, this Pir nat v. 607 N.E.2d (Ind.1993). Appellee’s case.” Brief at 8. holding, We must 974 In so our Su agree with preme Belvedere. Court determined that those defen- I, 1. Article 11 of governmental Section the Indiana Constitu- search Indiana provides, part, tion in relevant that “[t]he Constitution turns on evaluation of the right people per- to be secure in their police reasonableness of the conduct under sons, houses, effects, papers, against un- totality of the circumstances. Moran v. seizure, reasonable or shall not be State, 536, (Ind.1994).... 644 N.E.2d 539 Supreme violated.” As our Court has stated: totality We believe of the circum- Although language tracks the Fourth requires stances consideration both the [of Amendment the United States Constitu- degree subject’s of intrusion into ordi- verbatim, explicitly reject- tion] Indiana has nary upon activities and the basis which the expectation privacy ed the [test under the subject officer selected the search or U.S. Constitution] as a test of the reason- seizure. of a ableness search or seizure [under the Litchfield, 824 N.E.2d at 359. legality Indiana Constitution]. The of a property of defendant’s of review warrantless search the benefit “receive dants should 2003, 14, January did violate the for the reason new rule basic under the Constitution under the Indiana merely ought penalized not be they Litchfield State, v. analysis); Trimble 842 N.E.2d case as pending another we chose because (Ind.2006) (same February 803-04 change.” announcing the the vehicle for search); State, Myers 839 N.E.2d Id. (Ind.2005) (same 1146, 1152-54 for March Supreme our maintains that The State search). court has done the This appli in Smylie is not Court’s declaration See, e.g., same. Richardson cable here because “[b]oth Griffith 1097, 1105 (Ind.Ct.App.2006), N.E.2d applica Smylie were concerned with the Harmon, denied; State v. trans. pro new rule of criminal tion of a federal (Ind.Ct.App.2006), N.E.2d 1059-60 ... constitutional [and not] cedure state denied; Turner, trans. 843 N.E.2d rec Appellee’s Brief 8-9. We issue.” 2; n. Edwards v. has Supreme that our Court ognize (Ind.Ct.App.2005); Crook v. it believes the explicitly stated whether 643, 646 (Ind.Ct.App.2005).2 retroactivity rale should Griffith Thus, all applies to cases developed procedure of criminal new rules final, yet “pending on direct review not Indiana Nonethe under the Constitution. at the exception,” with no time less, recognized, Court has N.E.2d at Smylie, was decided. See Court, for the same reasons as Griffith 687; Pimat, Here, it 607 N.E.2d at 974. nearly identical retroactive undisputed that case was of new of evidence. We rules “not yet final” when our retroactivity why stan see no reason Smylie, See 823 announced to a rule of Indiana applicable dard new Litchfield. And, again, at 687. an- N.E.2d different any constitutional law should be Litchfield law rule of constitutional nounced new a new than the retroactive of prosecutions. to criminal See relates See, Turner e.g., rule of evidence. Indiana Turner, at 942. It is also not 843 N.E.2d (Ind.Ct. State, 937, 2 843 N.E.2d 943 n. v. pre- disputed properly that Belvedere App.2006). Thus, for this our review. served issue specific In context of retroactive be to Belvedere’s must Litchfield Litchfield, Supreme our application of case. consistently, albeit without dis- has Court of Earley’s search Bel- retroactivity, applied Detective of cussion Litchfield trash the Indiana Consti yet final was vedere’s violated to when cases State, Again, in See, order v. 847 tution under e.g., Holder decided. Litchfield. (Ind.2006) Earley 930, for to conduct lawful (holding, Detective N.E.2d 940-41 search, to an that he have “articulable retroactivity, of needed without discussion However, 174, (Ind. 1996). addition, court, analysis, ap our 175 without opinion in retroactively yet has issued an either plied in two cases in Court such, granted As our discussion recently those cases. which State, that we does not mean v. 867 N.E.2d Bowles Membres See Bowles transfer. (Ind. give any precedential value. Ct.App.2007), granted; opinions those trans. 251-52 Rather, State, (Ind. merely opinions to we those mention v. 851 N.E.2d Membres give legal on the granted. granting framework "Upon context to Ct.App.2006), trans. transfer, by raised the facts of instant case. issues petition to the decision Duncan, See, e.g., Bd. v. Barnell Appeals held Sch. Trs. is deemed vacated and Court of (Ind.Ct.App.1997). N.E.2d n. naught.” v. McGowan suspicion, essentially light here, individualized of the record we must ‘Terry tip conclude that “the this case required stop’ same as is an was completely lacking in indicia reliability Litchfield, 824 N.E.2d at automobile.”3 and the record offers no tipa from a confidential infor 364. Where reliable; confidential informant was the tip lacking in “completely mant is indicia was, therefore, inadequate support to an reliability the record offers evi no Thus, investigatory stop.” Id. at 119. that the confidential informant was dence Earley’s Detective searching rationale for reliable!,] tip ... inadequate [is] Belvedere’s trash did not rise level an investigatory stop.” support [such] of an suspicion, “articulable individualized N.E.2d Johnson essentially the required same as is for a (Ind.1995). ‘Terry of an stop’ automobile.” See Litch Here, Earley’s search Detective of Bel field, Accordingly, 824 N.E.2d at 364. exclusively was vedere’s trash based on search rights violated Belvedere’s under Earley information Detective had received the Indiana Constitution and all evidence search, from a “source.” derived that illegal confidential See Def. from including However, pursuant Exh. C at evidence obtained tip 3-4. warrant, subsequent search be

completely lacking reliability. sup must indicia of pressed exception unless to the exclu merely The source identified Belvedere’s sionary id.; can applied. be See race, residence, gender, and and that he or Johnson, 659 N.E.2d at 120. she believed the house below Belvedere’s apartment to be vacant. But that Exception informa Issue Two: Good Faith easily tion was many knowable mem though Even rights general public bers of the and therefore is violated, the Indiana Constitution were not indicative of the reliability. informant’s evidence gathered from Jaggers 183 search of Belvedere’s trash may be admis- (Ind.1997) (“If any anonymous caller’s alle if in good sible obtained faith. The gation, uncorroborated anything be to Indiana’s constitutional yond public knowledge, justify could a prohibitions on evidence from an resulting search, every citizen’s home would fair illegal search or compo- seizure has two game variety for a of nents, innocent and not so a component constitutional and a intrusions.”); Johnson, innocent statutory component. 659 See Hopkins v. at 345, (Ind.1991); N.E.2d 119. The informant also 582 N.E.2d stated 351 see (2004) § that he or also Ind.Code (“good she had been inside 35-37-4-5 statute”). faith apartment State maintains and had seen that various amounts apply both here. marijuana. However, of the informant provide failed to Earley with consensus, While there has been even if important pieces information, several of explicit, applies retroac- Litchfield notably most details of future acts Bel- tively, the same applica- cannot be said for vedere, that would infor demonstrate the of good tion the in faith doctrine such knowledge mant’s of Belvedere’s activities Specifically, circumstances. this court has provide officers “the tools with which split on whether suppression of the evi- verify tip’s] to dependability.” [the See necessary dence is when an officer has Johnson, 659 N.E.2d at 118-19. in good relied faith aon search warrant dispute 3. There is Earley no that Detective the same manner as a trash collector. See retrieved substantially Litchfield, Belvedere's trash in 824 N.E.2d at 363.

359 good the faith pre- statutory aspects of doc- from on evidence that was based trine. example, For one trash search. Litchfield an offi- has held that of this court

panel Faith Constitutional Good a warrant did not reliance on such cer’s good Indiana’s constitutional good aspect of satisfy constitutional the exclusionary exception faith the rule is to 851 N.E.2d faith. Membres identical to the federal an granted. (Ind.Ct.App.2006), trans. by the nounced the good faith opinion did not discuss the That Leon, in United States United States J., (Bailey, at dis- id. 994-96 statute. See 104 S.Ct. 82 L.Ed.2d U.S. panel has held that senting). And another (1984). Hopkins, at See 582 N.E.2d be ap- could not good the faith doctrine the 351. Under constitutional right “a to had plied because defendant exception, suppression of evidence under promul- rule invoke a new constitutional exclusionary only rule is if: appropriate Turner, [S]upreme gated [C]ourt.” (1) magistrate judge issuing or Smylie, 2 (discussing at 943 n. warrant was misled information 687). N.E.2d at that the affiant knew was false or affidavit except for his would have known was false this court have also panels But other (2) truth; disregard reckless ap faith doctrine does held that the wholly issuing magistrate abandoned his from pre-Litch- seized ply evidence (3) role; judicial sup the affidavit neutral example, For one trash search. field lacking was so indi- porting the warrant that, although held panel has official probable cia cause to render policies underly retroactively, the entirely in its unreason belief existence exclusionary rule ing demonstrated (4) able; facially warrant so defi require suppression that that rule did not executing cient officers cannot seized evidence. Bowles v. illegally Leon, reasonably presume it be valid. (Ind.Ct. N.E.2d 251-52 is, at 104 S.Ct. 3405. That And other App.2007), granted. trans. the Indiana doctrine under good faith held that the stat panels have permits to admit evi Constitution courts admitted permits ute illegally that has seized when dence been Richardson, trial. 848 N.E.2d at at See “objective police acted in faith.” Harmon, 1059-60; 1105; N.E.2d at Leon, 907-08, 468 U.S. Edwards, 1077. maintains Accordingly, State exclusionary “the we hold that must Because purpose Appel- here.” ... serves no retroactively, hold that we likewise lee’s Brief 9-10. any application of the faith doctrine the must take into account constitutional State. In- cannot with the agree We in deed, announced To standards Griffith, the Court Litchfield. deny his

hold otherwise would Belvedere the rejected posi- expressly United States a constitutional rule right “to invoke new in federal constitutional change tion that a similarly [S]upreme situ- promulgated applied [C]ourt.” law not should 2; Turner, Specifical- n. see 843 N.E.2d ated in other cases. See defendants Pimat, rules of feder- ly, at 974. Nonethe- held that new also that Court retroactively less, panels apply have al law as of this court constitutional various in which the exception for cases differently, we ad- “with no approached issue a break’ with new rule constitutes ‘clear of constitutional and application dress the (1979). 327-28, Griffith, the 479 U.S. at past.” Similarly, 61 L.Ed.2d 343 al 708; Pimat, accord though unwilling S.Ct. the Court has been such, the State’s position at 974. As conclude that new Fourth Amendment does exclusionary not mis- always the principles only are to have pro effect, the issue. The question spective characterizes United v. States John faith, police son, acted in good 537, 560, 102 not whether the 2579, 457 U.S. S.Ct. (1982), but Belvedere has recourse to a whether L.Ed.2d 202 no Fourth Amend new rule of substantive law. constitutional marking ment decision “clear break Turner, 2; 843 N.E.2d at See 943 n. see past” with the has been retroac Richardson, also 848 N.E.2d at 1105-07 tively. Peltier, States v. United J., is, (Najam, dissenting). 531, That the 2313, U.S. 95 S.Ct. 45 L.Ed.2d 374 argument ignores (1975); States, the State’s retroactive Desist United 394 U.S. 244, effect of 1030, 89 S.Ct. 22 L.Ed.2d 248 Litchfield. (1969); Walker, Linkletter 381 U.S. with Agreeing the dissent 618, 85 S.Ct. 14 L.Ed.2d 601 negate maintains “we should ... [not] (1965). propriety ap of retroactive textbook plication newly of a announced Fourth exception so that a question retroactivi- moreover, principle, Amendment has ty Slip op. is rendered relevant.” 1at n. 1. largely been assessed in terms of the Rather, any “even though pre-Litchfield, retroactivity might contribution make to Morcro-compliant pull unsupported trash police the deterrence of misconduct. suspicion reasonable would run afoul of Johnson, supra, United States v. at 560- I, Article Section pull fruits of the 2579; 102 S.Ct. United States v. always would be admissible virtue of Peltier, 536-539, 542, supra, at faith exception.” Id. The dissent also inapposite asserts that Leon is

was a place, search-warrant case. Leon, its 911-13, 468 U.S. at 104 S.Ct. 3405 proffers DeFillippo, dissent State v. (footnotes omitted). But again, the sub- S.Ct. 61 L.Ed.2d 343 sequently opinion, decided the Su- Griffith (1979). preme clearly backed off that lan- guage, holding that “a new rule for the

Relying on DeFillippo maintaining criminal prosecutions conduct of is to be exception trumps cases, applied retroactively to all state or prevailing substantive rules of constitution- federal, pending direct review ignores al law of retroactivity the rule final, yet with no for cases in announced in Specifically, in Griffith. which the new rule constitutes ‘clear Leon the Court discussed DeFil- break’ with past.” Griffith, 479 U.S. at lippo as follows: 328,107 Thus, S.Ct. 708. insofar as DeFil- The same attention to the purposes un- lippo supports proposition that we derlying exclusionary rule also has ignore should effect retroactive characterized involving decisions not Litchfield, position is inconsistent scope the rule itself. We have with the Supreme subsequent Court’s required suppression of the fruits opinion Griffith. incident to arrest made in good-faith on a puts reliance substantive proverbial It the cart before the criminal statute that subsequently is de- good horse to use the exception faith clared unconstitutional. Michigan application avoid of a newly announced DeFillippo, 443 U.S. 99 S.Ct. rule constitutional law. flaw The inher- (a) ..., prosecution a crime the even In that not approach in is such ent may grant had benefit a motion to exclude have the court Litchfields would the in their case.4 grounds rule announced on the that the search of the new evidence Indeed, extreme is logical to its carried the or seizure which evidence was new rule search and unlikely any that if obtained was unlawful the evidence applica- have law could retroactive seizure by a law enforcement offi- was obtained the new tion, including case in which the good cer in faith. But insofar as the new rule is announced. (b) section, purposes For evi- defendant, both original the

rule benefits dence is obtained a law enforcement and Court good officer faith if: that require States United (1) similarly 'pursuant It is to: well obtained applied to be benefit more, those defendants. Once situated recognized “hardly that it each

courts have administration with the ideal of comports (B) statute, judicial A state ] even when one justice hand[ with an rule precedent, or court that later lucky individual beneficiary chance —the unconstitutional or otherwise declared was chosen as the occasion whose case invalidated; and principle enjoys ret- announcing new — similarly application, while others roactive (2) officer, enforcement at law adjudicated un- claims situated have their evidence, obtains the has the time he Griffith, 479 U.S. at the old doctrine.” der minimum train- applicable satisfied basic omitted); (quotations by rules ing requirements established Pimat, 974. see training law adopted enforcement that Again, we must conclude 5-2-1-9. under IC board retroactively applies added). § In (emphases I.C. 35-37-4-5 exception faith must take good of the words, pursu- other if evidence is obtained It that on into account. follows judicial precedent subsequently ant to a Earley’s reliance on these facts Detective statute, unconstitutional, then, by declared com- tip informant’s the confidential good faith was obtained reliability, ren- lacking in indicia of pletely therefore, is, admissible. in its dering belief existence his official Hence, unreasonable Litchfield. statute, good faith light is appropriate of the evidence suppression that the evidence obtained State contends test. prong of Leon under the third Earley from Belvedere’s by Detective Leon, 923, 104 3405. S.Ct. admissible, later de- trash is as Litchfield Statutory Faith Good Earley relied clared the law Detective re- upon Belvedere unconstitutional.5 Indiana, good faith statute sponds applying has been codi exclusionary also rights guaranteed to him would violate Specifically, faith statute. fied the Indiana Constitution. to him under provides, in relevant faith statute agree with Belvedere. Again, we must part: legality of does not contest the say excep- Belvedere not to that the 4. This is trash under his Litch- been to the tion could have Moran, rather, on trash fields; stated the law which any application must have such searches in Indiana before incorporated the new rule of case. Litchfield. 362 good equity Supreme

The faith statute cannot be and our precedent Court’s in similar Griffith, A situations. to these facts. rule of constitu See 479 applied 327, 708; Pirnat, at U.S. negated by 607 cannot be statute. tional law here, N.E.2d at 974.6 If it applied the § 1-1-2-1. And to the apply See I.C. good distinguish faith statute would be negate statute would good faith here both Litchfields, the lucky tween who were holding in Supreme our Court’s Litchfield enough to be the first to defendants reach court require ignore and also to the Court, Belvedere, Supreme our who of the weight authority on issue of Litch- lucky. arbitrary was not so Such dis retroactivity. As an field’s “solely tinction is based the fortuities [on] law, a new rule of nounced constitutional judicial process.” Griffith, of the See 479 nullify good the faith statute cannot 327, 107 at 708. S.Ct. application. rule’s retroactive persuaded by We also are not Conclusion argument good State’s faith sum, In we decline to hold that Litch- applies statute for another It reason. Belvedere, does apply person not to field province judiciary of the to determine similarly-situated to the Litchfields and admissibility Camp evidence. See whose case “pending was on direct review Shelton, (Ind. 495, bell v. 727 N.E.2d 500 yet or not final” at the time Ct.App.2000), denied. exclu trans. Smylie, decided. 687; See 823 N.E.2d at and, sionary rule is a as Pirnat, Hence, 607 N.E.2d 974. Litch such, a statute cannot divest our must analysis be our of the field authority Court of its to determine that constitutionality operation Indeed, rule’s and effect. reviewing trash. where, here, a “conflict exists [between that search Litchfield, we conclude evidence], a statute and a rule of con I, search violated Article Section flicting statute is nullified.” v. Humbert Constitution, 11 of the Indiana and that Smith, (Ind.1996) (ci 664 N.E.2d 357 Indiana’s good constitutional faith excep omitted). tation procedure, “Rules of in tion cannot save the evidence seized evidence, cluding rules of established that search. prevail any [our over stat Court] alsoWe hold that has “a right Belvedere ute.” Harrison v. 644 N.E.2d to invoke a promul new constitutional rule (Ind.1995), superseded n. part gated by [S]upreme [C]ourt.” See grounds other statute. Turner, 843 N.E.2d 943 n. 2 (discussing

Finally, application 687); Smylie, 823 N.E.2d at see also Pir nat, statute would principles undermine 974. Accordingly, N.E.2d at argues applying 35-34-1-4, -6; Belvedere §§ unconstitutional. I.C. I, faith statute here would violate Sec- Wiggins Article (Ind.Ct.App. 727 N.E.2d Constitution, tion of the Indiana which 2000). However, constitutionality "the of a provides Assembly that "[t]he General shall may stage any statute be raised at of the citizen, citizens, grant any not to or class of proceeding.” Morse which, privileges or upon immunities (Ind. 1992); County see James v. Pike Of terms, equally same belong shall to all Children, Family & fice of responds citizens.” The State that Belvedere event, (Ind.Ct.App.2001). any we right challenge has waived his the constitu- need that issue reach as we hold that the tionality faith statute because he good faith statute does not on these did not file a motion trial dismiss facts. alleging court statute I applies in this Consequently, cannot case. good exception faith statutory in respects. would affirm the trial court all vitiate Belvedere’s here as it would promulgated new rule to invoke the right Exception A. Law Good Faith Case Thus, all evidence by our Court. The Indiana first Supreme Court trash from Detective seized adopted exclusionary the rule in Callender search, pur- seized the evidence including 91, 96, Ind. N.E. warrant, subsequent the search suant to (1923), prop- it the “[i]f which held from Belve- have been excluded should erty by secured search and seizure was was trial. As no other evidence dere’s warrant, pretext the a search of con- the introduced reason, any which invalid then the was for must be reversed. victions not as property so seized could be used and its ad- against appellant Reversed. objection prejudicial mission his over error.”8 In the United States Su- MATHIAS, J., concurs. the so- preme firmly established BRADFORD, J., separate dissents with faith exclu- “good exception” called opinion. in the of war- sionary rule context rants, marginal nonex- holding that “the

BRADFORD, dissenting. Judge, produced by suppressing istent benefits abstract, in the with the agree, IWhile objectively evidence obtained in reasonable Indiana conclusion that Su- majority’s invalidated subsequently reliance on preme Court’s decision justify search warrant cannot the substan- Litchfield (Ind.2005), Leon, applies 824 N.E.2d 356 tial of exclusion.” costs dissent, retroactively,7 The Leon court iden- respectfully I must 104 S.Ct. 3405. however, situations, where good exception tified several that the faith as I conclude not, law. This is happens, appli- substantive constitutional a curious result of 7. As it true, although, ex- strictly speaking, as I good exception in of faith this cation above, plained it that it would do him is true question of retro- is that it renders the context my adopted. moot, good here view be little were application least active Litchfield sense, might suppose, I in a that it be consid- words, purposes. In other even his were to benefit from ered unfair Morarc-compliant any though pre-Litchfield, Belvedere's, being but case decided before suspi- pull unsupported reasonable trash "fairness,” believe, inadequate basis I is an I, Section would run afoul Article cion any questions. upon to decide such which pull always would be admissi- the fruits event, just easily argue that it is could one exception. virtue of faith ble more) (or confer equally even unfair to cases, end, at in criminal least in a case a convicted criminal windfall on may retroactive because its as well not be agree that no official misconduct where all help application will never retroactive occurred. (whether help in of a civil might the context course, is, question for an- rights action ap- Interestingly enough, passage, as it majority day). cites this result as other The pears database the www.westlaw.com reason that one Publishing’s printed Eastern in West North here, but I do not believe should Reporter, the word includes a comma after negate to be a we should what I believe appear offi- in the "appellant” that does excep- of the textbook only Reports. While can cial one Indiana retroactivity is question ren- tion so point of this speculate at this as to source dered relevant. error, error not seem and while the does one, I, applica- passage, majority meaning also concludes to alter the citing non-official here would will exercise caution faith doctrine tion authorities in future. deny to a new rule of Belvedere recourse appropriate, still good be in- therefore conclude that faith exclusion would ex- ception apply. a warrant based should cluding where is “on an in lacking probable indicia of affidavit ‘so Statutory Exception B. Good Faith render official belief in cause as to its ” 35-37-4-5(b)(l)(B) Indiana section Code Id. entirely unreasonable.’ existence provides may sup- not be omitted). (citation 923,104 S.Ct. pressed if “it is pursuant obtained to ... a that, majority The concludes because statute, judicial state precedent, or court on the reliance confi- rule that later is declared unconstitutional tip in lacking dential was indi- informant’s majority otherwise invalidated[.]” reliability, suppression appropriate cia of is concludes that Indiana section Code 35- view, however, Leon, under Leon. my as 37-4-5(b)(l)(B) negates a “rule of constitu- case, simply a search does warrant 1—2—1, tional law” in violation of section 1— As it happens, here. declares, which in part, that “[t]he law already a recognized good Court had faith governing this state ...: is First. The exclusionary exception rule in situa- Constitution States and United tions like much the one before this court this state. Second. All statutes of the Michigan DeFillippo, today. general assembly force, of the state and 61 L.Ed.2d 343 not inconsistent with such constitutions.” on which the Leon court (1979), relied, Having concluded that pull trash Supreme Court noted that DeFillippo, evidence is admissible I purpose exclusionary [t]he rule is would not even question reach the police deter unlawful action. No con- whether Indiana Code section 35-37-4-5 purpose ceivable of deterrence would be violates the Indiana I agree Constitution. which, served suppressing evidence with majority that “Indiana’s constitu- at the it was the person time on found tional faith good to the exception exclu- product the respondent, was the aof sionary rule is identical federal ex- arrest search. To lawful lawful eeption[.]” I further believe that Indiana police enforcing deter from a presump- Code merely section 35-37-4-5 codifi- tively valid statute never remotely was good cation of exception faith as de- contemplation of even the most words, scribed in case law. In other zealous exclusionary advocate of the 35-37-4-5(b)(l)(B) Indiana section Code rule. applies to cases like this one and those Id. at 38 n. 2627 (emphasis DeFillippo, involving S.Ct. described in searches added). This directly situation is analo- that were when legal they performed, were gous case, and, such, but, to the instant point afterwards, I at some declared believe DeFillippo governs, not the war- otherwise.9 Because I agree rant-specific rules of Leon. DeFillippo’s Indiana faith good exception is coextensive application leads to the conclusion that the with exception the federal faith exception applies here. Be- conclude that Indiana section Code 35-37- all agree pull cause the trash here 4-5 is merely codification of well-settled legal performed, area, when was no con- case law in that the existence of such ceivable purpose of deterrence would be is essentially codification irrelevant. We fruits, served suppressing subject DeFillippo its and I would to the hand, Leon, i.e., 9. On the other Indiana Code section those described faith reli- 37—4—5(b)(1)(A) applies facially to situations ance like valid search warrants. 5— (for le- searches that were if section 35-37- performed) even gal when such, I never been enacted. As

4-5 had to address its constitution- little reason see ality. Indiana, Appellant-Plaintiff,

STATE PENWELL, Appellee- Christine

Defendant. No. 29A02-0704-CR-328. Appeals of Indiana. 23, 2007.

Oct.

Case Details

Case Name: Belvedere v. State

Court Name: Indiana Court of Appeals

Date Published: Oct 23, 2007

Citation: 875 N.E.2d 352

Docket Number: 48A05-0611-CR-669

Court Abbreviation: Ind. Ct. App.