Belvedere v. State

889 N.E.2d 286

Ind.

2008

Check Treatment

Ralph BELVEDERE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 48S05-0806-CR-370

Supreme Court of Indiana.

June 27, 2008.

889 N.E.2d 286

Taking the facts of the present case favorable to the plaintiff, as we must, we nevertheless conclude here that the injurious actions of the deputy trustee were not sufficiently associated with his employment duties so as to fall within the scope of the deputy‘s employment by the defendant Trustee. The nature of the deputy trustee‘s duties and authority differs vastly from the employee in Stropes. Other than perhaps a greeting handshake, the employee was not explicitly or implicitly authorized to touch or confine applicants for assistance. His alleged acts of confining, sexuаlly touching, and raping the plaintiff were not an extension of authorized physical contact. Such acts were not incidental to nor sufficiently associated with the deputy trustee‘s authorizеd duties. They did not further his employer‘s business. And they were not motivated to any extent by his employer‘s interests. The deputy trustee‘s injurious acts did not fall within the scope of his employment for the defendant Trustee, and thus the Trustee is not vicariously liable under the doctrine of respondeat superior.

We affirm the judgment of the trial cоurt granting summary judgment to the defendant, Camille Clark, Trustee of Pleasant Township, Steuben County, Indiana.

SHEPARD, C.J., and SULLIVAN, BOEHM, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍аnd RUCKER, JJ., concur.

that he had “been in the house approximately two days before” where he hаd seen “two pounds of marijuana.” The informant also said that “within the last few months” he had seen “up tо ten pounds of marijuana” in an apartment behind the house that was also owned by “Ralph.” Earley ran a license check on the truck parked in the driveway and learned from the Anderson City utilitiеs that the owner of the property was Ralph Belvedere. Earley placed surveillanсe on the house. On May 19, Earley seized a trash bag set out in the alley behind Belvedere‘s apаrtment. In the trash, he discovered seeds, stems, and material which were later confirmed to be from marijuana plants. Based on this evidence, Earley obtained a search warrant, and seizеd over ten pounds of marijuana.

On June 10, 2004, Belvedere was charged with Class C felony possession with intent to deal marijuana and Class D felony maintaining a common nuisance. On March 23, 2006, we decided

Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). On Oсtober 14, 2005, Belvedere moved to suppress the evidence from the trash pull, citing . The trial court denied the motion to suppress, but the Court of Appeals reversed. . The Court of Appeals held that governed this search, the search was unconstitutional under , and neither the statutory nor constitutional ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍good faith exceptions applied. . We grant transfer concurrent with this opinion.

Christopher A. Cage, Anderson, IN, Attorney for Appellant.

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

On Petitiоn to Transfer from the Indiana Court of Appeals, No. 48A05-0611-CR-669

BOEHM, Justice.

On May 17, 2002, Madison County Drug Task Force‘s Detective Kevin Earley received a tip from a confidential source about a white man “by the name of Ralph” who lived at a specified address. The source took Earley to the address and said we review de novo a trial court‘s ruling on the constitutionality of a search or seizure.

Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005). However, wе give deference to a trial court‘s determination ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the facts, which will not be overturned unless clearly erroneous. Thus, we do not reweigh the evidence, but consider conflicting evidence most favorably to the trial court‘s ruling. .

For the reasons explained in

Membres v. State, 889 N.E.2d 265, 274, 2008 WL 2554001 (Ind. June 27, 2008), also decided today, “challenges to pre-Litchfield searches that did not raise Litchfield-like claims in the trial court before Litchfield was decided are governed by pre-Litchfield doctrine.” Because Belvedere‘s challenge to this pre-Litchfield search was first raised after was decided, is not available to him in this appeal.

This trash search is governed by the law as articulated in

Moran v. State, 644 N.E.2d 536 (Ind. 1994), which looked to the totality of the circumstances to evaluate the reasonableness of a search and seizure. In , we upheld a search and seizure of garbage lеft in front of the defendant‘s house, noting that the police conducted themselves as trash collectors, did not disturb Moran or his neighbors, and did not trespass. . Similarly, in , the Court of Appeals upheld a trash search under where the trash bags were next to the mailbox, other people had trash out, and there was no indication of trespass or disturbance of the neighbors.

In this case, a confidential informant told Detective Earley about the presence of drugs, gave a name and description of Belvedere, and took him past Belvedere‘s house. Earley verified Belvedere‘s identity by running a license check on the parked vеhicle and checking utility records. Earley testified ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the trash was sitting out in an alley, presumably to bе collected, and there is no argument that Earley failed to retrieve the trash in the same mаnner as a trash collector, bothered any neighbors, or trespassed. Thus, the trash search was reasonable under the law at the time of the search.

Conclusion

The trial court‘s denial of the motiоn to suppress the evidence of the trash search is affirmed.

SHEPARD, C.J., and DICKSON, J., concur.

SULLIVAN, J., dissents, for the reasons set forth in his dissenting opinion today in

Membres v. State, No. 49S02-0701-CR-33, 889 N.E.2d 265, 2008 WL 2554001 (Ind. June 27, 2008) (SULLIVAN, J., dissenting).

RUCKER, J., dissents with separate opinion.

RUCKER, Justice dissenting.

I respectfully dissent. For reasons expressed in my separate opinion in

Membres v. State, No. 49S02-0701-CR-33, 889 N.E.2d 265, 278, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍2008 WL 2554001 (Ind. June 27, 2008) (Rucker, J., dissenting), I would apply retroactively to this case. In so doing I agree with the Court of Appeals that the search of Belvedere‘s trash was unconstitutional and no statutory or constitutional good faith exceptions apply. See .