*1 HALEY, Doug Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE No. 66A03-9706-CR-223. Appeals of Indiana. Court July *2 Leeman,
Kelly Logansport, Appellant- Defendant. General, Modisett,
Jeffrey Attorney A. General, Zepick, Deputy Attorney Kent D. Appellee-Plaintiff. Indianapolis, for OPINION ROBERTSON, Judge. Senior Doug Haley appeals his convictions for re- of a controlled substance and enforcement, sisting law both Class misde-
meanors, following trial. a bench people of their Miranda
Issues cers advised all five rights. review, Haley presents for our three issues as whether
which we consolidate and restate
people
As the officers escorted all five
denying Haley’s
mo-
the trial court erred
run,
Haley began
from the
but
tion to
evidence seized
stopped
him to.
when
instructed
*3
public
search of a tent at a
office,
Haley
At the Park
the officers advised
campground.
and the man and woman who had been seen
smoking
cigarette
were under
History
Facts and Procedural
and allowed the other two
13, 1995,
May
Haley
to visit his
On
went
of the tent to leave.
Park,
Tippecanoe
wife at
State
where she
Haley
charged
with
of a
camping
leaving
had been
in a tent since
substance,
felony,
controlled
a Class D
and
days
Haley paid
their home several
earlier.
enforcement,
resisting
A
law
a Class misde-
campsite
night.
rental fee for the
Haley
suppress
filed a motion to
meanor.
approximately
night,
At
three
10:30
during
the evidence obtained
the search of
conservation officers entered the Park and
testimony regarding that
the tent and
evi-
by
security guard of
were alerted
the Park’s
dence,
by
which was
the trial court.
denied
possible drug activity
Haley’s campsite.
during
Haley again
After a bench trial
which
adjacent campsite
The officers drove to an
objected
to the introduction
evidence from
and observed the tent and its
from
search, Haley
guilty
posses-
was found
their vehicle for several minutes. The tent
sion of a controlled substance as a
A
Class
“rooms,”
had two
one of which was enclosed
enforcement,
resisting
misdemeanor and
law
screen,
on three sides
and the other was
year
imprisonment
one
and sentenced to
zippered
A
enclosed
traditional canvas.
count,
suspended,
each
six months
“rooms,”
flap separated
canvas
the two
and
concurrently.
the sentences
served
flap
was tied back. The tent was lit
supplied
Additional facts will be
as needed.
lamp.
an electric
Three men and two women
were inside the tent. The officers observed
and
Discussion
Decision
one man and one woman in the screened area
sharing
cigarette,
of the tent
a hand-rolled
Haley
contends
the trial court erred
marijua-
believed the
and
to contain
denying
his motion to
evidence
na.
approached the tent and knocked
obtained
the warrantless search of the
sitting
on a bucket
outside the tent to an-
Haley
tent.
contends
State did not
presence
they unzipped
nounce their
as
satisfy
proof
its burden of
on the issue of
flaps
Haley
to the screened room.
was sit-
cause and did not show that
ting
part
back
and when
to
circumstances existed
entered,
one officer
Ha-
noticed
search.
ley put his hand under a blanket. The offi-
question
The threshold
for us is
Haley
cer ordered
not to move and another
upon
whether the officers intruded
an area in
gun
pointed
Haley.
officer drew his
it at
Haley
which
had an
Haley’s
hand was a 35mm film canister
protected under
the United States and
powdery
which contained an off-white
sub-
Const,
Indiana
methamphet-
Constitutions.1 See U.S.
stance later determined to be
Const,
IV;
I, §
amend.
Ind.
art.
11.
amine.
further search of the tent revealed
Wheth
person camping
er a
the remains of the
butt in a can of
tent erected
quantity
green leafy
campground
beer and a
sub-
is
to constitution
entitled
marijuana.
protection against
stance believed to be
The offi-
al
unreasonable search
-,
(1998),
Although
supreme
recently
our
stated
court has
118 S.Ct.
103 case, attempting camp- the tent were to leave the In such a destroy the evidence. likely cigarette, site with the and it is not be evanescent and nature must evidence’s totally would be so con- its imminent de- officers must fear in- sumed that no evidence of its existence re- that narcotics are The fact struction. alone, testimony not, does not standing amount to mained. volved does adequately explain why attempt no was made justifying a warrant- circumstances secure a to the officers to, warrant or arrest. less search entry again, the State has into the 1027 Esquerdo v. why entry made no into the (Ind.1994) (citing Harless v. prevent ciga- tent to the destruction (Ind.Ct.App.1991)). Testi evidentiary pur- preserve rette and it for suppression hearing indicated mony at the poses would the search which revealed were not aware that the methamphetamine. the film canister of presence entry until their the officers’ of evidence” the tent. The “destruction addition, Supreme In the United States consumption cigarette in the important that “an factor to Court has held normal course. determining whether be considered when the facts of this are simi- We believe case underly exigency gravity exists is the Williams, lar to those of State being ing offense for which the arrest is. upheld (Ind.Ct.App.1993), in which we rarely made.... [H]ome grant court’s of the defendant’s mo- the trial probable cause to sanctioned when there is Williams, In suppress. tion e only minor ... has offens the defendant had had information Wisconsin, been committed.” Welsh drugs possession. in his conducted 740, 753, U.S. 104 S.Ct. L.Ed.2d of the house to confirm the de- surveillance (1984). dissent, Justice White conceded presence approached the house fendant’s gravity of the offense was a factor occupants’ consent to a search. to seek the determining the lawfulness of the warrant- *6 they they When knocked and announced if, entry, less but stated that under all the officers, police they able to see the were were circumstances, probable the officers have room, and en- defendant run into another delaying procure cause to believe that to They found the tered the house. defendant or endanger warrant will result packets in of cocaine scat- the kitchen exigencies suspect’s escape, in the the the floor around him. We held that tered on though is disregarded not be the offense probable cause to because the officers had 756-64, 104 2091. Al minor. Id. at S.Ct. drugs in the defendant’s believe there were panel this court has though another door, knocking before residence ported approach, State v. Justice White’s “emergency” by the because the claimed Blake, (Ind.Ct.App. officers’ was in fact created the State 1984), in this would we believe the result case approach and was foreseeable to approach no matter which is be the same them, justi- the warrantless search was not of one of mari utilized. Possession destruction of fied the actual or imminent only for which the juana, which is the offense evidence. entering probable cause to officers had misdemeanor,3 ease, and the officers in it after the the is Likewise this they in cause to believe that were presence and en- had no officers announced their were not danger, occupants as the the tent occupants of the tent tered the tent that the of. nor presence, officers’ into a aware of the put what remained the occupants of the attempted have cause to believe nearby can and to hide beer “escape,” as there was no indica drug activity tent would officers observed the can. The intending occupants tion that of the were occupants of the tent became before campsite. If were to at had to leave the presence, aware of their and the officers leave, tempt the officers had the tent to tent its under surveillance. acted at and could have of under surveillance There was no indication 35-48-4-11(1). § Ind.Code PART, exigencies that time. The of this AFFIRMED IN situation do REVERSED IN support a warrantless oc- PART AND REMANDED. cupants’ “home.” DARDEN, J.,
Finally,
the State asserts that
concurs.
lawfully
pur
the film canister was
discovered
RUCKER, J.,
Opinion.
dissents with
suant to a search
to
incident
the arrest of the
smoking
cigarette.
individuals who were
RUCKER, Judge, concurring
part,
in
dis-
An
may
person
officer
arrest a
without a
senting
part.
“probable
warrant if the officer has
cause to
person
committing
attempt
believe the
is
or
I concur in the result reached
the ma-
ing to
commit misdemeanor
the officer’s
jority.
I
portion
take issue with that
33—1—1(a)(4).
presence-”
§
Ind.Code
35 —
majority opinion
implies
consump-
An officer need not obtain a search warrant
marijuana cigarette burning
tion of the
down
if the search is conducted incident to a lawful
represent
to a small butt did not
destruction
(Ind.
arrest. Sears v.
Accordingly, we reverse conviction of a controlled substance and remand with instructions to the trial court to
grant Haley’s motion to with re-
spect to testimony concerning evidence and film canister its contents. The trial is, respects,
court in all other affirmed.