*1 and remand for new reverse therefore
trial. and remanded.
Reversed SHARPNACK, J., NAJAM, J., concur. III,
George Appellant- MEMBRES Defendant, Indiana, Appellee-Plaintiff. STATE No. 49A02-0511-CR-1065. of Indiana. Appeals
July Rehearing Denied Oct. *2 Hammerle, Allen,
Robert D. W. Steven Allen, Cleary, Joseph M. Hammerle & In- IN, dianapolis, Attorneys Appellant. for Carter, Attorney Steve General Indiana, Whitehead, Deputy Attorney J.T. General, IN, Indianapolis, Attorneys for Appellee.
OPINION
KIRSCH, Judge. Chief George appeals Membres III the trial order, finding court's that the seizure of done to a property pursuant was lawful therefore, was subject to be turned over to federal au- issues, He raises two of which thorities. dispositive: find we one whether articulable, had searching activity prior eriminal Mem- bres' trash.
We reverse and remand. AND
FACTS PROCEDURAL HISTORY 2005, Deputy Seott Wildauer March County Depart- of the Marion Sheriffs assigned ment to the Safe Streets was Force, joint task force Task which was FBI, Depart- Police Indianapolis with the ment, Police Speedway Depart- and the responsibilities ment. in- force included narcotics with task in- vestigations. At that he was pos- into ongoing investigation in an volved North Flame drug trafficking sible at 5108 which the resi- Indianapolis, the transfer of Way 5(j), which authorize would $57,060, investiga- jewelry, and the firearms During the dence of Membres. authorities, tion, received informa- and the order was to federal Deputy Wildauer who was a confidential informant signed by tion from the trial court. Membres moved *3 selling that Membres was "pretty sure" to stay suppress of that order and granted trial court a Tr. at 19. marijuana the evidence. The of his residence. out Deputy informant told Wildauer order, suppres- and a stay of the turnover large quantities of dealing was Membres 27, hearing May was held on 2005. sion suspected it marijuana, and the informant the trial court September On Depu- Id. twenty pounds. in of was excess suppress motion to and denied Membres' informant in the ty had used this Wildauer stay further ordered a on the turnover times, forty fifty to and al- past at least pursue ap- Membres to order to allow exactly could not recall how though he charges At no criminal peal. this from the infor- many convictions resulted against have been filed Membres. He now informant, by the he supplied mation be- appeals. more than lieved that it was three convie- Additionally, a tions. vehicle AND DISCUSSION DECISION drug another dealer under associated with of Our standard review for by Deputy had investigation suppress a motion to is well denial of been seen at Membres's residence. in rulings settled. review such a simi 18. sufficiency lar manner to other matters. information, Deputy Based on this Wil- Carroll v. 822 N.E.2d Membres' trash on March dauer searched reweigh (Ind.Ct.App.2005). We do bags He recovered the trash on 2005. evidence, conflicting and consider evi we day for trash and the normal collection ruling. dence most favorable to the Id. stepping property. without onto Membres' However, sufficiency typical unlike reviews search of the four trash Deputy Wildauer's only to where the evidence favorable bags yield taken Membres' residence from considered, judgment is we must also re marijuana twenty-five ed burnt ends of evidence that is fa view the uncontested cigarettes, green vegetation suspect loose vorable to the defendant. Id. marijuana, plastic baggies ed to be four trial court argues Membres off,1 empty pack torn and with the corners denying suppress his motion to erred ages rolling papers. Mail addressed to the evidence from the search of his home. Way Membres at the Flame address was specifically rights that his He contends also recovered from the trash. Based on I, under Article 11 of the Indiana Section the evidence found Membres' Deputy Constitution were violated because a State obtained search warrant and through Wildauer searched his trash with- per search of Membres' residence was suspicion. out reasonable During formed on March $57,060 marijuana, found I, Article Section reads as fol cash, large jewelry, amount of and lows: four firearms. people to be right secure houses, 5, 2005, papers, April persons, the State filed a motion their and ef-
On feets, against unreasonable search for a turnover order under IC 35-33-5- through plastic baggies package Wildauer testified that were used narcot- training experience he knew that these ics. Tr. at 20. seizure, violated; pected it of twenty pounds. not be and no excess shall issue, upon probable but Id. Wildauer testified that he had shall warrant affirmation, cause, past oath or used this informant in the more than supported times, describing place forty he particularly fifty but could not re- searched, thing person and the exactly many be member how convictions had past be seized. resulted from the information. 17. He that he stated believed that it was legality governmental "The more than three. Id. at 17-18. Addition- turns on an the Indiana Constitution under ally, Deputy previously had nev- of the evaluation of the reasonableness er used informant as a basis for totality under the police conduct *4 search warrant. circumstances." (Ind.2005). Litchfield, provide any The informant did not infor- that it is not Supreme our Court held regarding specific, impending mation a police to indis- reasonable for the search any crime or information that could be criminately through people's trash. police. the corroborated There was no 863. In order for a search or seizure time on given by frame the information the reasonable, trash to be two re- person's informant. The information was not based First, must be met. quirements any activity by on observations of eriminal substantially the must be retrieved informant; only Deputy he told Wil- same manner as the trash collector would that that "pretty dauer he was sure" Mem- Second, the officer must use. marijuana in dealing bres was an unknown suspi- individualized possess articulable, twenty quantity pounds. excess of The cion, essentially required the same as that only provided suspicions informant on "Terry stop" of an automobile. Id. at activity occurring the criminal at Mem- Further, although Depu- bres' residence. Here, that the dispute there is no ty that the informant Wildauer testified placed along pick the street for trash was provided was credible and reliable and had is, collector. There how up forty fifty information over to times in the ever, Deputy as to whether many past, it was unclear how times to suspicion had reasonable Wildauer convictions, information had resulted Deputy Membres' trash. If Wil- search it than only that he believed was more to suspicion dauer did not have reasonable testimony was Deputy three. legally he could not have credibility of not sufficient to establish marijuana found the evidence in the trash Although he stated that he the informant. could not have used that evidence to times, forty fifty had used the informant cause for the search probable establish informant as the he had never used the residence. warrant of Membres warrant, and the infor- basis for a search case, only to convictions on an received mation had led Deputy In this unspecified informant number which information from confidential was more than three. The informant had seen another sus- dauer believed that the pected drug dealer Membres' residence only that can be drawn is that conclusion the informant was shown to be eredible "pretty that the informant was sure selling marijuana" out of Mem- three, they were of times more than some number bresg' forty fifty. specu- are left to Tr. at The informant out of We residence. credibility of the informant marijuana, late about specify quantity did not pre- occasions. While no that he sus- on all the other but did tell shown, good could not have had a faith pro- dauer credibility ratio need be cise support three or more on this information to information reliance viding credible and, later, fifty is not sufficient. forty search of Membres' trash times out the informa- good conclude therefore affidavit for cause. lacking in by the informant was given apply, tion therefore does not exception faith credibility of reliability, and the denying indicia of Mem- and the trial court erred not established. the informant was Because the suppress. bres' motion support was not sufficient information subject the transfer order was articulable, re- pursuant to a lawful not obtained of Membres conduct a search quired to the trial court to vacate the we remand to trash. property. return the turnover order and argues and remanded.
The State Reversed in "good executed search warrant was CRONE, J., concurs. exception allows good
faith." The faith that has been to admit evidence courts BAILEY, J., separate dissents with "objec illegally seized if the acted opinion. *5 State, v. 749 good tive faith." Caudle BAILEY, Judge, dissenting. 616, (Ind.Ct.App.2001), trams. N.E.2d 620 majori- respectfully I from the dissent objective is utilized denied. An standard faith ty's good determination that the ex- evidence is admissi to determine whether ception exclusionary inappli- to the rule is by virtue ble when seized question in cable to the trash search by a detached and warrant that was issued result, that, subject to as a magistrate neutral but later determined order-i.e., $57,060.00, Mason, the transfer v. 829 probable lack cause. State jewelry, and firearms-was not obtained 1010, (Ind.Ct.App.2005). N.E.2d 1019 however, pursuant to a lawful search. Even assum- not exception, faith does good ing arguendo police that the a rea- upon lacked the warrant is based apply where sonable, seizing articulable for recklessly knowingly false information that, Membres's trash and as a conse- or if the supplied by supporting an affiant meet quence, pull the trash did not in indicia of lacking affidavit is so requirements of v. in constitutional to render official belief its cause as State, (Ind.2005), 824 363-64 entirely existence unreasonable. Id. the evidence is still admissible under the case, provided In information this faith in Indiana good exception as codified infor- by the confidential See, e.g., 35-47-4-5. Rich- Code Section support an ar- mant was not sufficient to State, ardson v. 848 N.E.2d 1103-04 ticulable, crimi- suspicion of (Ind.Ct.App.2006). activity. given nal The information pro- of criminal ac- Indiana Code Section 35-47-4-5 suspicions informant's crime, that, prosecution residence vides in a tivity occurring at Membres' may grant actual a motion to exclude any and not on observations of court grounds on the that the search or drug activity. There were also no facts evidence by did which the evidence was ob- that set forth what seizure given by information tained was unlawful if the law enforcement to corroborate the good faith. the informant. conclude that because officer obtained the evidence (b) tip so lacked the indicia of informant's § Ind.Code 35-47-4-5. Subsection explains that that evidence is ob- reliability credibility, Deputy statute There, pursu faith if it is obtained trash search. the trash good tained statute, judicial precedent, "a placed ant to state had also been next to the mailbox uncon or court rule that is later declared addition, many for collection. Id. In invalidated."2 As stitutional or otherwise neighboring residences had bags placed majority, noted along Moreover, the street for pickup. Id. Litchfield-which suspicion for trash requires articulable Lovell, the record did not indicate that not been decided at searches-had trespass the officers had to on the defen of the trash search at issue3 In time proberty dant's neighbors disturb his stead, at a different for the test Likewise, seizing bags. in Mast being search of trash was our applied State, (Ind.Ct. v. 809 N.E.2d 420-21 State, Edwards v. 832 N.E.2d courts. See denied, denied, App.2004), reh'g trans. In (Ind.Ct.App.2005). Moran upheld the search and seizure of the Court (Ind.1994), 644 N.E.2d defendant's as trash reasonable under the denied, Supreme our noted rehy There, Indiana police Constitution. offi constitutionality that the of a trash search rode with cer the defendant's trash carrier upon be determined based the rea should it collected the defendant's trash when search. primary sonableness of the Of day previously from a on the dumpster, importance to the Moran Court was the for removal. scheduled trash Id. manner in which the trash was seized. dumpster was located approximately for recognized, example, The Court twenty public fifteen feet from the road trespass officers did not on the Mast, way. the officer remained in Id. premises get bags, but collect during the trash truck the entire collection approximately ed them from an area a foot process. *6 street, mailbox, from next to where However, they pickup by had been left for v. Stamper, State 788 Further, collector. 541. the N.E.2d 865 (Ind.Ct.App.2003), abro- Moran Court observed that the officers gated by Litchfield, panel another of this they not did cause disturbance because determined, Court under set of facts early in conducted their activities readily distinguishable from those in Mor- morning they unlikely when were to be an, the search of the defendant's more, seen. Id. at 541. What is the offi There, trash was unreasonable. the defen- cers conducted themselves the same dant, by while under surveillance duty manner as those whose it was to Detective, placed Indiana State Police collect the trash. bag garbage pile trash at the of a bottom property, that was some feet onto his near
Subsequently, in Lovell v. driveway. the end of the In Stamper, (Ind.Ct.App.2004), trams. upheld validity denied, this Court that trash evidence revealed collection was aby government-run not done collection bags by search of three trash officers after reviewing totality by service but sister's fian- the circumstances defendant's Accordingly, to determine the reasonableness of the cé. held that be- 35-37-4-5(b)(2) training presently 2. Indiana Code Section also is not officer, requires that the law enforcement at dispute, we do not examine this subsection. evidence, the time he or she obtains the have applicable training satisfied minimum basic 3. record demonstrates Wil- requirements adopted by established rules dauer searched Membres's trash on March training Yet, the law enforcement board under was not decided until Indiana Section Because March Code 5-2-1-9. go had to onto the detective cause the garbage, to collect
defendant's by a normally collected which was service, the search collection public trash was unreasonable. at case law that existed light In of the of Membres's the time of the search was not unreason- the search prop- obtained was able and the evidence Indeed, erly discovered evidence. very present case are similar facts Here, and Mast. without enter- Moran ing property, Deputy onto Membres's at bags collected the four trash is-
dauer sue, which were located the mailbox addition, pulled the officer
and curb. day on the normal for Membres's trash collection. Because the search prevailing issue conformed to the case law at the the evidence could not have properly been excluded under Indiana and, thus, Code 85-37-4-5 could Section provide support finding for the
cause to issue the warrant to search Mem- bres's residence. reasons,
For these I dissent with majority opinion. *7 BOYLE, Appellant-Defendant,
David Indiana, Appellee-Plaintiff. STATE of No. 49A04-0507-CR-369. of Indiana. Appeals
July