Stephen A. MERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 2-384A75
Court of Appeals of Indiana, Second District
Sept. 23, 1985
SHIELDS, Judge.
Reconciliation of the apparent conflict in our decisions can be accomplished. I believe that a proper interpretation of our decisions and the rules consistent with the concept of notice pleading can be formulated in the following manner: Initially, a plaintiff need not anticipate a statute of limitations defense and plead matter in avoidance in the complaint. If the complaint shows on its face that the statute of limitations has run, the defendant may file a T.R. 12(B)(6) motion. Plaintiff may then amend to plead the facts in avoidance. On the other hand, if the defendant simply answers the complaint setting up the statute of limitations, the plaintiff may, but does not have to, file a reply in avoidance. The defendant may seek summary judgment, in which event it becomes incumbent upon the plaintiff to present facts raising a genuine issue in avoidance of the statute of limitations. If the case goes to trial, the plaintiff must establish the facts in avoidance of the statute of limitations.
For the reasons herein stated, I would grant rehearing and hold that a genuine issue of fact as to fraud and concealment had been shown, and reverse the granting of summary judgment.
Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.
SHIELDS, Judge.
Stephen Mers appeals his conviction in a jury trial of theft, a class D felony under
- whether the issuance of a search warrant for Mers‘s vehicle was supported by an adequate probable cause affidavit, and
- whether the defendant was tried by a fair and impartial jury?
Facts
Sometime between 8:30 p.m. on November 16, 1982 and 1:30 a.m. the next day, the Starland Arcade in Upland (Grant County), Indiana was forcibly entered. Quarters from the video machines, cigarettes from a vending machine, and a trash basket (to hold the cigarettes) were taken. The defendant-appellant, Stephen Mers, was charged with the theft of the various items.
On November 17, 1982, the Upland police obtained a warrant to search the trunk of Mers‘s car for the wastebasket and cigarettes. The warrant was based on the following affidavit:
“MICHAEL PARKER, being duly sworn upon his oath, deposes and says: That he believes and has good cause to believe that there are certain items, to-wit:
A cream or off-white colored plastic trash basket approx. two feet high and numerous packages of various brands of cigarettes located and concealed in or upon a certain car trunk, to-wit:
A 1974 blue Ford Torino auto with Indiana 1982 license plate 27E 7007 and that the above described items are unlawfully possessed and subject to seizure because Evidence of a Crime
The reasons and grounds for affiant‘s belief that there is probable cause for searching said trunk of 1974 Ford Torino are as follows: That affiant, Michael Parker observed the car in Upland, Grant County, Indiana, at approximately 11 p.m. on Nov. 16, 1982 while on patrol. Affiant saw the car drive into two service stations in Upland and then drive out and approximately one-half hour later affiant again saw the Ford, this time parked behind the Upland Tavern. On each occasion there were three subjects in the Ford Torino. Affiant went on another call and then at approximately 12:34 a.m. on Nov. 17, 1982 affiant saw the Ford on W. Urban Street, Upland, Grant County, Indiana, and saw two of the subjects get out of the car and walk
behind the Union 76 Service Station, corner of E. Urban and N. Main Streets, Upland, and try to open the rear door. Affiant called for assistance on a possible burglary being committed and Grant County Sheriff‘s Deputies Charles Rudicel and Dave Magers arrived shortly, but the men were gone and affiant described their car and Deputy Magers said he had past [sic] that car on the way into Upland and the sheriff‘s deputies then went after the Ford Torino which they stopped at Indiana 22 and I-69, Grant County, Indiana, writing traffic citations for the driver, Steve Mers, on charges of improper headlights, false registration and operating a motor vehicle on a beginner‘s permit without a licensed drive [sic] present. The Ford Torino was then impounded because none of the three occupants was a licensed driver and in an inventory of the passenger compartment, approximately $7.00 in loose quarters, U.S. coins, was found in a white tee-shirt and two $1.00 bills, U.S. Currency, were found on the backseat floorboard. Affiant radioed Upland Marshal Roger Brown and had him check businesses in Upland and Brown found the Starland Arcade, located in the 100 block of E. Washington Street, Upland, Grant County, Indiana, had been entered after the lock hasp on the front door had been cut and radioed the information to affiant who then returned to Upland.
That Marshall Brown checked the Starland Arcade and found trash on the floor and the doors to amusement machines and a cigarette machine all open and the coin boxes empty.
Affiant checked the area around the outside of the arcade and across the street, slightly to the south of the Arcade, affiant found a pair of metal cutters, and behind the Upland Tavern where affiant had seen the Ford Torino parked affiant and Deputy Sheriff Bill Norton found a blue die (one of pair of dice) made of foam material. That, later, when affiant examined the passenger compartment of the Ford Torino at the Grant County Jail, affiant found a second blue foam die which matched the one he had found behind the service station, each die having red polka dots on it.
That David W. Oaks, operator of the Starland Arcade, told affiant and Marshal Brown that a cream or off-white colored plastic trash basket approximately two feet in height was missing from the arcade and that the trash on the floor had been in the basket. Oaks said numerous packages of various brands of cigarettes had been taken from the cigarette vending machine in the arcade. Affiant believes the plastic trash basket and the packages of cigarettes are in the trunk compartment of the 1974 blue Ford Torino and therefore asks that a search warrant be issued to search the trunk compartment of the Ford Torino.”
Record at 233.
The trunk was pried open and the officers found the stolen wastebasket and 350 packs of cigarettes.
I. Admissibility of Stolen Property Evidence
The fourth amendment to the Constitution of the United States provides the following guarantees:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”2
Under the fourth amendment, a judge must determine if probable cause has been established before a search warrant may be issued. McClain v. State, 274 Ind. 250, 410 N.E.2d 1297 (1980). While the quantity and nature of information neces-
Indiana‘s statutory authority regarding search and seizure is found in
“[N]o warrant for search or arrest shall be issued until there is filed with the judge an affidavit, particularly describing ... the place to be searched and the things to be searched for, ... and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed the offense, ....”
The question in this case is reduced to whether there was sufficient factual information on the face of the affidavit from which a neutral and detached magistrate could reasonably have concluded that probable cause existed for the issuance of a search warrant. See Layman v. State, 407 N.E.2d 259 (Ind.App. 1980).
The search warrant for the trunk of Mers‘s car was issued upon a probable cause affidavit which essentially describes the sightings of Mers‘s car with three occupants engaging in suspicious activity behind a service station. The affidavit also describes the burglary of an unrelated business, the Starland Arcade, after an unknown closing time on an unknown date. Any connection between these two incidents, the sightings of Mers‘s vehicle and the burglary of the Starland Arcade, rests inference upon inference.
Specifically, the affidavit indicates Mers‘s vehicle was seen in and out of two service stations, parked on West Urban Street near a third station where two of the car‘s occupants attempted to open the rear door, and parked behind the Upland Tavern. After Mers‘s vehicle was stopped, loose quarters and one blue foam die were found in the passenger area. Upon investigation, police found the front door lock hasp of the Starland Arcade had been cut and the arcade had been burglarized. Inside the arcade, the coin boxes were open and empty, and a plastic wastebasket and numerous packages of various brands of cigarettes were missing. A pair of metal cutters was found across the street and south of the arcade. Another blue die was found either behind the Upland tavern or behind a service station.3
The affidavit is silent as to when the arcade had last been secured or checked before the theft was discovered. The only items reported missing were not found in Mers‘s vehicle before the search warrant was executed and Mers‘s vehicle was never sighted at the arcade. The cache of quarters described in the affidavit is without inferential value on the issue of probable cause; money was not reported missing from the arcade. It cannot be reasonably inferred the quarters are connected to the arcade, not only because the affidavit is silent as to the taking of any quarters, but also because logic and common sense permits the equally reasonable inference the operator of the arcade would have emptied coin accepting machines at the end of a business day and left the boxes open to discourage their damage by forcible entry.4
The blue die found in Mers‘s car and the matching blue die, found either behind the Upland Tavern or behind the service station, only corroborates the earlier police sightings of the vehicle in both places. The
We must conclude that the warrant for the search of Mers‘s car was improvidently issued because only by speculation could a neutral magistrate have singled out the trunk of Mers‘s car as the place where the stolen cigarettes and wastebasket would be found. See Crowe v. State, 251 Ind. 562, 243 N.E.2d 759 (1969); Flaherty v. State, 443 N.E.2d 340 (Ind.App. 1982).
Accordingly, the search of Mers‘s car was in violation of constitutional protections against search warrants issued without probable cause.5 The only question remaining is whether the stolen wastebasket and cigarettes should have been excluded from evidence at Mers‘s trial.
Until the recent United States Supreme Court decision in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the stolen cigarettes and trash basket, obtained as a result of an illegal search, would have been inadmissible evidence as a matter of federal and state law.6 The general rule was that all evidence obtained by searches and seizures in violation of the constitutional protections was inadmissible in state or federal courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Enlow v. State, 234 Ind. 156, 125 N.E.2d 250 (1955). However, in its opinion in Leon, the Court created a good-faith exception to the federal exclusionary rule. The Supreme Court held that, “evidence obtained in violation of the Fourth Amendment by officers acting in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate need not be excluded, as a matter of federal law, from the case-in-chief of federal and criminal prosecutions.” 104 S.Ct. at 3423 (Blackman, J., concurring). The Court reasoned that the exclusionary rule was not required by the language of the fourth amendment, that other exceptions to the rule had been developed, and that the social costs outweighed the deter-6rence effected by the application of the exclusionary rule.
Because the Indiana exclusionary rule has historical ties to the federal rule,9 and because Article I, Section 11 of the Indiana Constitution contains substantially identical language as the fourth amendment, we fail to find any compelling reason for rejecting the Leon good faith exception in Indiana, at least until such time as experience convinces us that the exception is unworkable or subject to abuse.10 Therefore, we, too, adopt such an exclusion.
Because the Leon exception had not been announced when the trial court in the instant case ruled on the motion to suppress the fruits of the search, the parties were not aware of the need to present the issue of the good faith of the officers and the magistrate in preparing, issuing, and executing the search warrant. Consequently,
II. Impartiality of Jury
Mers argues to this court that the trial court should have held a post-trial hearing to examine the impartiality of a juror who may have answered a voir dire question inaccurately. Mers, however, has waived appellate review of this issue.
Of necessity, a part of the factual basis for the asserted error, the juror‘s relationship to a jailer, would not appear in the trial record because that knowledge, according to the motion to correct error, was obtained after the trial. Therefore,
Due to the necessity of a hearing under Issue I, we retain jurisdiction of this appeal but remand this cause to the trial court for the purpose of conducting that hearing. The trial court shall certify its ruling to this court within (10) days after its entry. Any party desiring to appeal that ruling shall do so by filing a supplemental record with the clerk of this court on or within thirty (30) days of the ruling. On or within thirty (30) days of the filing of the supplemental record the appealing party shall file a supplemental brief; the opposing party shall have an additional thirty (30) days to file an answer brief; the appealing party shall have an additional fifteen (15) days to file a reply brief.
SULLIVAN, J., concurs.
BUCHANAN, C.J., dissents, with separate opinion.
BUCHANAN, Chief Judge, dissenting.
DISSENTING OPINION
My dissent is based upon reasonable inferences arising from the information contained in the probable cause affidavit which was placed before the magistrate for his consideration.1 The affidavit recited that:
“The reasons and grounds for affiant‘s belief that there is probable cause for searching said trunk of 1974 Ford Torino are as follows: That affiant, Michael Parker observed the car in Upland, Grant County, Indiana, at approximately 11 p.m. on Nov. 16, 1982 while on patrol. Affiant saw the car drive into two service stations in Upland and then drive out and approximately one-half hour later affiant again saw the Ford, this time parked behind the Upland Tavern. On each occasion there were three subjects in the Ford Torino. Affiant went on another call and then at approximately 12:34 a.m. on Nov. 17, 1982 affiant saw the Ford on W. Urban Street, Upland, Grant County, Indiana, and saw two of the subjects get out of the car and walk behind the Union 76 Service Station, corner of E. Urban and N. Main Streets, Upland, and try to open the rear door. Affiant called for assistance on a possible burglary being committed and Grant County Sheriff‘s Deputies Charles Rudicel and Dave Magers arrived shortly, but the men were gone and affiant described their car and Deputy Magers said he had past [sic] that car on the way into Upland and the sheriff‘s deputies then went after the Ford Torino which they stopped at Indiana 22 and I-69, Grant County, Indiana, writing traffic citations for the driver, Steve Mers, on charges of improper headlights, false registration and operating a motor vehicle on a beginner‘s permit without a licensed drive [sic] present.
The Ford Torino was then impounded because none of the three occupants was a licensed driver and in an inventory of the passenger compartment, approximately $7.00 in loose quarters, U.S. coins, was [sic] found in a white tee-shirt and two $1.00 bills, U.S. Currency, were found on the backseat floorboard.
Affiant radioed Upland Marshal Roger Brown and had him check businesses in Upland and Brown found the Starland Arcade, located in the 100 block of E. Washington Street, Upland, Grant County, Indiana, had been entered after the lock hasp on the front door had been cut and radioed the information to affiant who then returned to Upland.
That Marshall Brown checked the Starland Arcade and found trash on the floor and the doors to amusement machines and a cigarette machine all open and the coin boxes empty.
Affiant checked the area around the outside of the arcade and across the street, slightly to the south of the Arcade, affiant found a pair of metal cutters, and behind the Upland Tavern where affiant had seen the Ford Torino parked affiant and Deputy Sheriff Bill Norton found a blue die (one of pair of dice) made of foam material. That, later, when affiant examined the passenger compartment of the Ford Torino at the Grant County Jail, affiant found a second blue foam die which matched the one he had found behind the service station, each die having red polka dots on it.
That David W. Oaks, operator of the Starland Arcade, told affiant and Marshal Brown that a cream or off-white colored plastic trash basket approximately two feet in height was missing from the arcade and that the trash on the floor had been in the basket. Oaks said numerous packages of various brands of cigarettes had been taken from the cigarette vending machine in the arcade. Affiant believes the plastic trash basket and the packages of cigarettes are in the trunk compartment of the 1974 blue Ford Torino and therefore asks that a search warrant be issued to search the trunk compartment of the Ford Torino.”
Record at 232. In assessing this affidavit, we heed Justice Pivarnik‘s admonition that “[a] magistrate need only find there is probable cause to issue a search warrant which is based upon probability of criminal activity and not necessarily upon a prima facie showing that there is criminal conduct or that contraband will be found.” Everroad v. State (1982), Ind., 442 N.E.2d 994, 1005 (emphasis supplied); see also Layman v. State (1980), Ind.App., 407 N.E.2d 259, 263, trans. denied (“Probable
The totality of the circumstances contained in the affidavit shows that defendant-appellant Steven A. Mers (Mers) and his cohorts were cruising the alleys and byways of Upland, Indiana during the late evening and early morning hours. Two of the car‘s occupants, after stops behind other businesses, were observed walking behind a service station and attempting to open the rear door. Mers and his companions were not under continuous observation by the police during their activities, but subsequent investigation revealed that the Starland Arcade had been broken into, and cigarettes were missing from a machine, coin boxes were empty, and a wastebasket had been removed from the premises. Behind some of the businesses where the suspicious vehicle was earlier observed, a blue die was found which matched another in the passenger compartment of Mers‘s car. Moreover, a pair of metal cutters was found where Mers‘s car was earlier observed, and the Starland Arcade had been entered after the hasp on the lock had been cut. The affidavit further reflected that an inventory search of the occupants of Mers‘s car and the passenger compartment revealed loose quarters wrapped in a tee-shirt, but no other contraband. Thus, the magistrate was presented with information which revealed highly suspicious activity in a small town, late at night, which was tied directly to the vehicle Mers was driving.
This is clearly sufficient for the magistrate to conclude the probability of criminal activity. Furthermore, the probable location of the contraband in the trunk of the automobile was a reasonable deduction based upon the connection of the vehicle with Mers‘s criminal activity and the fact the inventory search of the passenger compartment did not reveal the contraband which, because of its size and volume, was not easily hidden. The majority seizes on the fact that the affidavit neglects to mention whether the service station that Mers‘s cohorts attempted to enter was closed. The lateness of the hour and surreptitious manner of approach lead to a reasonable inference that it was not open at the time.
The totality of the circumstances allowed the judge to infer that Mers and his cohorts were likely involved in the break-in of the arcade and that the contraband was probably secreted in the trunk of Mers‘s car. That is all that our case law requires for the issuance of the warrant. Everroad, supra; Layman, supra. To hold otherwise is to ignore the United States Supreme Court‘s warning that “‘courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.‘” Illinois v. Gates (1983), 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (quoting United States v. Ventresca (1965), 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684).
As I read the affidavit, the probability of criminal activity is overwhelming. The decision of the learned trial judge finding probable cause for the issuance of the search warrant should be affirmed.