*1 CRONE, J., separate opin- dissents with person's area of anticipated control and ion. privacy. The consent entry was for for a legitimate purpose, is, that retrieval of
CRONE, Judge, dissenting. Holman's property. Eric Marcadl testi- I respectfully dissent. I believe that fied, "I met onee [Holman] and this was Holman had Erica's consent to enter her the second time I seen him coming bedroom for the limited purpose of retriev- out of the window." Id. at 11. Mareadl ing personal property. his I Accordingly, Holman, Erica, never told that he could would reverse his residential convie- not enter the Marcadl residence. Mar- tion. major objection cadl's to Holmes was that
The record seventeen-year- reveals that dating daughter. his I believe it is old Erica resided in parents' her home. In reasonable to assume that a seventeen- past, recent Erica given had consent year-old authority has to consent entry, bedroom, for Holman to enter her an area legitimate an otherwise purpose, to an over which seventeen-year-olds most exer area of her residence over which she main- cise almost exelusive control and dominion. tains and control. fact, In the couple had an understanding- sum, In I believe that properly Holman home, when Erica's parents were Holman raised consent as a defense to the residen- entered Erica's room through her bedroom tial entry charge and that the State failed window. Tr. at 21. On the night of the disprove beyond defense a reason- incident, Erica, Holman called and she able Consequently, doubt. I would re- gave permission him to enter her bedroom verse his conviction. so that he could retrieve some of his cireumstances,
clothes. Under Hol
man reasonably believed he had Erica's consent to enter her bedroom. Smith Cf. State, (Ind.1985)
v.
(holding that consent was not defense to
burglary charge where non-oceupant son
gave defendant permission to par enter ents' home for the purpose of stealing TRIMBLE, Appellant- Robert valuables); their Hicks v. Defendant, (Ind.1987) N.E.2d (holding that defendant, burglary who claimed he was in victim's house because he mistakenly be Indiana, Appellee-Plaintiff. STATE of lieved that victim pres consented to his ence part alleged victim's son's insur No. 40A01-0311-CR-437. scheme, ance fraud was not entitled to instruction regarding defense of mistake of Appeals Court of of Indiana. fact; defendant was aware that son did not Oct. 2004. home, reside in victim's and defendant had no reasonable cause to believe that he had
consent to enter home and take victim's
belongings). case,
In this the person conferring the
consent to enter was a resident of the
home. The consent was limited to that
8§G Elsner Redmon, Montgomery,
Ryan W. IN, LLP, Attorney Pardieck, Seymour, & Appellant. Carter, Attorney General Steve Attorney Jerrells, Indiana, Deputy Joby IN, Attorneys for General, Indianapolis, Appellee.
OPINION *4 MAY, Judge. his convictions appeals Trimble
Robert animal, a of an neglect of abandonment misdemeanor,1 harboring a B Class infraction.2 C dog, Class non-immunized one of appeal, on three issues He raises and restate dispositive find which we dog of a search a warrantless whether in Trim- of a located house and seizure under permissible yard was ble's constitutions.3 and United States Indiana reverse. We
FACTS Jennings on a farm lives Trimble ani- a number of County kept where years to two before For one mals. action, he rise to this gave incident that named But- a miniature Doberman kept owners, Michael and chie for Butchie's Vera Wileox. 17, 2008, in- Trimble was February
On and he in his barn jured working while hospital. him to the Michael to take called Michael hospital returning from After in a entangled leg Butchie's was noticed and his ears chain. Butchie was emaciated pan was His water frostbitten. appeared food in the area. there was no frozen and August argument on oral 3. We heard § 35-46-3-7. 1. Ind.Code quality counsel for We commend 2004. advocacy. oral of their § 2. Ind.Code 35-46-3-1. Michael told his wife about Butchie's tion supported by was substantial evidence sister, condition. She contacted her who of probative value. Id. We will not re- department. contacted the sheriffs A weigh evidence, and any conflicting deputy spoke Michael, with then sometime evidence is considered in a light most fa- night after 10:00 that went to the Trimble vorable to the trial court's decision. Id.
farm investigate. deputy The did not However, this review is different from oth- attempt to obtain a search warrant. He er sufficiency matters in that we also con- pulled into Trimble's and saw a sider uncontested evidence that is favor- doghouse behind Trimble's house able to the defendant.
edge driveway. doghouse The yard located Trimble's about three to The Fourth Amendment Claim five feet from the driveway and about thir- Trimble asserts the warrantless search ty feet from Trimble's back door. that resulted in Butchie's seizure was im deputy knocked on Trimble's back proper because was within door but there no response. He then an area where he had a reasonable expec tation privacy.5 doghouse. went to the The State asserts the Butchie was inside and would not come out. evidence was admissible under the "open *5 only could see Butchie's head. Because fields" doctrine. deputy out, could not coax Butchie Under the Amendment, Fourth grabbed the cable to which Butchie was our analysis focuses on whether a person secured and pulled Butchie out dogh of the has a constitutionally protected reasonable ouse.4 The deputy observed that Butchie expectation of privacy. Id. at Any 436. injured emaciated and had an leg. evidence found as a result of an unconsti Animal summoned, control officials were tutional search under the Fourth Amend and they seized Butchie. Trimble was ment must suppressed. be Id. at 439. An convicted of abandonment or neglect of an individual legitimately demand animal harboring and a non-immunized privacy for activities conducted out of dog. fields, in doors may expect but privacy in the area immediately surrounding the DISCUSSION AND DECISION home. Id. at 436. That area is known as The standard of review for the "curtilage," a term derived from Medieval denial of a motion suppress to evidence is Latin "yard." for "court" or Id. at 437.
similar to regarding sufficiency other State, Outbuildings on 433, issues. Divello v. grounds 782 N.E.2d sur rounding dwelling a 436 (Ind.Ct.App.2008), are within the curti- trans. denied 792 (Ind.2003). lage of the dwelling and are protected N.E.2d 43 We determine 6 whether the trial court's denial of the mo- from by intrusion the Fourth Amendment 4. acknowledge The State does not in its State- argues 5. Trimble proba- also the State lacked carry ment of the deputy pull Facts that ble cause to had to out the search. The State does probable not address Butchie out cause but of the in rather order to ob- appears argue probable to no cause was need- serve Butchie's condition. The State does ed permissible because the search was under eventually acknowledge argument in its "open fields" doctrine. pull "had by him out his chain" deputy's as one "coaxing actions in argument 6. The State's on the Fourth Amend- (Br. doghouse." Butchie out of Appel- of ment issue is that Trimble "had no reasonable 9.) lee at (Br. doghouse." of in the 8.) Appellee argument of This misses the
88 Indiana, I, omitted)). invitation, Art. implied of by
and the Constitution tion however, 24, 53, only recognized access applies 238 251 Ind. Hadley § under cireum- (1968) (Hunter, routes J. dissent N.E.2d Id. at 436-37. stances. 251 Ind. ing), reh'g denied 1012, 89 (1968), 394 U.S. cert. denied determining circumstances (1969). There, L.Ed.2d 39 S.Ct. may reasonably portions property which number of Indiana surveyed a the dissent are open viewed as to visitors deter finding unreasonable decisions and federal case-by-case and will mined on a basis a 70 to buildings as barn of such searches necessarily consideration of the include dwelling; ga a metal yards from itself, such as features house; a dwelling adjacent rage other walkways and fences or existence and a chicken house consisting of shed the loca viewing, to access or obstructions fraternity house garage garage; primary entryways, residential tion barn; escape; a fire Indianapolis; the visi purpose the nature or well as smokehouse. experience tor's call. Id. at 438. Common private cireumstances, enter onto When that under normal teaches coming to a residence to investiga an uninvited visitors to conduct order an owner or resident are ex purpose speak with legitimate another tion or for to come to the residence's most pected that other places restrict their direct, entryway, prominent go, such as obvious expected visitors would be in most cases is its front door. any ob which walkways, driveways, porches, cireumstances, visi permis most uninvited these areas is Under made from servation same expected Di tors are also to leave Amendment. under the Fourth *6 sible front door and vello, Accordingly, knocking an route after on the at 437. 782 N.E.2d response. Id. The nature of receiving a reasonable ex no not have individual does surrounding the visit regard things the circumstances with pectation privacy seope of the be can also affect the a residence or activities within example, open by implication. natural Id. For using their by persons observed truly on persons coming to a places open impliedly senses from could rea pressing emergency matters entry. Id. visitor's out residents sonably expected be to seek police that "if In this means general, than the front door. through areas other access to and utilize normal means of Id. legitimate for some egress from the house in guidance Two Indiana decisions offer inquiries to make purpose, such as "open from distinguishing "curtilage" ... it is not a Fourth Amend- occupant fields." In Blalock v. to see or hear ment search for is vantage point (Ind.1985), from that what seventy- or smell purchased Blalock heavily land in an (quot- seven acres of wooded dwelling." inside the happening LaFave, the entrance to the and Sei- isolated area. Near ing Wayne R. Search ap- Blalock property was a mobile home ed.1996) (internal 2.8(c) (8d quota- § zure pro- Hadley suggest the constitutional and invitation to hold that to the extent Divello mark necessarily proper inquiry curtilage is whether there is rea- tection afforded is privacy container located the area that lost when structure or sonable opposed "curtilage" as to each is considered curtilage typically within the is not one con- or other item within individual structure "private." sidered curtilage. the State's We therefore decline parently used as a residence. Blalock routines and intimate relationships re- greenhouse erected a "in a remote section" volve around the place. entire home property. Id. at 440. Police offi- reasons, There compelling then, are arranged flight cers in a State Police applying Fourth protection Amendment airplane to view the area. The officers to the entire dwelling area. greenhouse identified the and noted the Blalock, In us, as in the case before isolated and remote location and absence application of the Fourth Amendment of farm implements. Through the translu- on question turned whether the area cent roof of greenhouse the officers the police viewed an "open field" or saw what marijuana. determined was "curtilage." The Blalock court noted an Based on the warrantless aerial surveil- "open field" need not "open" nor a lance an officer signed an affidavit for a "field" and it addressed the status of a search warrant a search warrant was structure based on its location: pole issued for Blalock's barn and green- Where such part structures are house. Blalock's motion to suppress the curtilage or have some nexus with the evidence during seized the search of his curtilage, they will be afforded Fourth
pole
greenhouse
barn and
was denied. Id.
protection.
where,
Amendment
But
at 441.
here, the structure
separate
is
from the
quoted
The Blalock court
Dow Chemical
curtilage
any
relation with
eurti-
States,
(6th
Co. v. United
749 F.2d
lage
totally lacking,
is
and the structure
Cir.1984),
476 U.S.
106 S.Ct.
aff'd
is
field,
situated in the
open
midst of an
(1986):
ences of home life often occur outside
and owned another house, officers of the The truck and within four feet just of his residence. south anonymous tip re prop to an responding curtilage were the Divello's had invaded marijuana. We cultivation garding the had a reasonable erty. Divello information police the had acknowledged area, in and the officer's privacy this activity but did illegal suggested that the Fourth Amendment.8 actions therefore violated justify any necessary to to the level rise Id. at 439. most along the
thing more than visit to the residence. and direct route obvious deputy In the case before us at 437-38. at driveway Trimble's about pulled into response night doghouse no at and saw a behind After the officers elicited o'clock through residence walked of the drive edge Divello's house Trimble's through gate yard and Divello's back in located Trim- way. doghouse they noticed property. There the second drive yard about five feet from the ble's feet behind the parked truck about four thirty from Trimble's way and about feet in house, partly partly grass Trim- deputy knocked on door. The back wrapped gravel where response. no ble's back door and received They ran the the house. around behind could doghouse. went to the He He then truck and one plate license number and could not de only see Butchie's head the truck and looked officer walked around point at that whether Butchie was termine brought him within a underneath it. This underweight. wounded house, he smelled the few feet of the doghouse pulled then Butchie out marijuana coming from the south- odor of Butchie was se using the cable to which The other offi- corner of the house. west cured. marijuana cers came over and smelled Here, Divello, had infor- he had to be within as in odor. One stated activity in order eighteen suggested illegal inches of the house but about mation justi- necessary to smell the odor. did not rise to the level fy along than a visit anything more initial onto found the officers' We and direct route to the resi- most obvious per- lived was where Divello Divello, dence. Like the officer missible, not have but the officers should curtilage when deputy invaded Trimble's private backyard of through crossed route" and he left that "obvious and direct gate through pulled Butchie out of the even area, held, That we property. to the other could not determine whether though he through regarded could not as one emaciated. Butchie was wounded or expected would be which uninvited visitors *8 expectation a Trimble had reasonable the cireumstances. to travel under dog- Butchie's privacy in the area where was there- The officers' observation 488. was located. The warrantless house constitutionally imper- fore the result of and seizure curtilage search of Trimble's property on Divello's be- presence missible dissent, Judge opined investigation as Sullivan 8. In his Divello to continue the home order curtilage by presence 782 N.E.2d at of the owner." did not violate the the officers J., (Sullivan, dissenting). appar- It is not walking and the house: "If 439 between the truck police entry purpose of the onto to enter ent that the is not a constitutional violation it investigate property to door, the Trimble was upon not a upon porch knock it is owner"; rather, was to upon "presence it to enter an area constitutional violation investigate condition. person's private Butchie's removed from the further
91 See, improper therein was therefore e.g., v. Stamper, 862, State 788 N.E.2d under the Fourth Amendment. (search 867 (Ind.Ct.App.2008) and seizure violated Indiana Constitution though even
2. The Indiana Constitutional Claim Stamper conceded the search permis The officer's search of Trimble's curti- sible under the Fourth Amendment), lage and seizure of Butchie also violated (Ind.2003). trans. denied 804 N.E.2d 747 It I, the Indiana is the State's Constitution. Article burden to See- demonstrate the constitutionality tion 11 of the Indiana Constitution of a search. Hanley, states: I, N.E.2d at 959. Article Section 11 must right people to be secure in be liberally protect construed to Hoosiers houses, persons, their papers, and ef- from unreasonable police activity in fects, pri against unreasonable search or vate areas of their lives. seizure, Stamper, 788 violated, shall not be and no N.E.2d at Establishing that a issue, defen warrant upon shall but probable dant had no cause, pri affirmation, supported by oath or vacy does always our analysis end and particularly describing place the reasonableness of a search. searched, Id. at 866. person and the thing be seized. In Stamper, an Indiana State Police de- protection provided by the tective who had been involved in an arrest Fourth Amendment is the minimum of Stamper a few months earlier conducted protection amount of a state provide surveillance of Stamper's residence. He for its citizens. State Hanley, Stamper saw exit his home with garbage N.E.2d 958-59 (Ind.Ct.App.2004), bag his place hand and garbage bag trans. denied. permitted States are at the bottom of the garbage pile on his provide protection additional based on property near the driveway. end of his A Gerschoffer, their "No Trespassing" state sign State v. posted on constitutions. (Ind.2002) 3 N.E.2d Stamper's property near the garbage pile. 76 ("The Indiana vi The detective later retrieved unique Constitution has garbage tality, even where its parallel words feder bag and found inside it a burned hand- language."). al Although §I art. 11 of marijuana rolled cigarette rolling pa- the Indiana appears Constitution to have per. been derived from the Fourth Amendment The detective obtained search warrant and shares language, the same we inter Stamper's marijua and found pret apply § I art. 11 independently na oxycontin on Stamper's property. from Fourth jurisprudence. Amendment Stamper moved to suppress the evidence
State v. Bulington, found as a result of the search warrant. (Ind.2004). looking Rather than to federal Stamper fiancé, testified that his sister's requirements such as warrants and proba government-run service, and not a collect ble cause evaluating when Section 11 garbage. ed his Additionally, he testified claims, place we the burden on the State to his is in except fenced for the show that totality under the of the cireum- area gate the road where the is located stances its intrusion was reasonable. garbage is collected. The detec
Searches or seizures have vio tive had to Stamper's enter property to lated the Indiana Constitution when retrieve the garbage bag, which was locat did not violate the federal constitution. approximately ed ten feet from the street.9 distinguished 9. We involving cases garbage the search and seizure of left at the curb in front not have to "wander the officer did had no rea Stamper contended The State (id. 9) property to garbage in a at Trimble's privacy of around" expectation sonable the bags near the garbage other as it was located bag left with find the Id. at 864. for collection.10 road officer] "had driveway, [the and because dog eventually long enough, the waited intrusion unreason- police found the We on his own exited his shelter would have otherwise, police hold "If were to able: we (Id.) accord." garbage everyone's opaque could search and without reason property on their bags to hold the invitation decline State's We activities, associa- of their thereby learn and seizure with- search that warrantless exactly type of tions, It is this and beliefs. if necessarily "reasonable" curtilage in a is that Arti- intrusion government overbroad accomplished without "wander- it can be I, 11 of the Indiana Constitu- cle Section if curtilage in the or the evidence ing" at prevent." intended to tion was if likely po- reveal itself the sought would (citation omitted). the long enough." Under lice "waited Stamper on the statement Trimble relies find the warrantless facts before us we the the is coming onto yard and removal of search of Trimble's determining reasonable- "benchmark" doghouse unreasonable Butchie from his He Indiana under the Constitution. ness §I 11 of the Indiana Constitu- under art. was unreasonable be- the search asserts tion. yard even into his the officer walked cause the nothing from though he saw Exigent 3. Circumstances suspicion a crime had him give that would if Trimble had a argues even State pulled Butchie Before the officer occurred. expectation privacy of the reasonable sure he was not even doghouse, out of the unreasonable, the search was otherwise told one he had been the same was justified by exi- seizure was warrantless about. It was not. gent cireumstances. State, it in its Fourth as did Exigent circumstances pri on the argument, focuses Amendment (1) include: justify a search warrantless not doghouse, nature of vate (2) death; to aid a prevent bodily harm or do it located: "Hoosiers area where was (8) assistance; protect of person need doghouses private as areas." regard not (4) prevent actual private property; 8.) (Br. at The State does Appellee or removal of evi or imminent destruction of the officer's the reasonableness address warrant dence before search yard, ap instead into Trimble's but seizure, obtained. Willis argue the search pears 9) (@d. Butchie out
including "coaxing"
(Ind.Ct.App.2002).
The State bears
proving
exception
an
burden
because
doghouse, were reasonable
Stamper
the search and seizure
police
10.
conceded
where the
conducted
of a house and
constitutionally permissible
under
same manner as those who
themselves in the
However, he contended
garbage
trespass onto
Fourth Amendment.
pick up
and did not
permissible
was not
under
the searches
the search
private property.
In the latter
According-
864.
Constitution. Id. at
in those
Indiana
unreasonable. We noted
were not
argument
Stamper
ly,
missed
"coming
the state's
onto the
decisions
("[Elstablishing
See id. at 866
long
mark as well.
did not
benchmark. As
the defendant had no
property,
the search was
to enter the
have
analysis
always end our
does not
93
requirement
warrant
existed at
warrant,
the time of
forced
without a
no such
the search.
emergency
present
in this case.
This method of law enforcement dis-
initially
noteWe
that Trimble was
plays
shocking
lack of all sense of
convicted of a misdemeanor and an infrac
proportion. Whether there is reason-
Supreme
tion. The
Court has noted that
able necessity for a search without wait-
exceptions to
warrant requirement
are
ing to obtain a
certainly
warrant
de-
delineated,
carefully
few
number and
pends
upon
gravity
somewhat
heavy
bear a
burden when
thought
offense
to
in progress
be
as well
attempting to
an urgent
demonstrate
need
as the hazards of the method of attempt-
justify
that might
warrantless searches or
ing to reach
It is to me a shock-
it....
Wisconsin,
arrests. Welsh v.
466 U.S.
ing
homes,
proposition
private
even
740, 749-50,
2091,
104 S.Ct.
fense for which
probable
there is
cause to
terprise
parting
fools from their mon-
relatively
arrest is
minor. Id. at 750.
ey by the
lottery
'numbers'
is one that
ought,
suppressed,
to be
I do not think
The burden
on
govern
is
its suppression is more important to so-
ment
exigent
demonstrate
circum
ciety
security
than the
people
stances that
presumption
overcome the
unreagonableness
against unreasonable searches and sei-
that attaches to all war-
zures.
an
When
officer
rantless home
undertakes
govern
entries. When the
act
magistrate,
as his own
ought
he
only
ment's interest
is
to arrest
for a
in a
offense,
position
justify
it by pointing
minor
that presumption of unrea
to some real immediate and serious con-
sonableness is difficult to rebut.
Id. And
if
sequences
postponed
get
action to
Straub,
593,
see State v.
598
("With
(Ind.Ct.App.2001)
regard to minor
a warrant.
offenses, the Court has stated that
751,
Id. at
presumption of unreasonableness which at
The Welsh court noted that consistent
taches to
entry by
the warrantless
approach,
with this
most lower courts have
rebut.")
police into a home is difficult to
refused to permit warrantless
ar
home
Welsh,
(citing
750,
U.S.
104 S.Ct.
rests for nonfelonious crimes.
position [the infor- nothing supported [the see that SULLIVAN, J., separate dissents with emergency situation claim an mant's] opinion. 8.) Indeed, Br. at (Reply existed." SULLIVAN, Judge, dissenting. the officer could not have record reflects "exigent circumstance" been aware us, deputy sheriff In the case before until after he had com- the State asserts report to a credible responding search and sei- pleted warrantless doghouse located in a at Trimble's is, pulled after he Butehie out zure-that food, in need of water and residence was doghouse. He into the medical attention.11 drove see driveway an where he could decline to hold that evidence Trimble We from the completed located about five feet officer obtains after he has thirty feet approximately and seizure can also warrantless search door. The "exigent circumstance" that from Trimble's back provide the matter. report department was coxes are far from blameless in this to the sheriff's dog. by remedy the owners of the Mrs. They initiated action to the situa- failed take gave sister who Wilcox the information to her opportunity to do so tion when had the the sheriff's office. Mr. Wilcox in turn called by such failure could be consid- earlier deputy sheriff was then interviewed dog's tacitly ered to have contributed proceeded thereupon to the Trimble who debilitated condition. abundantly property. It is clear that the Wil- *12 door, went from the to the back located further removed from the back door right knocked, where he also had a to be as and when he received no re- sponse, proceeded doghouse. back the part investigation. of his That conclusion dog's dog He could see the head but the inquiry, does end the however. The doghouse, whereupon would not exit the question raised is whether the officer had deputy pulled dog dog- from the legitimate right obligation even an house so that he could observe its condi- extract the dog doghouse from the in order tion. to ascertain its condition.
Here, inas Divello v. my In view the intrusion to Trimble's denied, 433 (Ind.Ct.App.2003) trans. right respect with dog present upon officer was doghouse in compari- was minimal purpose of a law enforcement investi very son to the real likelihood that delay gation. upon In Divello it was information would dog's reported exacerbate the condi- marijuana that a substantial amount of tion. being
was harvested and sold. Here it short, In deputy doing sheriff was upon information that a being . job his carry and did not out his responsi- neglected poor and was in physical condi bility by virtue of an unreasonable search Divello, tion. In the officers were close and seizure. proximity to the house because were reason, For this I affirm would the con- attempting to ascertain presence victions. us, owner. In the deputy's case before attempt by knocking to summon the owner
on the back door could be viewed as inci purpose
dental to the investigation. conclusion, Divello,
My as in is that place here was in a where he had a be,
right to ie. at which was