ILNews

COA reverses conviction in trash-search case

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals reversed a conviction of possession of marijuana with intent to deal, citing an Indiana Supreme Court case that prohibits introducing evidence at trial that was obtained following a police search of trash. The court also ruled the good faith exception does not apply.

In Ralph Belvedere v. State of Indiana, 48A05-0611-CR-669, Belvedere appealed his conviction of possession of marijuana with intent to deal and maintaining a common nuisance, arguing the Indiana Supreme Court decision in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) should be retroactive and apply to his case. Belvedere was arrested after Anderson Detective Kevin Earley, based on a tip, searched Belvedere's trash for evidence of marijuana. After finding seeds, stems, and a small amount of marijuana, Earley requested a search warrant of Belvedere's house. When marijuana was found during the search, he arrested Belvedere.

During his trial, the court denied Belvedere's motion to suppress the evidence police took from his trash that prompted the search warrant. The trial court sentenced Belvedere to six years probation.

Litchfield was decided in March 2005, almost a year after Earley searched Belvedere's trash. Judge Edward Najam wrote in the opinion that Litchfield applies to all cases that were pending on direct review or not yet final at the time Litchfield was decided; Belvedere's case was not yet decided as he was convicted in July 2006. For Earley to conduct a lawful search, he needed to have an "articulable individualized suspicion," but his search was based exclusively on information he received from a source. The information the source had was general information about Belvedere's race, age, and residence, but many people could know that information. Earley's search violated Belvedere's rights under the Indiana Constitution, and all evidence from that search must be suppressed unless an exception to the exclusionary rule can apply, wrote Judge Najam.

If Earley got the evidence from Belvedere's trash out of good faith, then it may be admissible. Any application of the good faith doctrine must take into account the constitutional standards from Litchfield. The majority agreed the good faith exception cannot be applied to this case, and many others, because it would avoid application of a newly announced rule of constitutional law, wrote Judge Najam.

In Indiana, the good faith exception can be applied if the evidence was obtained pursuant to "a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated." Applying the good faith statute to Belvedere would violate his rights under the Indiana Constitution. To apply the good faith statue here would negate the Indiana Supreme Court ruling in Litchfield and require the court to ignore the retroactivity of Litchfield, the judge wrote.

Judge Cale Bradford dissented in a separate opinion, writing he believes the good faith exception applies to this case. The trash search was legal when it was performed, wrote Judge Bradford. He cited Michigan v. DeFillippo, 443 U.S. 31 (1979), in which the Supreme Court noted that evidence found at the time a person was arrested after a lawful arrest and search should not be suppressed.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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