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Justices affirm convictions after toddler found wandering by police

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The Indiana Supreme Court affirmed the admittance of drugs and other evidence obtained by police after searching an apartment following a report of an unattended child. The justices found both parents gave their consent for police to make sure the apartment was fit before returning the child to their care.

Police found an unsupervised toddler wandering half-naked near a pond in an apartment complex. Nick McIlquham approached police and told them he was the father and he had fallen asleep while watching her. Police told McIlquham they need to come back and make sure his apartment was safe for the girl and they would likely call child protection services. McIlquham consented and as they entered the apartment, he quickly headed for the kitchen. The officers saw him put something in his pants, so they conducted a pat down and discovered marijuana. More drugs and paraphernalia were in plain sight.

Police called the girl’s mother, who was the person who signed the apartment lease, and when she arrived home was upset to learn police had found drugs. They told her that CPS would be notified but it was not their decision as to whether the girl would be removed from the home. She consented to a full search of the home, and officers found more drugs and a gun in a bedroom. McIlquham admitted they were his and the girl’s mother did not know about them.

He pleaded guilty to neglect of a dependent and marijuana possession charges, and went to trial on firearm, dealing and paraphernalia counts. He sought to suppress the admittance of the evidence found during the searches, claiming he and the mother consented under duress of threats to take the girl into CPS custody. The trial court denied the motion and he was found guilty of the firearm and paraphernalia charges.

The Court of Appeals affirmed, citing the “community caretaking” exception to the Fourth Amendment, but the justices affirmed on the grounds that McIlquham and the mother validly consented to the searches.

The justices found no coercive words or actions in this case. Justice Loretta Rush noted that McIlquham initially approached police, so the encounter began as consensual and that he was allowed to carry his daughter back to the apartment.

“[W]hen Defendant told police ‘it was okay’ to check the apartment, we find no reason not to take his consent at face value,” she wrote in Nick McIlquham v. State of Indiana, 49S05-1401-CR-28.

“Making a ‘bee line’ to the kitchen, then furtively stuffing unknown objects into his pockets, amply warranted a pat-down for officer safety — and thus to discovery of the scales, cash, and additional marijuana that were in plain view on the counter. It was well within the trial court’s discretion to admit those items into evidence on the basis of consent, so we need not address the “community caretaking” rationale on which the Court of Appeals relied.”

The justices also rejected McIlquham’s claims that the mother was in custody or under duress when she consented to the apartment search. Rush noted that police told her it was up to the Department of Child Services and not police as to whether the girl would be taken into custody by CPS. And the record shows that the mother was eager for police help to find and confiscate anything that would be hazardous to her child.

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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