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Convincing evidence, conflicting record doom search challenge

October 18, 2013

A thief who went from car to car in a hotel parking lot was being watched by a hotel employee, and the credit card and cell phone belonging to guests that police later found on the man was convincing enough that an Indiana Court of Appeals panel discarded claims that the court should have suppressed the result of a search.

In David Rhodes v. State of Indiana, 49A02-1304-CR-321, the nine-page opinion of Judge Rudy R. Pyle III notes that while Rhodes’ attorney moved to suppress evidence of the cell phone and credit card at trial, there also was evidence in the record that Rhodes did not object.

The unanimous opinion joined by judges Michael Barnes and Terry Crone held that Rhodes waived his unlawful search and seizure argument that wouldn’t have prevailed anyway.

“Waiver notwithstanding, we conclude there is no error — fundamental or otherwise — because the specific facts before us support the conclusion that the evidence was properly seized pursuant to a search incident to arrest,” Pyle wrote.

After inspecting their vehicles, victimized hotel guests told police their cell phone and credit card were missing. Police relied on the hotel employee’s description of a suspect, and Rhodes, found in another nearby parking lot, matched the description, giving police probable cause to search him.
 
“Thus, the trial court did not err, let alone commit fundamental error, by admitting the cell phone and credit card into evidence. Accordingly, we affirm Rhodes’s convictions,” Pyle wrote.

 

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