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. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  2. Tina has left the building.

  3. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Can’t we lawyers just engage in peer professionalism and even peer pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basic respect for the law shown by most social workers .... it that good enough in Indiana? If not, then how is JLAP to help this 2003 law school grad get what her law school evidently failed to teach her? (In addition .... rhetorical question … I have a theory that the LAP model serves as a conduit for governmental grace when the same strict application of the law visited upon the poor and the powerless just will not do. See in the records of this paper ... can the argument be made that many who save their licenses, reputations, salaries by calling upon that font of grace are receiving special treatment? Who tracks the application of said grace to assure that EP and DP standards are fully realized? Does the higher one climbs inside the Beltway bring greater showers of grace? Should such grace be the providence of the government, or the churches and NGO's? Why, we would not want to be found mixing the remnants of our abandoned faith with the highest loyalty to the secularist state, now would we?)

  4. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Cannot we lawyers not engage in peer professionalism and even pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basis respect for the law shown by most social workers .... it that good enough in Indiana?

  5. Judge Baker nails it: "Russell was in a place he did not have a right to be, to take an action he did not have a right to take. Russell neglected to leave that property even after engaging in a heated argument with and being struck with a broom handle by the property owner." AS is noted below ... sad to think that the next shoe to drop will be the thief suing the car owner. That is justice?

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