ILNews

Justices affirm convictions after toddler found wandering by police

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

ADVERTISEMENT