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. Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.

  2. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  3. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  4. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  5. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

ADVERTISEMENT