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Divided COA rules officers’ search violated Indiana constitution

December 20, 2017

A divided Indiana Court of Appeals has thrown out a man’s drug and firearm convictions after determining the officers who discovered the evidence violated the Indiana Constitution by maneuvering around a locked gate to locate the evidence.

In April 2015, Frederico Conn was shooting firearms at a target with friends at the Laurel Conservation Club when a nearby neighbor called police to report gunfire. When officers arrived, the gunfire had ceased, and a locked gate blocked to their entrance to the club.

The officers maneuvered around the gate and were walking through the property when they observed Conn walking behind the club’s building. Upon further investigation and questioning by the officers, Conn admitted to hiding a firearm behind the building. Conn led the officers to the location where he had hidden the firearm and where ammunition and two change purses containing a glass pipe, a pen modified into a straw and baggies of methamphetamine were also concealed.

During an ensuing trial on Conn’s charges of Level 6 felony possession of meth, Class A misdemeanor possession of a firearm by a domestic batterer and Class A misdemeanor possession of paraphernalia, the Franklin Circuit Court admitted the evidence found at the club over Conn’s objection. He was then found guilty as charged and sentenced to 2 ½ years served at the Franklin County Security Center.

Conn appealed in Frederico A. Conn v. State of Indiana, 24A01-1703-CR-574, challenging the admission of the evidence on the grounds that it was obtained in violation of the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. The Indiana Court of Appeals agreed Wednesday, reaching only the issue of unreasonableness under Article 1, Section 11.

Judge Paul Mathias, writing for the majority of a divided appellate panel, determined the officers’ degree of concern, suspicion or knowledge of unlawful activity was “negligible” considering the shooting had stopped by the time they arrived and there was no evidence of poaching or killing any animals. The degree of intrusion on Conn, however, was high in light of the fact that the officers had to maneuver around the locked gate to gain access to the property.

“Our courts have consistently held that when Indiana citizens put mechanisms in place to keep others out, ignoring these obstructions constitutes highly intrusive conduct by law enforcement,” Mathias wrote.

Finally, the majority determined there was no evidence of an emergency or threat to the public in this situation, so the extent of law enforcement needs was low. The majority further ruled there was no exigent circumstances that justified the officers’ unlawful intrusion.

Thus, the officers’ conduct failed the test under Litchfield v. State, 924 N.E.2d 356, 359 (Ind. 2005), so their conduct was unreasonable under the state constitution. The majority reversed Conn’s convictions and remanded the case for further proceedings.

Mathias also wrote in a footnote the state had waived its argument that Conn lacked standing to bring his state constitutional challenge by failing to challenge his standing at trial. Chief Judge Nancy Vaidik, however, dissented, writing separately that Conn failed to establish “premised search” or “property seized” standing as explained in Peterson v. State, 674 N.E.2d 528 (Ind. 1996).

Further, Vaidik noted that when Conn initially objected to the admission of the evidence, the prosecutor told the court there had been “no evidence that the Defendant has any kind of reasonable expectation of privacy on private property whether it’s his or had any right to be there.” While the majority concluded that argument went only to a Fourth Amendment issue, Vaidik said under Peterson, the standing analysis is the same for both state and federal constitutional claims.

“To be clear, I acknowledge that the officers’ conduct in this case was constitutionally suspect,” the chief judge wrote. “I simply concluded that Conn has not shown that he is entitled to challenge that conduct.”

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