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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals reversed a man’s conviction of possession of marijuana with intent to deliver in an amount greater than 10 pounds after it found the trial court abused its discretion by admitting evidence that violated his Fourth Amendment rights to unreasonable searches and seizures.
Toddrick Ogburn was convicted of the Class C felony after police searched his ex-wife’s truck and found two bundles of marijuana weighing over 20 pounds each as well as a Western Union receipt signed by him. Officers said he admitted the marijuana belonged to him. Police were on the scene after they responded to a report of burglary and found the front door of the apartment ajar and the first floor window broken.
Ogburn had other charges against him dismissed after the trial court found the evidence against him was obtained during an illegal search, and filed a motion to dismiss the evidence found in the truck as well, but that was denied. During his trial, Ogburn denied speaking to the police at all and denied living in the apartment that was searched. The trial court convicted him of the felony and Ogburn appealed.
The state said Ogburn should not be allowed to challenge the search of the Chevy Tahoe because he denied having a possessory interest in the vehicle at trial, and thus judicial estoppel applies. But the COA thought otherwise. It said Ogburn did not prevail on the position at trial when the court found Ogburn guilty, necessarily finding Ogburn did have a possessory interest. Also, the argument raises the issue of standing, which was not brought up at the trial level and therefore cannot be brought up at this level.
The police entered the house twice, once for the burglary, and the second time after they obtained a warrant based on a smell of burnt marijuana in the apartment. However, the COA said the warrant should not have been given because the smell was not enough evidence. They did not meet anyone under the influence of marijuana, and there was no proof the smell came from that apartment. Also, the key fob to the truck should not have been obtained because warrants are limited to things which have the suspects’ name or likeness.
The COA also ruled the fruit of the poisonous tree doctrine bars the admission of the marijuana from the car, because the key fob was obtained during an illegal search.
The case is Toddrick Ogburn v. State of Indiana, 82A01-1509-CR-1546.
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