ATTORNEYS FOR APPELLANT
Kevin P. McGoff
Jessie A. Cook
Terre Haute, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
SUPREME COURT OF INDIANA
LAWRENCE D. SOWERS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 33S00-9807-DP-387
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable John L. Kellam, Judge
Cause No. 33C01-9806-CF-16
ON INTERLOCUTORY APPEAL
March 3, 2000
This case involves the seizure of several items from a tent located in
the backyard of a residence. A valid search warrant had been obtained
for the residence. Although the tent was an area in which the
occupant had an expectation of privacy, we hold that the warrant was valid
for a search of the tent to the same degree as for any
other structure within the curtilage of a residence. Accordingly, the search did
not violate the Fourth Amendment or the Indiana Constitution. We remand this
case to the trial court with direction to deny Sowers motion to suppress.
Factual and Procedural Background
On June 19, 1998, a neighbor found the bodies of Tony Westfelt and
Crystal Neal in Westfelts apartment. Westfelt had been shot in the forehead
and Neal in the back. Police soon obtained information linking Sowers to
the killings. Ultimately Sowers was charged with two counts of murder.
Because the State filed a request for the death sentence, appeal to this
Court is proper.
This is an interlocutory appeal and trial is scheduled to begin in a
matter of weeks. We see no reason to provide a detailed recitation
of facts that may appear at the trial. It is sufficient for
these purposes to state that at a probable cause hearing in the early
morning hours of June 21, police presented to the judge sufficient information to
justify issuance of a warrant for the search of a residence located at
801 West Neely Street in Muncie, and seizure of a silver in color
revolver handgun, with dark color grips and other items believed to be concealed
in or about said dwelling. The judge was told that several hours
earlier Sowers had been sleeping in a tent behind the residence, and a
warrant was also issued for Sowers arrest.
Shortly before 3:00 a.m., several officers from the Henry County Sheriffs Department, the
New Castle Police Department, the Indiana State Police, and the Muncie Police Department
executed the warrants. One group of officers entered the front of the
home and another group secured its rear. As soon as the officers
at the rear heard an entry at the front, they began to search
the three tents in the backyard. Sowers was found in the tent
nearest to the house and ordered to exit. As Sowers rose, an
officer saw a silver revolver near the area where he had been lying.
Sowers was arrested and the handgun and other items located in the
tent were seized approximately fifteen minutes later.
Sowers filed a motion to suppress all evidence seized from the tent on
the ground that the search of the tent was not authorized by the
warrant and therefore violated both the Fourth Amendment to the United States Constitution
and Article I, § 11 of the Indiana Constitution. After extensive briefing
by the parties and a hearing on the matter, the trial court granted
the motion to suppress all evidence seized from the tent except the handgun.
At Sowers request, the trial court certified the ruling as to the
gun for interlocutory appeal. This Court accepted jurisdiction over the appeal and
also granted the States request to file a cross-appeal challenging the exclusion of
the other items.
I. Fourth Amendment to the United States Constitution
The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any
warrant except one particularly describing the place to be searched and the persons
or things to be seized. Maryland v. Garrison, 480 U.S. 79, 84
(1987) (quoting U.S. Const. amend. 4). The Supreme Court of the United
States has explained the purpose of this requirement as the prevention of general
or wide-ranging exploratory searches. See id. Thus, the lawful scope of
a search is defined by the object of the search and the places
in which there is probable cause to believe it may be found.
Id. at 84 (quoting United States v. Ross, 456 U.S. 798, 824 (1982)).
It is sufficient that a warrant describe the place to be searched
in terms that an officer can with reasonable effort ascertain and identify the
place intended. Steele v. United States, 267 U.S. 498, 503 (1925).
The issue is whether the Fourth Amendment permits police officers who secure a
lawful warrant for a residence at a specific address to search a tent
in the backyard of that dwelling. The trial court held that the
search of the tent violated the Fourth Amendment. It correctly observed that
an occupant of a tent has a legitimate expectation of privacy protected by
the Fourth Amendment.
See Haley v. State, 696 N.E.2d 98, 101 (Ind.
Ct. App. 1998), trans. denied, 706 N.E.2d 175 (Ind. 1998) (table). Because
the warrant in this case did not specifically mention the tent and the
tent and residence were not used as a collective dwelling, the trial court
held that the search of the tent was outside the scope of the
warrant. In reaching this conclusion, the trial court relied on this Courts
opinion in Figert v. State, 686 N.E.2d 827 (Ind. 1997), which observed that
[a]s a general proposition, a search of multiple units at a single address
must be supported by probable cause to search each unit and is no
different from a search of two or more separate houses. Id. at
830. The rationale behind Figert and similar cases is the requirement that
probable cause must exist as to each separate unit of a multi-unit dwellingtypically
an apartment building, but in Figert a group of mobile homes. See
id. at 831 ([T]he better practice is to obtain a separate warrant for
each residence or place unless police proceed under a collective dwelling theory, in
which case the facts supporting that conclusion should be set forth.); see also
Watts v. State, 434 N.E.2d 891, 893 (Ind. Ct. App. 1982) ([I]n situations
involving buildings, particularly dwellings with multiple occupants, search warrants have generally been held
to be invalid when they fail to specify which sub-unit was to be
searched.). The same considerations do not apply when police obtain a warrant
for a single residence that may have a yard and perhaps also outbuildings
such as sheds, or in this case tents.
Ross, the Supreme Court held that a warrant that authorizes an officer
to search a home for illegal weapons also provides authority to open closets,
chests, drawers, and containers in which the weapon might be found. 456
U.S. at 821. We agree with the courts that conclude the same
reasoning applies to the yard and outbuildings of a single residence. As
the Ninth Circuit put it:
We are unable to identify a privacy based reason why this principle should
be restricted to the inside of a residence and stop at the residences
threshold to the backyard, or curtilage. If a search warrant specifying only
the residence permits the search of closets, chests, drawers, and containers therein where
the object searched for might be found, so should it permit the search
of similar receptacles located in the outdoor extension of the residence . .
United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996). The
Ninth Circuit further observed, correctly as far as we can determine, that [e]very
published opinion addressing the issue has concluded that a warrant authorizing the search
of a residence automatically authorizes a search of the residences curtilage. Id.
II. Article I, § 11 of the Indiana Constitution
Every value furthered by the Fourth Amendment remains intact if a proper warrant
for the search of a single residence also permits a search of the
yard or curtilage at the designated address. The proper procedures to invoke
judicial supervision have been followed, and a proper justification for the intrusion has
been established. The only issue is whether a warrant is overbroad in
its geographic scope or intentionally restricted to a house itself. Neither is
true here, given the designation of the property to be searched as a
residence at a single specified address.
Finally, the authorities seem unanimous in permitting similar searches. Curtilage originally appears
to have meant the area within a fence surrounding a structure, but is
now used in this context without regard to whether what is usually termed
the yard is fenced or not.
See, e.g., United States v. Brown,
822 F. Supp. 750, 754 (M.D. Ga. 1993), affd, 50 F.3d 1057 (11th
Cir. 1995) (table) (The search warrant in this case authorized intrusion into the
area of highest expectation of privacy. It seems logical and reasonable that
a search warrant that authorizes intrusion on this greater area of privacy would
include authorization for intrusion in the lesser area of privacy, the backyard.); Barton
v. State, 288 S.E.2d 914, 915 (Ga. Ct. App. 1982) (observing that [p]remises
contemplates the entire living area used by occupant and upholding search of a
shed twenty feet behind the house); State v. Basurto, 807 P.2d 162, 165
(Kan. Ct. App. 1991), affd, 821 P.2d 327 (Kan. 1991) (upholding search of
a shed in the backyard of a residence, observing [t]here appears to be
little doubt that a search warrant which describes only the residence of a
defendant will authorize the search of any vehicles or buildings within the curtilage
of that residence); State v. Vicars, 299 N.W.2d 421, 425-26 (Neb. 1980) (upholding
search of calf shed located on the other side of a chain link
fence and 100 feet from residence); State v. Trapper, 269 S.E.2d 680, 684
(N.C. Ct. App. 1980) (holding that a warrant for search of house trailer
also permitted search of tin shed approximately thirty feet from trailer); State v.
Stewart, 274 A.2d 500, 502 (Vt. 1971) (upholding search of a tree located
in the backyard of a residence).
Like the barn, garage, shed, and tree in the cited cases, Sowers tent
was a structure within the curtilage of a dwelling for which the police
secured a valid search warrant. As a result, when police obtained a
valid warrant to search the residence at 801 West Neely Street, they were
also authorized to search the tent in the backyard of the residence.
The search of Sowers tent and the seizure of items found in the
tent did not violate the Fourth Amendment under these curtilage cases. We
see no reason to disagree with these authorities and find no defect in
a search that was properly authorized. Indeed, a police officer specifically
advised the issuing judicial official that Sowers was in a tent in the
backyard of the residence.
Finally, because the officer who found Sowers ordered him out of the tent
several minutes before a different officer entered the tent to seize the gun
and the other items, the parties also discuss the effect of
State, 714 N.E.2d 1099 (Ind. 1999). That case held that an officer
who is lawfully in a home (in that case as a prospective buyer
of the house) and sees contraband (in that case marijuana and paraphernalia) does
not retain the privilege to seize the contraband under the plain view doctrine
after he leaves the premises. That doctrine has no applicability when there
was no termination of the officers authorization to be on and to search
the premises. The officers in the case at bar were at the
residence under a warrant authorizing a search of the entire premises. They
never discontinued the search and required no new authority to enter and reenter
the tent or any other room of the house or area within the
curtilage. Accordingly, Middleton has no application here.
Sowers also contends that the search of his tent violates Article I, §
11 of the Indiana Constitution. The purpose of Article I, § 11
is to protect from unreasonable police activity those areas of life that Hoosiers
regard as private. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995)
(citing Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994)). As this
Court explained in Brown, a claimed violation of Article I, § 11 requires
a determination of whether the police behavior was reasonable. 653 N.E.2d at
79. Although the existence of a valid warrant is one consideration in
this determination, it is not dispositive. See id.
For the same reasons explained above, we hold that the search of Sowers
tent was reasonable. Hours before the search, police obtained credible evidence that
Sowers was asleep in a tent behind the residence at 801 West Neely.
They secured a warrant to search the residence at that address and
to arrest Sowers and seize a handgun and related materials believed to be
concealed in or about that dwelling. Under these circumstances, the search of
a tent behind the residence was eminently reasonable and presented no violation of
the Indiana Constitution.
This case is remanded to the trial court with direction to deny Sowers'
motion to suppress.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.