FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEE:

STEVE CARTER    JASON J. PATTISON
Attorney General of Indiana     Rogers & Dove
                            North Vernon, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana     

STATE OF INDIANA,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 72A04-0209-CR-467
                             )
LARRY W. STAMPER,            )
                             )
Appellee-Plaintiff.          )

Bell, 626 N.E.2d at 572 (emphasis added).
    The State concedes that neither of these cases is factually identical to the present situation in that Detective Busick had to step onto Stamper’s property to retrieve the garbage bags. The State argues that this is a distinction without consequence, contending that the holdings in Moran and Bell turned on the expectation of privacy rather than the real property ownership and therefore, the search and seizure in the present case should be considered reasonable as well.
    Stamper contends that the distinction between Moran and Bell and the present case make this an unreasonable search. Stamper argues that Detective Busick’s trespass onto his property and the fact that the garbage would not have been collected by a public trash collection service make this an unreasonable search. We agree.
    In Moran and Bell, our supreme court and this court have held that coming onto the property was the benchmark. As long as the police did not have to enter the property, the search was considered reasonable. See Moran, 644 N.E.2d at 541 (“Here, the police did not trespass upon the premises to get the bags.”); Bell, 626 N.E.2d at 572 (“Bell placed the garbage bags in question outside the fenced-in area of his property where they could be reached from the alley without stepping onto Bell’s property.”). Here, Detective Busick stepped onto Stamper’s property to retrieve the garbage bag. See footnote
    The State argues that Stamper had no reasonable expectation of privacy in the garbage bag placed near the street. However, establishing that a defendant had no reasonable expectation of privacy does not always end our analysis of the reasonableness of a search. In Middleton v. State, 714 N.E.2d 1099 (Ind. 1999), our supreme court held that a police officer who observed drugs in the open, left the location of those drugs and returned to seize the drugs made an unreasonable search. Id. at 1103. In Middleton, a realtor was showing a probationary police officer a home. The officer had not yet been to the police academy. While inspecting the home, the officer observed what he believed to be marijuana. He stated that he was going to seize the marijuana, but the realtor told him he could not. He left the house and radioed for assistance. During the time he was outside, the back door to the house remained unlocked. Several police officers arrived within minutes and reentered the residence without the realtor’s permission and without a search warrant.
The State charged the occupant of the bedroom where the marijuana was seized with possession of marijuana, visiting a common nuisance, and possession of paraphernalia. He moved to suppress the evidence obtained during the warrantless search. The trial court denied the motion and this court affirmed. Our supreme court reversed, holding that police officers may immediately seize items found in plain view that satisfy the conditions of Horton v. California, 496 U.S. 128 (1990), but if an officer leaves the residence reentry is not justified in the absence of a warrant, the consent of the owner, or some other exception to the warrant requirement. Middleton, 714 N.E.2d at 1103. See footnote
    In Middleton, the occupant of the bedroom where the marijuana was seized certainly had no reasonable expectation of privacy. The home was open for inspection by potential buyers and tours of the home were being given. However, merely having no reasonable expectation of privacy was not sufficient to hold the warrantless search reasonable.
    Although Middleton is not exactly on point, it is important to note that our supreme court has not given free reign to police for warrantless searches nor have our courts held that the question begins and ends with the expectation of privacy. This is a question of when you can gather evidence and when you cannot.
    We find it particularly disturbing that Detective Busick saw Stamper take his garbage out, then waited two hours before picking up the garbage bag. During this time, Detective Busick could have cordoned off the garbage and attempted to get a search warrant instead of performing a warrantless search. See footnote See Middleton, 714 N.E.2d at 1103 (noting that the officers could have secured the area for the few minutes necessary to obtain a search warrant). See footnote
    In light of the facts in this case, we believe Stamper’s expectation of privacy was reasonable. If we were to hold otherwise, police could search everyone’s opaque garbage bags on their property without reason and thereby learn of their activities, associations, and beliefs. See Hawai’i v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985). It is exactly this type of overbroad government intrusion that Article I, Section 11 of the Indiana Constitution was intended to prevent.
    The fact that we hold that Stamper had a reasonable expectation of privacy in his trash bag located on his own property such that police had to enter his property to retrieve the bag does not mean that the police were powerless to search the trash bag. It simply means that, absent exigent circumstances, the police will need a search warrant based on probable cause. See id. at 1277.