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
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
vs. ) No. 72A04-0209-CR-467
LARRY W. STAMPER, )
APPEAL FROM THE SCOTT CIRCUIT COURT
The Honorable James D. Kleopfer, Judge
Cause No. 72C01-0109-CF-55
May 16, 2003
OPINION - FOR PUBLICATION
The State seized a garbage bag from Larry Stampers property.
See footnote Using the
material found in the garbage bag, the State secured a search warrant and
searched Stampers property. The State filed charges against Stamper. Stamper filed
a Motion to Suppress the evidence obtained through the search warrant. The
trial court granted Stampers Motion to Suppress and the State appeals. We
The State raises one issue for our review, which we restate as whether
the trial court properly granted Stampers Motion to Suppress.
Facts and Procedural History
On the evening of September 19, 2001, Indiana State Police Detective Matthew Busick
conducted surveillance of Stampers residence. Detective Busick was familiar with Stamper because
he had been involved in an arrest of Stamper a few months earlier.
At approximately sundown, Detective Busick observed Stamper exit his home with a
garbage bag in his hand. While Detective Busick was watching, Stamper placed
the garbage bag at the bottom of the garbage pile some feet on
his property near the end of his driveway. A No Trespassing sign
was posted on Stampers property near the garbage pile.
Approximately two hours later, Detective Busick retrieved the garbage bag that he had
seen Stamper deposit at the bottom of the pile. Inside the garbage
bag, Detective Busick found a burned hand-rolled marijuana cigarette and rolling paper.
A field test on the substance found in the garbage bag proved positive
for marijuana. Based on this information, Detective Busick applied for and obtained
a search warrant for Stampers property. Detective Busick executed the search warrant
and uncovered a large quantity of marijuana and oxycontin on Stampers property.
The State charged Stamper with dealing in a narcotic drug, a Class A
felony, and dealing in marijuana and maintaining a common nuisance, both Class D
felonies. Additionally, the State amended its charging information to include an habitual
substance offender count. Stamper filed a Motion to Suppress addressed to the
evidence found as a result of the search warrant. Stamper contended that
the search warrant was issued without probable cause and was based on false
information. The trial court conducted a hearing on Stampers Motion to Suppress,
at which Stamper testified that his sisters fiancé collected his garbage rather than
any government-run garbage collection service. Additionally, he testified that his property is
fenced in except for the stone area by the road where the gate
is located and the garbage is collected. Finally, the trial court also
heard evidence that Detective Busick had to enter Stampers property to retrieve the
garbage bag which was located approximately ten feet from the street.
The trial court granted Stampers Motion to Suppress and ordered suppressed all evidence
recovered as a result of the search made of Stampers property pursuant to
the search warrant. This appeal ensued.
Discussion and Decision
I. Standard of Review
At the suppression hearing, the State had the burden of demonstrating the constitutionality
of the measures it used to secure evidence. State v. Glass, 769
N.E.2d 639, 641 (Ind. Ct. App. 2002), trans. denied. On appeal from
the grant of a motion to suppress, the State appeals from a negative
judgment and must show the trial courts ruling on the suppression motion was
contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct.
App. 2001). This court will reverse a negative judgment only when the
evidence is without conflict and all reasonable inferences lead to a conclusion opposite
that of the trial court. Id. at 25. This court neither
reweighs the evidence nor judges the credibility of the witnesses; rather, we consider
only the evidence most favorable to the judgment. Id.
II. Stampers Motion to Suppress
The State contends that the trial court erred in granting Stampers Motion to
Suppress because Stamper had no reasonable expectation of privacy in a garbage bag
left with other garbage bags near the road for collection. The State
examines both the Fourth Amendment of the United States Constitution and the Indiana
Constitution and states that the purpose of each is to protect the privacy
and possessory interests of individuals by prohibiting unreasonable searches and seizures. The
State argues that the search of Stampers garbage bag did not offend either
A. Fourth Amendment
The State argues that the search and seizure of Stampers garbage bag violates
his Fourth Amendment rights only if Stamper manifested a subjective expectation of privacy
in the garbage bag that society accepts as objectively reasonable. Placing items
of property inside a garbage bag and placing the garbage bag out for
collection manifests an intention to abandon the property inside the garbage bag.
See United States v. Redmon, 138 F.3d 1109, 1114 (7th Cir. 1998), cert.
denied, 525 U.S. 1066, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999) (defendants garbage
was abandoned when he moved it out of his garage and placed it
Stamper concedes that the search and seizure was constitutionally permissible under the Fourth
Amendment. However, he contends that the search was not permissible under the
B. Indiana Constitution
The State contends that Stamper did not have a reasonable expectation of privacy
under Article I, Section 11 of the Indiana Constitution, which states:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search or seizure, shall not be violated, and no
warrant shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person or thing to
The United States Constitution establishes a minimum level of protection to citizens of
all states. A state is thus free as a matter of its
own constitutional law to impose greater restrictions on police activity than those deemed
minimal under federal law. Oregon v. Haas, 420 U.S. 714, 719, 95
S.Ct. 1215, 43 L.Ed.2d 570 (1975). The Indiana Constitution has unique vitality,
even where its words parallel federal language. State v. Gerschoffer, 763 N.E.2d
960, 965 (Ind. 2002). We resolve Indiana constitutional claims by examining the
language of the text in the context of the history surrounding its drafting
and ratification, the purpose and structure of our constitution, and case law interpreting
the specific provisions. Id. (quoting Indiana Gaming Commn v. Moseley, 643 N.E.2d
296, 298 (Ind. 1994)).
Indianas founders left few clues about the formulation of Article I, Section 11.
The 1816 constitutional convention adopted this section in remarkably short order with
no recorded debate, in nearly the same words we have today. Id.
We have previously held that Article I, Section 11 must be liberally
construed to protect Hoosiers from unreasonable police activity in private areas of their
lives. Id. (quoting Brown v. State, 653 N.E.2d 77 (Ind. 1995) (warrantless
search of defendants car held unreasonable under Indiana Constitution)). Rather than looking
to federal requirements such as warrants and probable cause when evaluating Section 11
claims, we place the burden on the State to show that under the
totality of the circumstances its intrusion was reasonable. Id. (citing Baldwin v.
Reagan, 715 N.E.2d 332, 337 (Ind. 1999)).
The State directs our attention to two similar cases: Moran v. State,
644 N.E.2d 536 (Ind. 1994), and Bell v. State, 626 N.E.2d 570 (Ind.
Ct. App. 1993), trans. denied. In Moran, our supreme court upheld the
search and seizure of garbage left at the curb in front of Morans
house. The court observed that the police conducted themselves in the same
manner as those who pick up the garbage, the police did not disturb
Moran or his neighborhood, and the police did not trespass onto Morans property.
Moran, 644 N.E.2d at 541. Therefore, the court held that the
search was not unreasonable. Id.
In Bell, this court upheld a police search of Bells garbage where Bell
placed his garbage outside of the fenced-in area of his property and the
police seized it without stepping onto his property. The court held that
Bell had no reasonable expectation of privacy in the contents of the garbage
In the present case, 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 Bells property. They appeared to be available for waste
disposal pick-up. We hold that Bell had no reasonable expectation of privacy
in the contents of the garbage bags and we find no error in
the trial courts denial of Bells motion to suppress.
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 Stampers 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 Busicks 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
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 Bells property.).
Here, Detective Busick stepped onto Stampers property to retrieve the garbage bag.
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 realtors
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.
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.
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).
In light of the facts in this case, we believe Stampers expectation of
privacy was reasonable. If we were to hold otherwise, police could search
everyones opaque garbage bags on their property without reason and thereby learn of
their activities, associations, and beliefs.
See Hawaii 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.
The State has not shown that the trial courts ruling on Stampers Motion
to Suppress was contrary to law. Detective Busick had to enter Stampers
property and, in order to do that, he needed to obtain a search
warrant. The granting of Stampers Motion to Suppress is affirmed.
KIRSCH, J., and RILEY, J., concur.
We heard oral argument on this case on April 10, 2003, at
the Inns of Court Meeting in Jeffersonville. We thank the attorneys for
their capable advocacy and the Inns of Court for their gracious reception.
Footnote: The State argued at oral argument that the garbage bag was only
ten feet from the street and that ten feet is inconsequential. We
find this argument unconvincing. If ten feet is inconsequential, what distance is
considered consequential? Fifteen feet? Twenty feet? Following
Moran and Bell,
we hold that it is the entering onto private property that determines whether
the search is reasonable, not how many feet the officer had to traverse
to reach the garbage bag.
Three conditions must exist to justify the warrantless seizure of evidence under
the plain view doctrine: (1) the officer must not have violated the
Fourth Amendment in arriving at the place from which the evidence could be
plainly viewed; (2) the incriminating character of the evidence must be immediately apparent;
and (3) the officer must have a lawful right of access to the
Horton v. California, 496 U.S. 128, 136-37 (1990).
At oral argument, the State conceded that Detective Busick would not have
been able to obtain a search warrant to seize the garbage bag as
they lacked the requisite probable cause. However, the fact that they could
not have obtained a search warrant does not give police free reign to
enter the premises of an individual and try to seize enough evidence to
obtain a search warrant.
Footnote: Although Stamper contends that the improbability that Detective Busick would have waited
two hours before securing the garbage bag, along with other improbable facts, makes
it seem like Detective Busick fabricated the entire search, we do not need
to address these allegations.