ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
JAMES KORPAL KAREN M. FREEMAN-WILSON
South Bend, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RYAN LaMUNION, )
vs. ) No. 25A04-0006-CR-227
STATE OF INDIANA, )
APPEAL FROM THE FULTON CIRCUIT COURT
The Honorable Douglas B. Morton, Judge
Cause No. 25C01-9902-CF-0007
OPINION FOR PUBLICATION
December 19, 2000
Appellant-defendant Ryan LaMunion (LaMunion) appeals his convictions of possession of cocaine,
D felony, possession of a schedule II controlled substance,
a Class D felony,
and possession of marijuana,
a Class A misdemeanor. We reverse.
LaMunion presents one issue for our review, which we restate as whether the
trial court should have granted his motion to suppress evidence obtained during a
warrantless search conducted after the premises were secured.
Facts and Procedural History
On January 2, 1999, at approximately midnight, five individuals broke into the trailer
home occupied by LaMunion and his girlfriend. Some of the intruders beat
LaMunion while others pushed his girlfriend onto a couch and searched the
trailer for drugs to steal. Eventually, LaMunion struggled free, grabbed a rifle,
and fired a shot. The bullet struck and killed William Schmidt (Schmidt),
one of the intruders. At that point, the other intruders fled.
Having no phone, LaMunion and his girlfriend asked a neighbor to call 911.
Fulton County Police Officer Walker Conley, who arrived at 12:50 a.m., was
the first to respond to the call. Thereafter, other state and county
police responded, and LaMunion was taken to a hospital. Around 1:00 or
1:30 a.m., a deputy, who was going to transport LaMunions girlfriend to the
sheriffs department, was asked to obtain a search warrant for LaMunions trailer.
Having not yet received any response regarding the effort to obtain a warrant
by 3:30 a.m., the officers began searching the trailer. During the search,
Indiana State Police Trooper Rick Grisel (Grisel) lifted a mattress in LaMunions bedroom
and found a compact case beneath it. Thinking the compact might be
drug paraphernalia, Grisel opened it and found a white residue on its mirror.
The residue was later determined to be cocaine and methamphetamine. During
the same search, marijuana was found in a silverware drawer in the kitchen.
Although the search continued until around 5:00 a.m., a judge did not
sign the search warrant until 4:57 a.m. Later that morning, LaMunion and
his girlfriend gave their consent to search the trailer. However, the police
did not enter the trailer again.
The State charged LaMunion with voluntary manslaughter, reckless homicide, possession of cocaine, possession
of a schedule II controlled substance, and possession of marijuana. LaMunion filed
and the trial court denied a motion to suppress evidence of the compact
case. A jury found LaMunion guilty of the three possession counts, but
acquitted him of the other counts. We heard oral argument of LaMunions
appeal on November 16, 2000, in South Bend, Indiana.
Discussion and Decision
LaMunion admits that the police were justified when, upon their arrival, they secured
the crime scene by briefly looking for victims and perpetrators and collecting any
evidence in plain view. However, he claims that the extensive warrantless search,
which began around 3:30 a.m. and uncovered the compact case, violated his right
to be free from unreasonable searches. LaMunion further asserts that the facts
of his case do not fall into any of the exceptions to the
The State first
counters that the police were responding to a 9-1-1 call
LaMunion placed himself, thus implying that he consented to the search. The
State next contends that the warrantless search was proper as part of the
overall crime scene investigation. On a related note, the State asserts that
exigent circumstances existed. Finally, the State claims that the timing of the
signature did not make the warrant invalid or the search illegal because probable
cause existed and the judge or magistrate intended to issue the warrant.
The admissibility of evidence is within the sound discretion of the trial court
and will not be disturbed absent a showing that the trial court abused
its discretion. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct. App.
1999). We will neither reweigh the evidence nor judge witness credibility.
Id. Our federal and state constitutions prohibit warrantless entry into a persons
home for the purpose of arrest or search. See U.S. Const. amend.
IV; Ind. Const. art. 1, § 11.
There are, however, certain narrowly
drawn exceptions to the warrant requirement. See Coolidge v. New Hampshire, 403
U.S. 443 (1971).
One of the established exceptions to the requirements of both a warrant and
probable cause is a search conducted pursuant to consent. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); see also Harper v. State, 474 N.E.2d
508, 512 (Ind. 1985). When the subject of a search is not
in custody and the State attempts to justify a search on the basis
of his consent, the Fourth and Fourteenth Amendments require that the State demonstrate
that the consent was in fact voluntarily given, and not the result of
duress or coercion, express or implied. State v. Jorgensen, 526 N.E.2d 1004,
1005 (Ind. Ct. App. 1988). Whether valid consent was given is a
question of fact to be determined from all the circumstances existing at the
time of the search. See Schneckloth, 412 U.S. at 248-49.
Here, neither LaMunion nor his girlfriend manifest[ed] by word or deed [their] consent
to the search before it was performed. See Jorgensen, 526 N.E.2d at
1007. They clearly did not assist in the search, as neither was
even present. LaMunion had been taken to the hospital, and his girlfriend
had been taken to the police station. They did not inquire about
the searchs progress. They did ask their neighbor to call 911.
However, this can hardly be acquiescence, let alone consent, to a full search
of their home. See Jorgensen, 526 N.E.2d at 1006-08.
The State cites, and we find, no authority for what it terms the
overall crime scene investigation exception to the warrant requirement. We can only
assume the State is referring to the exigent circumstances exception. Police officers
may enter a home without a warrant to aid a person in need
of assistance. See Stewart v. State, 688 N.E.2d 1254, 1257 (Ind. 1997).
Further, when the police come upon the scene of a homicide they
may make a prompt warrantless search of the area to see if there
are other victims or if a killer is still on the premises.
Mincey v. Arizona, 437 U.S. 385, 392 (1978). The need to preserve
or protect life justifies what would otherwise be illegal if exigency or emergency
did not exist. Green v. State, 575 N.E.2d 296, 299 (Ind. Ct.
App. 1991), trans. denied. Officers have an interest in assuring themselves that
the home is not harboring other persons who are dangerous and who could
unexpectedly launch an attack. Maryland v. Buie, 494 U.S. 325, 333 (1990).
Hence, law enforcement officers may make a cursory inspection of those spaces
where a person may be found to secure the crime scene and ensure
their safety. Id. Furthermore, police officers may seize any evidence that
is found in plain view during their protective sweep. Id.
In the instant case, the police received a call that LaMunion had shot
one of several intruders who had broken into his home looking for drugs
to steal. When the various officers arrived between 12:50 a.m. and 1:30
a.m. at LaMunions home, they quickly took control of the situation. The
body was located; a protective sweep was performed; LaMunion was sent to the
hospital; his girlfriend was taken to the station; a deputy was sent to
obtain a warrant; and a couple of officers waited at the home for
the warrant. The procurement of any evidence found in plain view during
the initial cursory protective search of the crime scene did not violate LaMunions
Fourth Amendment rights despite the lack of a warrant. See Mincey, 437
U.S. at 392; Buie, 494 U.S. at 333. However, by 3:30 a.m.,
when the extensive warrantless search was started, LaMunions home had been secure for
a long period of time. Accordingly, that same securing-the-crime-scene/exigent circumstances rationale did
not justify that search. See Mincey, 437 U.S. at 393 (noting that
a warrantless search must be strictly circumscribed by the exigencies which justify its
initiation) (quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)); see also Thompson
v. Louisiana, 469 U.S. 17, 22 (1984) (holding that although seizure of evidence
found in plain view during the limited victim-or-suspect search would have been appropriate,
the victim-or-suspect search had been completed at the time investigators arrived, and therefore
evidence obtained during warrantless search was inadmissible).
In support of its argument that the timing of the signature of the
warrant did not make the search illegal because probable cause existed and the
judge intended to issue the warrant, the State cites
Cutter v. State, 646
N.E.2d 704, 712 (Ind. Ct. App. 1995), trans. denied, and State v. Smith,
562 N.E.2d 428, 429 (Ind. Ct. App. 1990). We distinguish both cases.
In Cutter, the police sought and obtained a telephonic search warrant.
646 N.E.2d at 707-09. After the warrant was served and the search
conducted, it was discovered that the testifying officer had not signed the transcript
and that the issuing judge had not certified the tape. Id. at
709. The oversights were later corrected, and we concluded that no reversible
error occurred. Id. at 707-13. In Smith, a judge held a
hearing, determined there was probable cause, and signed the original search warrant.
562 N.E.2d at 429. The police then served an unsigned copy of
the warrant on the defendant and conducted a search. Id. A
trial court later granted a motion to suppress the evidence found during the
search because the copy of the warrant that was served was unsigned.
Id. We reversed, concluding that the signature of the issuing judge is
a ministerial act, the omission of which does not invalidate a warrant where
the issuing judge found probable cause and intended to issue the warrant.
Id. at 429-30. Here, in contrast, the search was started before any
warrant was obtained. That is, the officers searched LaMunions home before any
judicial officer had made a probable cause determination. In doing so, the
officers violated LaMunions Fourth Amendment rights.
Although not entirely clear from its brief, the State may also be claiming
inevitable discovery. That is, even if the search was invalid as a
violation of LaMunions right to be free from unreasonable searches and seizures, the
compact and drugs eventually would have been found through the lawful means of
the search warrant that the judge issued at 4:57 a.m. However, this
theory does not save from exclusion the evidence obtained during the invalid search.
We addressed a very similar argument in Jorgensen and concluded, [w]ere this
the rule, no warrantless search supported by probable cause would be invalid.
526 N.E.2d at 1008. We explained:
In Nix v. Williams, [467 U.S. 431 (1984)], statements made by the defendant
which led police to the victims body were tainted as the product of
an illegal interrogation. The court held that if the prosecution can establish
by a preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means . . . then the deterrence rationale
has so little basis that the evidence should be received. Id.
at 444, 104 S.Ct. at 2509. In Nix, the government had
shown that the volunteer search party looking for the victim had come within
a short distance of the body and inevitably would have discovered it, allowing
admission of evidence of the bodys discovery and condition.
Accordingly, our courts have held that the fruit of the poisonous tree doctrine
has no application when the derivative evidence would inevitably have been discovered.
Herald v. State (1987), Ind. App., 511 N.E.2d 5, 8. Derivative
evidence secured as a result of information and leads obtained from an illegal
search constitutes fruit of the poisonous tree. Id.
The evidence found in Vondas house was not derivative evidence; rather it was
itself the product of the illegal search. Therefore, the taint may not
be removed even though this same evidence would have been discovered through lawful
The trial court did not commit error in ordering the evidence suppressed which
was the product of the illegal warrantless search.
Id. (footnote omitted). Likewise, the compact case was not derivative evidence,
but was itself the product of the illegal search. Consequently, the taint
may not be removed even though this evidence would have been discovered through
The State also points out that the officer who found the compact case
was under the mistaken impression that the warrant had already been obtained.
If the State means to argue the good faith exception, it does not
apply here because, as mentioned above, there was no warrant -- deficient or
otherwise -- at the time the search was conducted. See Cutter, 646
N.E.2d at 714-15 (citing Ind. Code § 35-37-4-5 and noting that information obtained
pursuant to an invalid search warrant is admissible if the officers executing the
warrant acted in good faith reliance upon the warrant).
In summary, the extensive search, which began at 3:30 a.m. and uncovered the
compact case, violated LaMunions Fourth Amendment rights. No valid exceptions to the
exclusionary rule apply. Accordingly, the trial court should have granted the motion
NAJAM, J., and VAIDIK, J. concur.
See Ind. Code § 35-48-4-6.
See Ind. Code § 35-48-4-11.
We heard oral argument of this case on November 16, 2000
at John Adams High School in South Bend, Indiana. We wish to
thank the schools administration, staff, and students, particularly those students and teachers involved
in the John Adams mock trial program. We also wish to commend
counsel for their excellent presentations.
In the alternative, LaMunion points out that the police searched for
items not listed in the warrant that was eventually obtained, thus exceeding the
warrants scope. That is, the warrant permitted a search for weapons, ammunition,
casings, and any evidence pertaining to a homicide. The officer who found
the compact admitted that no weapon or ammunition could fit in the compact.
However, the officer justified his action by claiming he recognized the compact
as drug paraphernalia and thus evidence pertaining to the homicide, since the 911
call indicated that the intruders were searching for drugs. In light of
our conclusion that the search was not performed pursuant to a warrant, this
argument is moot.
Actually, the State first argued that LaMunion waived review of the
issue because he failed to include a copy of the warrant in the
record. However, we ordered a
writ of certiorari for the relevant warrant.
Shortly before oral argument, we received a copy of the warrant, which
was issued at 4:57 a.m. and supposedly executed at 5:05 a.m. that same
LaMunion does not make a separate Indiana constitutional argument.
We are unconvinced by the argument that exigent circumstances existed that
night in the form of a snowstorm and LaMunions lack of a phone.
Any implication that the officers at LaMunions home could not communicate with
the station to determine whether the warrant had been obtained is belied by
the fact that the police radio was functional.