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Belvedere v. State

Court: Indiana Supreme Court
Date filed: 2008-06-27
Citations: 889 N.E.2d 286
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ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Christopher A. Cage                                        Steve Carter
Anderson, Indiana                                          Attorney General of Indiana

                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana
______________________________________________________________________________

                                           In the
                            Indiana Supreme Court
                           _________________________________
                                                                              FILED
                                                                           Jun 27 2008, 1:07 pm

                                   No. 48S05-0806-CR-370                           CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court
RALPH BELVEDERE,
                                                           Appellant (Defendant below),

                                               v.

STATE OF INDIANA,
                                                     Appellee (Plaintiff below).
                           _________________________________

             Appeal from the Madison Superior Court, No. 48D03-0406-FC-00303
                         The Honorable Thomas Newman, Jr., Judge
                          _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 48A05-0611-CR-669
                            _________________________________

                                        June 27, 2008

Boehm, Justice.

       On May 17, 2002, Madison County Drug Task Force’s Detective Kevin Earley received a
tip from a confidential source about a white man “by the name of Ralph” who lived at a specified
address.   The source took Earley to the address and said that he had “been in the house
approximately two days before” where he had seen “two pounds of marijuana.” The informant
also said that “within the last few months” he had seen “up to ten pounds of marijuana” in an
apartment behind the house that was also owned by “Ralph.” Earley ran a license check on the
truck parked in the driveway and learned from the Anderson City utilities that the owner of the
property was Ralph Belvedere. Earley placed surveillance on the house. On May 19, Earley
seized a trash bag set out in the alley behind Belvedere’s apartment. In the trash, he discovered
seeds, stems, and material which were later confirmed to be from marijuana plants. Based on
this evidence, Earley obtained a search warrant, and seized over ten pounds of marijuana.

       On June 10, 2004, Belvedere was charged with Class C felony possession with intent to
deal marijuana and Class D felony maintaining a common nuisance. On March 23, 2005, we
decided Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). On October 14, 2005, Belvedere moved
to suppress the evidence from the trash pull, citing Litchfield. The trial court denied the motion
to suppress, but the Court of Appeals reversed. Belvedere v. State, 875 N.E.2d 352 (Ind. Ct.
App. 2007). The Court of Appeals held that Litchfield governed this search, the search was
unconstitutional under Litchfield, and neither the statutory nor constitutional good faith
exceptions applied. Id. at 357, 362-63. We grant transfer concurrent with this opinion.

       We review de novo a trial court’s ruling on the constitutionality of a search or seizure.
Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005). However, we give deference to a trial
court’s determination of the facts, which will not be overturned unless clearly erroneous. Id.
Thus, we do not reweigh the evidence, but consider conflicting evidence most favorably to the
trial court’s ruling. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006).

       For the reasons explained in Membres v. State, No. 49S02-0701-CR-33, ___ N.E.2d ___,
slip op. at 11 (Ind. June 27, 2008), also decided today, “challenges to pre-Litchfield searches that
did not raise Litchfield-like claims in the trial court before Litchfield was decided are governed
by pre-Litchfield doctrine.” Because Belvedere’s challenge to this pre-Litchfield search was first
raised after Litchfield was decided, Litchfield is not available to him in this appeal.

       This trash search is governed by the law as articulated in Moran v. State, 644 N.E.2d 536
(Ind. 1994), which looked to the totality of the circumstances to evaluate the reasonableness of a
search and seizure. In Moran, we upheld a search and seizure of garbage left in front of the
defendant’s house, noting that the police conducted themselves as trash collectors, did not
disturb Moran or his neighbors, and did not trespass. Id. at 541. Similarly, in Lovell v. State,
813 N.E.2d 393, 398 (Ind. Ct. App. 2004), the Court of Appeals upheld a trash search under




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Moran where the trash bags were next to the mailbox, other people had trash out, and there was
no indication of trespass or disturbance of the neighbors.

       In this case, a confidential informant told Detective Earley about the presence of drugs,
gave a name and description of Belvedere, and took him past Belvedere’s house. Earley verified
Belvedere’s identity by running a license check on the parked vehicle and checking utility
records. Earley testified that the trash was sitting out in an alley, presumably to be collected, and
there is no argument that Earley failed to retrieve the trash in the same manner as a trash
collector, bothered any neighbors, or trespassed. Thus, the trash search was reasonable under the
law at the time of the search.

                                            Conclusion

       The trial court’s denial of the motion to suppress the evidence of the trash search is
affirmed.

       Shepard, C.J., and Dickson, J., concur.

       Sullivan, J., dissents, for the reasons set forth in his dissenting opinion today in Membres
v. State, No. 49S02-0701-CR-33 (Ind. June 27, 2008) (Sullivan, J., dissenting).

       Rucker, J., dissents with separate opinion.




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Rucker, Justice dissenting.


       I respectfully dissent. For reasons expressed in my separate opinion in Membres v. State,
No. 49S02-0701-CR-33, ___ N.E.2d ___, ___ (Ind. June 27, 2008) (Rucker, J., dissenting), I
would apply Litchfield retroactively to this case. In so doing I agree with the Court of Appeals
that the search of Belvedere’s trash was unconstitutional and no statutory or constitutional good
faith exceptions apply. See Belvedere v. State, 875 N.E.2d 352 (Ind. Ct. App. 2007).




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