dissenting.
I respectfully dissent from the majority's conclusion that Turner should have been permitted to withdraw his guilty plea in these cireumstances. In essence, I cannot agree that allowing Turner to withdraw the plea was "necessary to correct a manifest injustice." Nee Weatherford v. State, 697 N.E.2d 32, 34 (Ind.1998).
As the majority observes, our Supreme Court determined in Litchfield v. State, 824 N.E.2d 356 (Ind.2005), that in cases involving a "trash pull," a "requirement of articulable individualized suspicion, essentially the same as is required for a "Terry 3 stop' of an automobile, imposes the appropriate balance between the privacy interests of citizens and the needs of law enforcement." Id. at 364; see op. at 942. This court has previously held that a reasonable suspicion must be comprised of more than a police officer's general "hunch" or "unparticularized suspicion." Webb v. State, 714 N.E.2d 787, 788 (Ind.Ct.App.1999). And the facts supporting a reasonable suspicion that criminal activity is afoot must rise to some minimum level of objective justification. Shirley v. State, 803 N.E.2d 251, 255-56 (Ind.Ct.App.2004).
Before announcing this new standard, our Supreme Court in Litchfield pointed out that "[a] majority of states follow federal doctrine and hold that their state constitutions permit a warrantless search of trash that has been left out for collection based on a lack of a reasonable expectation of privacy." Litchfield, 824 N.E.2d at 359. This particular rationale is premised on the notion that by depositing the trash in a place accessible to the public for collection, "the depositor has relinquished any reasonable expectation of privacy." Id. (quoting State v. Sampson, 362 Md. 438, 765 A.2d 629, 634 (2001)).
When considering the cireumstances here, I note that the purpose of the exclusionary rule is to deter police misconduct. See Osborne v. State, 805 N.E.2d 435, 439 (Ind.Ct.App.2004), trans. denied. Prior to the rule announced in Litchfield, the conduct of the officers here was not unreasonable or improper, inasmuch as they were free to "grab" Turner's curbside trash without meeting any standard of individualized suspicion. See Moran v. State, 644 N.E.2d 536, 541 (Ind.1994) (holding that one who places trash bags for collection "intends for them to be taken up"). That said, it follows that Turner's decision to plead guilty was based-at least in part-on police activity that was proper at the time his trash was seized.
In my view, it is unfair to apply the "new" standard that was announced in Litchfield to the circumstances here and permit Turner to withdraw his guilty plea on the basis that the police conduct in seizing the trash may have been improper. While the police officers were not required to do so, they may very well have been able to point to additional factors that would have justified the trash pull under the newly announced Litchfield standard. We simply cannot glean from the record which party would have prevailed under Litchfield, as the State was not required to present any evidence at the time pursuant to this newly-announced standard. When considering the posture of this case and the cireumstances presented here, I believe that the rule announced in Litchfield should have prospective application only. Thus, I cannot agree with the majority's decision to permit Turner to withdraw his plea, as there is no "manifest injustice" to correct.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).