State v. Cook

BAKER, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s grant of Cook’s motion to suppress. In particular, I part ways with the determination that the State failed to establish a reasonable suspicion for seizing the trash in these circumstances. As a panel of this court acknowledged in Litchfield II:4

An anonymous tip is considered less reliable than a tip from a known informant. Anonymous tips must be accompanied by specific indicia of reliablility or must be corroborated by a police officer’s own observation in order to pass constitutional muster. Reasonable suspicion may be established by the totality of circumstances.

849 N.E.2d at 174 (emphasis added). Both the Litchfield I5 and Litchfield II courts condemned the notion of a “fishing .expedition,” or those seizures that involve “random searches or searches of those individuals whom the officers hope to find in possession of incriminating evidence.” Litchfield I, 824 N.E.2d at 364; Litchfield II, 849 N.E.2d at 174.

As the majority observes, our Supreme Court determined in Litchfield I that the standard for determining whether a “trash pull” is lawful is “essentially the same as is required for a ‘Terry stop’ of an automobile.” Id. (referencing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, I cannot agree with the result reached here — as well as that which was reached in Litchfield II — that the State failed to satisfy the Terry standard.

*487The standard of reasonable suspicion is not the same as probable cause. In particular, while reasonable suspicion requires more than -an inchoate or unparticularized hunch, it is a less demanding standard than probable cause and requires a showing of “considerably less” proof than what is required to establish wrongdoing by a preponderance of the evidence. Cardwell v. State, 666 N.E.2d 420, 422 (Ind.Ct.App.1996). Again, “reasonable suspicion” is determined on a case-by-case basis by examining the totality of the circumstances. Person v. State, 764 N.E.2d 743, 748 (Ind.Ct.App.2002). When determining whether reasonable suspicion exists, police officers may rely on a source that has proven credible and accurate in the past. Massey v. State, 816 N.E.2d 979, 988 (Ind.Ct.App.2004). Accurate information in the past that leads a police officer to a seizure of controlled substances is sufficient to demonstrate that the source is credible and reliable. Id. On the other hand, probable cause is established where a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of the premises, or person will uncover evidence of a crime. Walker v. State, 829 N.E.2d 591, 594 (Ind.Ct.App.2005), trans. denied.

When examining the record here, it is apparent to me that the police officers did not seize Cook’s trash in an arbitrary or random fashion with the mere hope of finding contraband. Rather, the record demonstrates that the State Police relied on a DEA list that had proven to be reliable for a number of years in determining the locations of marijuana cultivation activities. The information supplied to the officers repeatedly led them to individuals who had been engaged in such operations. Specifically, during the first year, thirteen of the fourteen trash pulls yielded some sort of drug paraphernalia. Tr. p. 13-14. During the second year, eight of seventeen trash pulls produced positive results, and in the' year that Cook’s trash was seized, each of the five trash pulls stemming from the DEA list yielded evidence of marijuana cultivation. Id. at 13-15. Three of the names from 2005 were derived from Worm’s Way, and all three individuals had been involved in marijuana growth. Id. at 15. In sum, Trooper Murphy testified that 92% of the names from the DEA list had illicit substances in their trash. Id. at 29.

When considering the DEA list that had been compiled from individuals who had purchased products from Worm’s Way and other growing companies, it is apparent that these lists had proven to be reliable in determining the locations of various marijuana cultivation operations. By the same token, random, arbitrary trash pulls would not routinely reveal contraband.

That said, I believe that the “specific indicia of reliability” requirement was satisfied- here under the Terry standard.Therefore, I reject the notion that the seizure of Cook’s trash was merely random and based on some inchoate hunch by police officers that Cook “might” be -in possession of contraband. For these reasons, I vote to reverse the trial court’s grant of the motion to suppress.

. State v. Litchfield, 849 N.E.2d 170 (Ind.Ct.App.2006).

. Litchfield v. State, 824 N.E.2d 356 (Ind.2005).