Sowers v. State

ATTORNEYS FOR APPELLANT

Kevin P. McGoff
Indianapolis, Indiana

Jessie A. Cook
Terre Haute, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

LAWRENCE D. SOWERS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 33S00-9807-DP-387
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable John L. Kellam, Judge
Cause No. 33C01-9806-CF-16
__________________________________________________________________

ON INTERLOCUTORY APPEAL

__________________________________________________________________
March 3, 2000

BOEHM, Justice.
This case involves the seizure of several items from a tent located
in the backyard of a residence. A valid search warrant had been obtained
for the residence. Although the tent was an area in which the occupant had
an expectation of privacy, we hold that the warrant was valid for a search
of the tent to the same degree as for any other structure within the
curtilage of a residence. Accordingly, the search did not violate the
Fourth Amendment or the Indiana Constitution. We remand this case to the
trial court with direction to deny Sowers’ motion to suppress.
Factual and Procedural Background
On June 19, 1998, a neighbor found the bodies of Tony Westfelt and
Crystal Neal in Westfelt’s apartment. Westfelt had been shot in the
forehead and Neal in the back. Police soon obtained information linking
Sowers to the killings. Ultimately Sowers was charged with two counts of
murder. Because the State filed a request for the death sentence, appeal
to this Court is proper.
This is an interlocutory appeal and trial is scheduled to begin in a
matter of weeks. We see no reason to provide a detailed recitation of
facts that may appear at the trial. It is sufficient for these purposes to
state that at a probable cause hearing in the early morning hours of June
21, police presented to the judge sufficient information to justify
issuance of a warrant for the search of a residence located at 801 West
Neely Street in Muncie, and seizure of “a silver in color revolver handgun,
with dark color grips” and other items “believed to be concealed in or
about said dwelling.” The judge was told that several hours earlier Sowers
had been sleeping in a tent behind the residence, and a warrant was also
issued for Sowers’ arrest.
Shortly before 3:00 a.m., several officers from the Henry County
Sheriff’s Department, the New Castle Police Department, the Indiana State
Police, and the Muncie Police Department executed the warrants. One group
of officers entered the front of the home and another group secured its
rear. As soon as the officers at the rear heard an entry at the front,
they began to search the three tents in the backyard. Sowers was found in
the tent nearest to the house and ordered to exit. As Sowers rose, an
officer saw a silver revolver near the area where he had been lying.
Sowers was arrested and the handgun and other items located in the tent
were seized approximately fifteen minutes later.
Sowers filed a motion to suppress all evidence seized from the tent on
the ground that the search of the tent was not authorized by the warrant
and therefore violated both the Fourth Amendment to the United States
Constitution and Article I, § 11 of the Indiana Constitution. After
extensive briefing by the parties and a hearing on the matter, the trial
court granted the motion to suppress all evidence seized from the tent
except the handgun. At Sowers’ request, the trial court certified the
ruling as to the gun for interlocutory appeal. This Court accepted
jurisdiction over the appeal and also granted the State’s request to file a
cross-appeal challenging the exclusion of the other items.
I. Fourth Amendment to the United States Constitution
“The Warrant Clause of the Fourth Amendment categorically prohibits
the issuance of any warrant except one ‘particularly describing the place
to be searched and the persons or things to be seized.’” Maryland v.
Garrison, 480 U.S. 79, 84 (1987) (quoting U.S. Const. amend. 4). The
Supreme Court of the United States has explained the purpose of this
requirement as the prevention of general or wide-ranging exploratory
searches. See id. Thus, the lawful scope of a search is “defined by the
object of the search and the places in which there is probable cause to
believe it may be found.” Id. at 84 (quoting United States v. Ross, 456
U.S. 798, 824 (1982)). It is sufficient that a warrant describe the place
to be searched in terms that an officer “can with reasonable effort
ascertain and identify the place intended.” Steele v. United States, 267
U.S. 498, 503 (1925).
The issue is whether the Fourth Amendment permits police officers who
secure a lawful warrant for a residence at a specific address to search a
tent in the backyard of that dwelling. The trial court held that the
search of the tent violated the Fourth Amendment. It correctly observed
that an occupant of a tent has a legitimate expectation of privacy
protected by the Fourth Amendment. See Haley v. State, 696 N.E.2d 98, 101
(Ind. Ct. App. 1998), trans. denied, 706 N.E.2d 175 (Ind. 1998) (table).
Because the warrant in this case did not specifically mention the tent and
the tent and residence were not used as a “collective dwelling,” the trial
court held that the search of the tent was outside the scope of the
warrant. In reaching this conclusion, the trial court relied on this
Court’s opinion in Figert v. State, 686 N.E.2d 827 (Ind. 1997), which
observed that “[a]s a general proposition, a search of multiple units at a
single address must be supported by probable cause to search each unit and
is no different from a search of two or more separate houses.” Id. at 830.
The rationale behind Figert and similar cases is the requirement that
probable cause must exist as to each separate unit of a multi-unit
dwelling—typically an apartment building, but in Figert a group of mobile
homes. See id. at 831 (“[T]he better practice is to obtain a separate
warrant for each residence or place unless police proceed under a
‘collective dwelling’ theory, in which case the facts supporting that
conclusion should be set forth.”); see also Watts v. State, 434 N.E.2d 891,
893 (Ind. Ct. App. 1982) (“[I]n situations involving buildings,
particularly dwellings with multiple occupants, search warrants have
generally been held to be invalid when they fail to specify which sub-unit
was to be searched.”). The same considerations do not apply when police
obtain a warrant for a single residence that may have a yard and perhaps
also outbuildings such as sheds, or in this case tents.
In Ross, the Supreme Court held that “a warrant that authorizes an
officer to search a home for illegal weapons also provides authority to
open closets, chests, drawers, and containers in which the weapon might be
found.” 456 U.S. at 821. We agree with the courts that conclude the same
reasoning applies to the yard and outbuildings of a single residence. As
the Ninth Circuit put it:
We are unable to identify a privacy based reason why this principle
should be restricted to the inside of a residence and stop at the
residence’s threshold to the backyard, or curtilage. If a search
warrant specifying only the residence permits the search of ‘closets,
chests, drawers, and containers’ therein where the object searched for
might be found, so should it permit the search of similar receptacles
located in the outdoor extension of the residence . . . .

United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996). The Ninth
Circuit further observed, correctly as far as we can determine, that
“[e]very published opinion addressing the issue has concluded that a
warrant authorizing the search of a residence automatically authorizes a
search of the residence’s curtilage.” Id.
Every value furthered by the Fourth Amendment remains intact if a
proper warrant for the search of a single residence also permits a search
of the yard or curtilage at the designated address. The proper procedures
to invoke judicial supervision have been followed, and a proper
justification for the intrusion has been established. The only issue is
whether a warrant is overbroad in its geographic scope or intentionally
restricted to a house itself. Neither is true here, given the designation
of the property to be searched as a “residence” at a single specified
address.
Finally, the authorities seem unanimous in permitting similar
searches. “Curtilage” originally appears to have meant the area within a
fence surrounding a structure, but is now used in this context without
regard to whether what is usually termed the “yard” is fenced or not. See,
e.g., United States v. Brown, 822 F. Supp. 750, 754 (M.D. Ga. 1993), aff’d,
50 F.3d 1057 (11th Cir. 1995) (table) (“The search warrant in this case
authorized intrusion into the area of highest expectation of privacy. It
seems logical and reasonable that a search warrant that authorizes
intrusion on this greater area of privacy would include authorization for
intrusion in the lesser area of privacy, the backyard.”); Barton v. State,
288 S.E.2d 914, 915 (Ga. Ct. App. 1982) (observing that “‘[p]remises’
contemplates the entire living area used by occupant” and upholding search
of a shed twenty feet behind the house); State v. Basurto, 807 P.2d 162,
165 (Kan. Ct. App. 1991), aff’d, 821 P.2d 327 (Kan. 1991) (upholding search
of a shed in the backyard of a residence, observing “[t]here appears to be
little doubt that a search warrant which describes only the residence of a
defendant will authorize the search of any vehicles or buildings within the
‘curtilage’ of that residence”); State v. Vicars, 299 N.W.2d 421, 425-26
(Neb. 1980) (upholding search of calf shed located on the other side of a
chain link fence and 100 feet from residence); State v. Trapper, 269 S.E.2d
680, 684 (N.C. Ct. App. 1980) (holding that a warrant for search of house
trailer also permitted search of tin shed approximately thirty feet from
trailer); State v. Stewart, 274 A.2d 500, 502 (Vt. 1971) (upholding search
of a tree located in the backyard of a residence).
Like the barn, garage, shed, and tree in the cited cases, Sowers’ tent
was a structure within the curtilage of a dwelling for which the police
secured a valid search warrant. As a result, when police obtained a valid
warrant to search the residence at 801 West Neely Street, they were also
authorized to search the tent in the backyard of the residence. The search
of Sowers’ tent and the seizure of items found in the tent did not violate
the Fourth Amendment under these curtilage cases. We see no reason to
disagree with these authorities and find no defect in a search that was
properly authorized. Indeed, a police officer specifically advised the
issuing judicial official that Sowers was in a tent in the backyard of the
residence.
Finally, because the officer who found Sowers ordered him out of the
tent several minutes before a different officer entered the tent to seize
the gun and the other items, the parties also discuss the effect of
Middleton v. State, 714 N.E.2d 1099 (Ind. 1999). That case held that an
officer who is lawfully in a home (in that case as a prospective buyer of
the house) and sees contraband (in that case marijuana and paraphernalia)
does not retain the privilege to seize the contraband under the “plain
view” doctrine after he leaves the premises. That doctrine has no
applicability when there was no termination of the officer’s authorization
to be on and to search the premises. The officers in the case at bar were
at the residence under a warrant authorizing a search of the entire
premises. They never discontinued the search and required no new authority
to enter and reenter the tent or any other room of the house or area within
the curtilage. Accordingly, Middleton has no application here.
II. Article I, § 11 of the Indiana Constitution
Sowers also contends that the search of his tent violates Article I,
§ 11 of the Indiana Constitution. The purpose of Article I, § 11 is “to
protect from unreasonable police activity those areas of life that Hoosiers
regard as private.” Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995) (citing
Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994)). As this Court explained
in Brown, a claimed violation of Article I, § 11 requires a determination
of whether the police behavior was reasonable. 653 N.E.2d at 79. Although
the existence of a valid warrant is one consideration in this
determination, it is not dispositive. See id.
For the same reasons explained above, we hold that the search of
Sowers’ tent was reasonable. Hours before the search, police obtained
credible evidence that Sowers was asleep in a tent behind the residence at
801 West Neely. They secured a warrant to search the residence at that
address and to arrest Sowers and seize a handgun and related materials
believed to be concealed “in or about” that dwelling. Under these
circumstances, the search of a tent behind the residence was eminently
reasonable and presented no violation of the Indiana Constitution.
Conclusion
This case is remanded to the trial court with direction to deny
Sowers' motion to suppress.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.