ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
ANDREW L. WARREN, )
Defendant-Appellant, )
)
v. ) 49S00-0011-CR-00634
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9907-CF-120834
________________________________________________
On Direct Appeal
January 10, 2002
DICKSON, Justice
For a June 1999 incident involving two deaths, Andrew Warren was
convicted of two counts of murder[1] and one count of conspiracy to commit
robbery.[2] In this appeal he argues that the trial court committed
reversible error by denying his motion to suppress predicated on a faulty
search warrant.
After finding two victims of fatal gunshot wounds, the police
concluded that the crime scene was the result of a captive getting free and
shooting his attacker. Evidence at the scene also led police to believe
another person was involved. The police identified the deceased attacker
as Christopher Fox and sought a warrant for his residence to gather
evidence of the scheme that resulted in the deaths of the two men. Fox's
apartment lease also listed Aaron Warren as an occupant of the apartment.
While executing the warrant the police discovered identification cards and
driver's licenses in the names of both Aaron and Andrew Warren. These
documents bore the pictures of the same person. After learning that Aaron
Warren could not have lived in the apartment in 1999, the police
investigation focused on Andrew Warren, eventually resulting in his
convictions and this appeal.
The defendant contends that the search was improper because it was
executed pursuant to a general warrant which granted unbridled discretion
to the police regarding the items sought in violation of the search and
seizure clauses of the United States and Indiana Constitutions.[3] The
Fourth Amendment to the United States Constitution requires search warrants
to "particularly describ[e] the place to be searched, and the persons or
things to be seized." U.S. Const. amend. IV. The United States Supreme
Court has stated:
General warrants, of course, are prohibited by the Fourth Amendment.
"[T]he problem [posed by the general warrant] is not that of intrusion
per se, but of a general, exploratory rummaging in a person's
belongings. . . . [The Fourth Amendment addresses the problem] by
requiring a 'particular description' of the things to be seized."
Coolidge v. New Hampshire, 403 U.S. 443, 467[, 91 S.Ct. 2022, 2038-39,
29 L.Ed.2d 564, 583] (1971). This requirement "'makes general
searches . . . impossible and prevents the seizure of one thing under
a warrant describing another. As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant.'"
Stanford v. Texas, 379 U.S. 476, 485[, 85 S.Ct. 506, 512, 13 L.Ed.2d
431, 437] (1965), quoting Marron v. United States, 275 U.S. [192, 196,
48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927)].
Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d
627, 642 (1976). A warrant that leaves the executing officer with
discretion is invalid. Hester v. State, 551 N.E.2d 1187, 1190 (Ind. Ct.
App. 1990).
In this case the warrant listed the items to be seized as "guns,
ammunition, gun parts, lists of acquaintances, blood, microscop0ic [sic] or
trace evidence, silver duct tape, white cord and any other indicia of
criminal activity including but not limited to books, records, documents,
or any other such items." Supp. Record at 20. The defendant argues that
this warrant is "without any practical limit as to the items for which a
search may be conducted." Br. of Appellant at 16. We agree that the
phrase "any other indicia of criminal activity including but not limited to
books, records, documents, or any other such items" grants an officer
unlawful unbridled discretion to conduct a general exploratory search. The
infirmity of this catchall language does not doom the entire warrant,
however, but rather only requires the suppression of the evidence seized
pursuant to that part of the warrant but not the suppression of the
evidence obtained pursuant to the valid specific portions of the warrant.
See United States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001); United
States v. Reed, 726 F.2d 339, 342 (7th Cir. 1984).
The defendant argues that the identification cards and driver's
licenses were seized pursuant to the catchall language. We disagree.
Because they contained photos depicting the same person as Fox's roommate,
the identification cards are within the "lists of acquaintances"
description on the search warrant. The police properly seized these items
because they were particularly described in the warrant.
We discern no error in the denial of the defendant's motion to
suppress.
Conclusion
The defendant's convictions are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-41-5-2; Ind.Code §35-42-5-1.
[3] Because Warren does not argue that the search and seizure
provision in the Indiana Constitution requires a different analysis than
the federal Fourth Amendment, his state constitutional claim is waived, and
we consider only the federal claim. Williams v. State, 724 N.E.2d 1093,
1097 n.5 (Ind. 2000); Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind.
1998); Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993).