Robert P. Benavides v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
SHARPNACK, J., and MATHIAS, J., concur
This case considers the adminissibility into evidence of an audiotape of a 911 call.
Specifically, Benavides argues that portions of the 911 call are unintelligible, causing the jury to speculate about its contents. In Lamar v. State, the Indiana Supreme Court held that one of the foundational requirements for admitting an audiotape into evidence is that it “be of such clarity as to be intelligible and enlightening to the jury. Otherwise, it serves no beneficial purpose[.]” 258 Ind. 504, 282 N.E.2d 795, 800 (1972).Susan Litchfield v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]This rule requires that the audiotape be intelligible enough to be probative of the purpose for which it is being offered. And necessarily, the probative value must not be substantially outweighed by the danger of confusion or unfair prejudice. See Ind. Evidence Rule 403. The vast majority of cases addressing whether an audiotape is intelligible and enlightening to the jury involve situations where the meaning of the words on the tape is the reason that the tape is probative, for example: custodial interrogations of defendants, defendants’ statements to police, and confidential informants wearing wire transmitters. * * * In this case, however, the audiotape of Crystal’s 911 call was not admitted for the primary purpose of showing the meaning of the words on the tape. Rather, the State introduced the audiotape to show that a robbery occurred and to attack Benavides’ version of events—both of which could be shown without understanding what was being said during the unintelligible portions of the audiotape. * * *
The State did not offer the audiotape to create speculation as to what was being said during the unintelligible portions. Instead, the State offered the audiotape to contradict Benavides’ version of events in many respects, including his assertions that he had Jason’s permission to enter the apartment and that Crystal was not on the telephone, and to show that a violent crime more serious than theft was being committed due to Crystal’s hysterics. The audiotape was intelligible for these purposes and, in turn, was enlightening to the jury. Further, the probative value of the contents of the tape was not substantially outweighed by the danger of confusion or unfair prejudice. Because the audiotape was intelligible for the purposes for which it was offered and enlightening to the jury, the trial court did not abuse its discretion by admitting into evidence the audiotape of Crystal’s 911 call.
[“The Litchfields”] were charged with Possession of Marijuana, a Class D felony, and Maintaining a Common Nuisance, a Class D felony. They bring this interlocutory appeal from the denial of their motion to suppress evidence obtained through a warrantless search of their trash and subsequent search of their residence, which was pursuant to a search warrant. We affirm. * * *Martin J. Upp v. State of Indiana (5/19/04 IndCtApp) [Criminal Law & Procedure]The Litchfields argue that the warrantless police search of their trash was unreasonable, and therefore violated Article I, Section 11 of the Indiana Constitution. * * *
In turning to the Litchfields’ substantive argument, we note that our supreme court addressed trash searches under the Indiana Constitution in Moran v. State, 644 N.E.2d 536 (Ind. 1994). There, the Court rejected the two-prong test announced by the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), when analyzing the reasonableness of such searches under the Indiana Constitution. Moran, 644 N.E.2d at 540. The Katz test focuses upon the individual and societal expectation of privacy in determining whether a search is reasonable. Instead, our supreme court determined that the reasonableness of trash searches should be determined based on a totality of the circumstances. In so doing, the supreme court recognized that “Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside.” Nevertheless, the court concluded that the curbside search of Moran’s trash, which (1) was reached without trespassing on Moran’s property, (2) was performed at a time when neighbors would not be disturbed, and (3) was performed in a manner consistent with typical trash collection did not violate Article 1, Section 11. The Litchfields direct us to State v. Stamper, 788 N.E.2d 862 (Ind. Ct. App. 2003), trans. denied, which was decided by a different panel of this court. In Stamper, the Court of Appeals determined that an unwarranted search of trash, which was not placed out for collection, and which was reached by trespassing onto Stamper’s property, was unreasonable and suppressed the results of the search. The Stamper court held that “it is the entering onto private property that determines whether the search is reasonable, not how many feet the officer had to traverse to reach the garbage bag.” Stamper, 788 N.E.2d at 866 n.2.
We decline to follow Stamper to the extent that Stamper appears to have created a bright-line test for determining reasonableness. See footnote Instead, we will determine the reasonableness of the trash search based on the totality of the circumstances, consistent with Moran.
Here, while Trooper Ringer did trespass onto the Litchfields’ property to seize the trash bags, he did so in a manner consistent with the Litchfields’ regular trash collection service and at times that would not bring his police activities to the neighbors’ attention. Further, the containers were more than fifty yards away from the residence in an unfenced area of the front yard, shielded from view from the residence by several trees. These facts demonstrate that the area where the trash containers were located was not curtilage, i.e. connected with “the conduct of family affairs and for carrying on domestic purposes.” Taken together, we do not find the trash search unreasonable under the totality of the circumstances. Accordingly, the trial court did not err in denying the Litchfields’ motion to suppress. Affirmed.
DARDEN, J., concurs.RILEY, J., dissents with separate opinion:
* * Here, our review of the record reveals that not only had the Litchfields contracted with a private waste collection service company for the removal of their garbage, Trooper Ringer clearly trespassed onto the Litchfields’s property to seize the trash bags. As such, I find that the Litchfields’s expectation of privacy was reasonable, and thus, the trial court erred by denying their motion to suppress.Furthermore, the majority appears to curtail the Moran decision by introducing a new element to the test. In its analysis, the majority, after describing the area where the trash containers were held, concluded that “[t]hese facts demonstrate that the area where the trash containers were located was not curtilage, i.e.[,] connected with ‘the conduct of family affairs and for carrying on domestic purposes.’” Although the element of “curtilage” is frequently discussed under a Fourth Amendment analysis, a claim under Article I, §11 of the Indiana Constitution is analyzed independent of federal law. * * * To date, no reported Indiana cases have made a distinction between the curtilage of someone’s domain and other property for the purpose of the trespassing requirement under Moran. In its adoption of this distinction, the majority represents a sweeping change to, and in my opinion an unnecessary deterioration of, our supreme court’s liberal interpretation of Article I, §11 of the Indiana Constitution.
Defendant-Appellant Martin J. Upp (“Appellant”) appeals his convictions of glue sniffing, a Class B misdemeanor, Ind. Code §35-46-6-2; and public intoxication, a Class B misdemeanor, Ind. Code §7.1-5-1-3. * * *Williams Realty Four, LLP v. Barbara M. Hurst, Assessor of Pike Township, Marion County, et al. (5/18/04 IndTaxCt NOT FOR PUBLICATION) [Real Property Assessment]The State concedes that the evidence is insufficient to support Appellant’s conviction for public intoxication. Appellant mistakenly was charged under a prior version of Ind. Code §7.1-5-1-3. The version of the statute in effect at the time of the offense required the person’s intoxication to be caused by the person’s use of alcohol or a controlled substance as defined by Ind. Code §35-48-1-9. In the present case, the cause of Appellant’s intoxication was from sniffing glue. There was no evidence that his intoxication was the result of the use of alcohol or a controlled substance as defined by statute. Therefore, Appellant’s conviction of public intoxication is reversed. * * *
In order to convict Appellant of glue sniffing, the State had to prove that Appellant, with the intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingested or inhaled the fumes of model glue, or a substance that contains Toluene. Ind. Code §35-46-6-2. * * *
The evidence is sufficient to support the trial court’s conclusion that Appellant inhaled model glue with the intent to cause intoxication, stupefaction, or dulling of the senses. Reversed in part and affirmed in part. Remanded for expungement of Appellant’s conviction of public intoxication.
KIRSCH, C.J., and BARNES.J., concur.
The sole issue for the Court to decide is whether the Indiana Board erred in denying an obsolescence adjustment to Williams Realty’s improvement. * * * Williams Realty’s attempt to quantify the obsolescence of its property * * * is flawed. The obsolescence of a particular improvement is tied to the loss of the improvement’s income generating ability. “The income generated by an improvement is measured in real dollars, not [t]rue [t]ax [v]alue dollars.” Therefore, subtracting a real world dollar value from a true tax value dollar value is essentially meaningless. Accordingly, Williams Realty did not meet its burden in quantifying its request for obsolescence.Posted by Marcia Oddi at May 19, 2004 03:37 PM