ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
INDIANA SUPREME COURT
ANDREW L. WARREN, )
v. ) 49S00-0011-CR-00634
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9907-CF-120834
On Direct Appeal
January 10, 2002
For a June 1999 incident involving two deaths, Andrew Warren was convicted of
two counts of murder
See footnote and one count of conspiracy to commit robbery.See footnote
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.See footnote 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.
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.
The defendant's convictions are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
Ind.Code § 35-42-1-1.
Footnote: Ind.Code § 35-41-5-2; Ind.Code §35-42-5-1.
Footnote: 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).