Katharine C. Liell
Jeffrey A. Modisett
James D. Dimitri
Teresa D. Harper
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Katharine C. Liell
Jeffrey A. Modisett
James D. Dimitri
home without them, may the officer then return to seize the items without first obtaining a
search warrant? We conclude that, in the absence of exigent circumstances or some other
exception to the warrant requirement, such a seizure is prohibited by the Fourth Amendment
to the United States Constitution.
unlocked back door and seized the items.
Eighteen-year-old Matthew Middleton, the occupant of the upstairs bedroom, was subsequently charged with possession of marijuana, visiting a common nuisance, and possession of paraphernalia. He moved to suppress the evidence obtained during the warrantless search. After a hearing, the motion was denied. The trial court reasoned that:
the officer saw contr[a]band in plain view from a position within the house where he had a right to be. The officer never left the home area while calling his superiors for assistance. He had a right to re-enter and seize the contr[a]band and the related paraphernalia. The Defendant[']s rights to be free from unreasonable search and seizure were not violated due to the plain view exception to the need to obtain a search warrant.
The order on the motion to suppress was certified for interlocutory appeal and a divided
panel of the Court of Appeals affirmed the trial court in an unpublished memorandum
decision. We granted transfer.
Ct. 1371, 63 L. Ed. 2d 639 (1980). Plain view does not alter this basic tenet. The doctrine permits seizure of items viewed from a lawful vantage point but does not legitimize a warrantless presence. As explained in Texas v. Brown, where Justice Rehnquist wrote for the four-member plurality of the Court, if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. 460 U.S. 730, 739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). Although an officer has the option not to seize evidence perceived in plain view, this language suggests that the seizure must occur immediately, if it is to occur at all. Nothing suggests that having once viewed the item, the officer may seize it at any time in the future. Indeed, the seizure of contraband occurred as soon as it was identified in each of the relevant cases cited in support of this proposition in Brown. See Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); United States v. Lefkowitz, 285 U.S. 452, 458-59, 52 S. Ct. 420, 76 L. Ed. 877 (1932); Go-Bart Importing Co. v. United States, 282 U.S. 344, 349-50, 51 S. Ct. 153, 75 L. Ed. 374 (1931); Marron v. United States, 275 U.S. 192, 194, 48 S. Ct. 74, 72 L. Ed. 2d 231 (1927).See footnote 1 The same is true of the plain view cases decided after Brown. See, e.g., Minnesota
v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (applying the plain
view doctrine to contraband detected through the sense of touch); Horton, 496 U.S. at 131;
Arizona v. Hicks, 480 U.S. 321, 323, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).See footnote
The rationale of the plain view doctrine points in the same direction as these precedents. The basis for permitting a seizure under the plain view doctrine is essentially that the officer is where he or she is for other valid reasons. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Accordingly, there is no purpose to be served in refusing the officer permission to seize items meeting the Horton standard. But the officer's knowledge or conviction that evidence of a crime is to be found in a house is no basis for eliminating the requirement of a warrant. Once police
officers leave a home where they believe they saw evidence in plain view, they are in
essentially the same position as any officer with reliable information that contraband is in
a residence. In the absence of exigent circumstances or one of the other recognized
exceptions, the proper measure, and the only constitutional measure, is to obtain a warrant.
As a variant on its plain view contentions, the State argues that Middleton had no reasonable expectation of privacy in a house he opened to the public. Indeed, Middleton concedes that he did not have a reasonable expectation of privacy as to items left in open view during Rowans' visit. However, the expectation of privacy in one's home, although surrendered to permit the viewing of the house by prospective buyers, is not forever lost. Once Hipskind left the premises, the same considerations for a bright line rule resurrected the expectation of privacy in the home.
In sum, the bright line rule of the threshold of a residence remains inviolate. Police officers lawfully in a residence may immediately seize items found in plain view that satisfy the conditions of Horton. But if an officer leaves the residence, reentry is not justified in the absence of a warrant, the consent of the owner, or some other exception to the warrant requirement. The reasons for requiring judicial oversight of searches and seizures are firmly established in our federal and state constitutions. See, e.g., Coolidge, 403 U.S. at 467; Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995). They are fully applicable once a police officer has left the residence. Requiring a warrant under the circumstances of this case is a minimal burden in light of the magnitude of the privacy interest at stake. Indeed, during cross-examination, Hipskind agreed that it would take about 10 minutes to type in [the] 4
or 5 sentences necessary to secure a warrant.See footnote
Because the officers violated the Fourth
Amendment by reentering Middleton's home, the plain view doctrine cannot be invoked to
justify the warrantless seizure of evidence taken during that reentry. See Horton, 496 U.S.
B. Exigent Circumstances
As an alternative to the plain view doctrine, the State also argues the seizure was justified by exigent circumstances. Exigent circumstances justifying a warrantless search exist where the police have an objective and reasonable fear that the evidence is about to be destroyed . . . . Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind. 1994) (quoting Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991)). The State notes that the house was listed on the market and that Rowans or another agent could have shown it to other prospective buyers, any one of whom could have picked up the contraband. In addition, the State points out that after the officers left the house and returned for a third time with a warrant, they found that a vacuum cleaner had been run and the table top had been washed. Both of these purported exigencies, however, overlook the fact that Hipskind and the other officers were able to secure the area for the few minutes necessary to obtain a warrant. Securing the house eliminates any risk of destruction of evidence. If Middleton had returned home in the minutes needed to secure a search warrant, the police could have asked him to remain
outside. If he refused and entered the house, exigent circumstances may then have justified
the warrantless seizure of the contraband. Cf. Esquerdo, 640 N.E.2d at 1027-28 (finding no
exigent circumstances because the marked money and other drugs were bottled up in the
house, and there is little reason to believe that its occupants were alerted to the existence of
the undercover operation). None of these events transpired, however. Indeed, neither the
trial court nor the Court of Appeals' majority mentioned exigent circumstances as a basis for
avoiding the need for a warrant.
In sum, neither the plain view doctrine nor the exigent circumstances exception to the warrant requirement justifies the seizure of contraband during the second entry into Middleton's home. Accordingly, under the federal constitution, the evidence must be suppressed. Middleton also contends that the seizure constituted a violation of Article I, Section 11 of the Indiana Constitution. In light of our resolution of his federal constitutional claim, there is no need to address whether the seizure also violated the state constitution.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Katharine C. Liell Jeffrey A. Modisett
Teresa D. Harper Attorney General of Indiana
James D. Dimitri
Deputy Attorney General
SUPREME COURT OF INDIANA
MATTHEW MIDDLETON, )
Appellant (Defendant Below), ) 85S02-9812-CR-764
) in the Supreme Court
STATE OF INDIANA, ) in the Court of Appeals
Appellee (Plaintiff Below). )
SHEPARD, Chief Justice, concurring.
I join fully in the Court's opinion and write separately to observe that the Fourth Amendment violation in this case led solely
to suppression of certain items of physical evidence. The State is
still free to present Officer Hipskind's testimony that he observed
those pieces of evidence during his initial entry into the house as
it pursues the prosecution of Middleton.
from reentry of an individual's home under federal Fourth Amendment doctrine. See generally 3 Wayne R. LaFave, Search and Seizure § 7.5(c) (3rd ed. 1996 & Supp. 1999) (discussing the [d]elayed or renewed examination of objects in police custody under the Fourth Amendment). Cf. Brown v. State, 653 N.E.2d 77, 79-80 (Ind. 1995) (discussing the status of automobiles under Article I, Section 11 of the Indiana Constitution).
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