Question: Can Police Disregard “No Trespassing” Signs & Other Clear Warning That Visitors Are NOT Welcome On The Property And Search It?
Answer: It Depends On Reasonableness Of The Police Conduct Under The Totality Of The Circumstances, But Not In This Case.
In 2012, Detectives were looking for a suspect and found that his last address was listed as 6552 East Collins Lane in Bloomington, Indiana. Detectives went to Collins Lane looking for his address. They initially went to the front door of a house they thought was 6552 East Collins Lane and knocked on the door, but no one answered. They then looked at mailboxes located on the side of the road and decided to try another home located at the end of a long driveway. The detectives drove up the private drive for about 50 yards until they saw a cable stretched across the drive. The cable was fastened to two posts at opposite sides of the drive and secured by two padlocks, at least one of which was unlocked. Nearby, but not noticed by the detectives, was a “No Trespassing” sign located on a tree. Despite all of these clear warnings that visitors to the premises were not invited or desired, Detectives removed the cable from one of the padlocks, and lowered the cable so they could proceed to drive up the driveway. Detectives parked their cars approximately 70 to 100 yards from the mobile home and began to walk toward the home. In the process, they detected an odor of marijuana that seemed to be coming from the area of the garage. Defendant Jost came out of the garage, at which time the odor of marijuana became stronger. Jost was asked if the suspect was nearby, to which Jost responded negatively.
Thereafter, Janice Stam came out of the mobile home and informed the police that she was the owner of the property. She also told the police that she had lived there for over 20 years and had never heard of the suspect. Detectives asked Stam about the odor of marijuana and asked her if she wanted them to check to see if someone was smoking marijuana on her property. Stam said no, and refused the Detectives’ request for consent to search the property. Although the Detectives had not seen any weapons, they then secured Jost and Stam for purposes of officer safety and entered the mobile home, without a warrant, and brought out the 2 other occupants. When a detective asked again about the suspect, he was informed that the detectives were at the wrong address. The suspect’s address was 6552 East Collins Lane, but Stam’s property was located at 6225 East Collins Lane. Based on the odor of marijuana they had smelled, and the presence of plants near the mobile home that they believed to be marijuana, the detectives applied for and received a search warrant for the premises. During the execution of this warrant, the police discovered over 100 marijuana plants. As a result, the State charged Mundy with conspiracy to commit dealing in marijuana and maintaining a common nuisance. The State charged Jost with conspiracy to commit dealing in marijuana.
Prior to trial, the Defendants filed motions to suppress the evidence seized during the execution of the warrant. The trial court held a hearing on these motions, and following briefing by the parties, denied the motion to suppress. The Defendants moved the trial court to certify its order for interlocutory appeal, and this appeal ensued.
On Appeal, the Defendants claim that the police action here violated their rights under both United States and Indiana Constitutions. The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. When considering the totality of the circumstances, we must consider both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure. Although there may well be other relevant considerations under the circumstances, the reasonableness of a search or seizure turns on a balance of: (a) the degree of concern, suspicion, or knowledge that a violation has occurred, (b) the degree of intrusion the method of the search or seizure imposes on the citizens’ ordinary activities, and (c) the extent of law enforcement needs. The degree of intrusion is evaluated from the defendant’s point of view. The present case where the police disregarded the “gate” and the signs indicating that visitors were not welcome. Under the facts and circumstances of the present case, the Court of Appeals concluded that the conduct of the police detectives was not reasonable. The detectives’ intrusion onto the property at issue therefore ran afoul of the Indiana Constitution. The search warrant that was subsequently issued based upon what the detectives observed on the property was therefore also improper. For all of these reasons, we reverse the trial court’s order denying the Defendants’ motions to suppress, and remand for proceedings consistent with this opinion. 21 N.E.3d 114