# Everroad v. State > Indiana Court of Appeals · April 15, 1991 · 570 N.E.2d 38 URL: https://www.frixlaw.com/law-library/cases/9709559 ## Case - **Full name:** Garnet D. EVERROAD and Gregory K. Everroad, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff - **Court:** Indiana Court of Appeals - **Decided:** April 15, 1991 - **Citations:** 570 N.E.2d 38; 1991 Ind. App. LEXIS 618; 1991 WL 59792 - **Precedential status:** Published - **Opinion:** Concurring in part by Sullivan - **Judges:** Ratliff, Robertson, Sullivan - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by Everroad v. State, 1992 Ind. LEXIS 132 (1992). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9709559 ## How later opinions describe it (automated extraction) - finding a delay caused by defendants' motion to continue, which was made "prior to the setting of a trial date, [was] not chargeable to the [defendants]" - rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence ## Opinion text SULLIVAN, Judge, concurring in part and dissenting in part. Without comment, I concur as to Issues Three, Five, Six, Seven, Eight, Nine, Twelve, Sixteen and Seventeen. Without comment, I concur in result as to Issues One, Four, Ten, Eleven and Eighteen. As to the other issues, and for reasons set forth, I concur in part, concur in result in part, and dissent in part. Of significant import, of determinative import in my estimation, are the issues concerning standing to challenge the *57 searches and, in light of the evidence seized, whether the evidence is sufficient to support the convictions. Each of the convictions challenged is for possession with intent to deliver. The majority holds on the one hand that both defendants lack standing to challenge the searches because neither of them had a sufficient degree of control over the premises or a reasonable expectation of privacy with respect to the house. On the other hand, the majority justifies the convictions upon the principle that both defendants were in constructive possession as to all five substances seized during the searches. I do not believe that Greg’s and Garnet’s circumstances are sufficiently similar as to dictate identical results with respect to the standing and constructive possession issues. First, however, I think it appropriate to consider a threshold matter as to the issuance of the original search warrant concerning an allegedly stolen television set. It is clear that the affidavit of the officer which resulted in the issuance of the warrant wholly failed to comply with the requirements of the statute in effect at the time in question. Acts 1977, Public Law 333 (I.C. 35-1-6-2) required that when, as here, the affidavit was based upon hearsay, “the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished.” Although the affidavit asserted that the source was “allegedly present” at the time of the theft and subsequent sale of the TV “to Greg Everroad”, it did nothing more than recite an unsupported conclusion that the unnamed source was credible. The affidavit was inadequate on its face. The warrant should not have issued. See Stabenow v. State (1986) 2nd Dist., Ind.App., 495 N.E.2d 197 . Furthermore, the testimony given during the hearing upon the Motion to Suppress, casts extreme doubt upon whether there was ever any connection between Greg Everroad and a stolen television set. The testimony certainly reflects that the alleged connection definitely did not come, if at all, from anyone associated with the theft or a sale. It may well be that a search warrant, issued upon the basis of conscious misrepresentations, is void. See Franks v. Delaware (1978) 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 . In Mason v. State (1989) Ind., 532 N.E.2d 1169 , cert. denied 490 U.S. 1049 , 109 S.Ct. 1960 , 104 L.Ed.2d 428 , our Supreme Court succinctly stated: “A false affidavit generally renders á search warrant invalid and the fruits of any search made pursuant to it are generally suppressible.” 532 N.E.2d at 1170 . In such instance, it may not be necessary that a defendant have “standing” to challenge the warrant, so long as the defendant is able to show that the falsity was essential to the probable cause determination made by the issuing magistrate. In any event) the falsities in an affidavit must be disregarded when considering the adequacy of the affidavit vis a vis the issuance of the warrant. It must be noted further, that the “good faith” exception of U.S. v. Leon (1984) 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 is inapplicable because here the officer who made the defective affidavit was the same officer who served the warrant and conducted the search. But even Leon itself recognized that where a Fourth Amendment violation has been “substantial and deliberate” the evidence so obtained should be suppressed. 104 S.Ct. at 3413 . The protections of the United States and Indiana Constitutions do not apply, disappear or become ineffective depending upon the degree of favor or disfavor with which we might view the particular defendants or relative seriousness with which we view the crime involved. The protections are to be afforded all persons including those whom we do not like and who are less than upstanding, law-abiding pillars of the community. The “war on drugs” is of extreme importance to all communities and it must be vigorously waged by law enforcement officers and prosecutors. Members of the judiciary, however, may not enlist as battlefield commanders to the detriment of the duty to fairly and impartially administer *58 the laws and apply constitutional provisions. Be that as it may, and even if the standing requirement is present for a challenge to a warrant issued as a result of such impermissible tactics, that requirement does not lead to a validation of all the convictions of these two appellants. The above facts and legal considerations justify very close scrutiny of the standing issue. The majority disposes of the challenge to the searches upon grounds that both Greg and Garnet Everroad lack standing because each of them had no reasonable expectation of privacy as to the place described in the search warrant and had no degree of control over the premises. The State, in raising the issue of standing, did not assert a lack of standing on the part of Greg. The issue was presented only with respect to Garnet. Accordingly, there was no reason for Greg to respond to the contention, nor did he do so. It is understandable that the State would not challenge Greg’s standing because the search warrant was premised upon the allegation that the TV set was in Greg’s possession at the described residence location. In addition, the eight officers who entered, four from the front and four from the rear of the house (an awesome display of manpower to merely seek out a television set) to serve the warrant did not attempt to read the warrant to Jean Everroad, the owner of the residence who was in the living room at the time. Rather, Officer Coon, who had the warrant, waited until Greg entered the room and sat down before reading the warrant and seeking Greg’s permission to make the search. For this reason, I fail to discern the merit in holding that both defendants lack standing. The majority avoids the illegality of the search by holding that the defendants and each of them, as a matter of law, had virtually-no degree of control or expectation of privacy and such control as existed was “completely defined by, subordinate to, and dependent upon, the will of [their] mother and her right to control the entire premises.” (Opinion p. 46). We cannot have it both ways. We cannot validly state on the one hand that the two defendants lacked sufficient control of the premises to give them standing to challenge the search, while on the other hand justify the convictions upon the rationale that both defendants were in sufficient control of the premises as to be in constructive possession of all five substances found in various locations within the house. Notwithstanding that the original warrant was perhaps based upon fabrication and appears to have been a pretext for gaining entrance to the Everroad house, I agree that it is not unreasonable, under the evidence, to hold that Garnet lacked expectation of privacy as to the house. I conclude otherwise as to Greg. If the search were valid as to Greg, I would have absolutely no hesitation in voting to affirm his convictions. His factual connection and relationship to the premises leads to my conclusion that he was sufficiently in control to be guilty of constructive possession of the drugs found at the various locations. See Fassoth v. State (1988) Ind., 525 N.E.2d 318 . This very custodial connection, however, belies the majority determination that Greg lacked standing to challenge the search. In stating that the “Everroads did not have exclusive possession of the home in which the contraband was found” (Opinion p. 53), the majority appears to acknowledge that they had some degree of possessory and custodial relationship with the property. Were it otherwise, it would seem that the next link in the chain of elements for conviction could not be forged. The ability and intent to control required for constructive possession could not be established. The majority specifically recognizes the need for more than mere presence to prove constructive possession. “Additional circumstances” must be present in order to establish the “intent and capability to maintain dominion and control”. (Opinion p. 53). Where a possessory interest in the premises is proved, such is not, standing alone, sufficient to show an intent to control drugs located within the premises, if the possessory interest is non-exclusive. Rumple v. State (1988) 2nd Dist., Ind.App., 529 *59 N.E.2d 861 , trans. denied; Burgin v. State (1982) 2nd Dist., Ind.App., 431 N.E.2d 864 . This principle is not determinative with respect to Garnet’s convictions for possession of marijuana and hashish. Garnet’s hasty attempt to close the curtains screening the kitchen from outside view and his presence in the kitchen when the officers entered and found the marijuana and hashish in open view support his convictions as to those substances. As to Garnet, the evidence is insufficient with respect to the substances covered in the other three convictions. The deficiency is reflected in the following from Satterfield v. State (1984) 1st Dist., Ind.App., 468 N.E.2d 571, 574-575 , trans. denied: “Clearly, the word ‘possess’ encompasses within its meaning the elements of volition, intent and conscious knowledge, and these words are element of the offense here. The authority of Martin v. State, supra, and other cited cases is applicable. The prosecution made no showing through statements or admissions of the origin of the bombs that Satterfield personally possessed the items, or that he made efforts to hide them. There was not even any showing that the room, or desk, in which the bombs were found was habitually used by Satterfield. In short, there was simply no additional evi-dentiary link, apart from the nonexclusive possession, to show constructive possession.” It is of no moment that the contraband in Satterfield was bombs rather than drugs. Martin v. State (1978) 2d Dist., 175 Ind.App. 503 , 372 N.E.2d 1194 , relied upon by Satterfield was a drug case. In Martin, it was noted that: “Mere presence in the vicinity or association with one having possession of drugs is not sufficient to sustain a conviction. See Ledcke v. State (1973) 260 Ind. 382 , 296 N.E.2d 412, 416 ; Cannon v. State (2d Dist.1975) 166 Ind.App. 237 , 335 N.E.2d 229, 231-32 . Some additional, independent proof is necessary to pronounce as reasonable an inference that Linda Martin individually, or together with others, knowingly possessed the contraband.” 372 N.E.2d at 1178 . The evidence was found sufficient for the conviction of Linda Martin but was inadequate to convict the other co-defendant, James Martin. In that regard the court said: “This evidence merely shows that he had joint authority to control the room where concealed drugs were discovered and, without more, is not enough to sustain a conviction of knowing possession. 7 At the time Greg and Garnet were arrested only the marijuana and hashish had been discovered. No other contraband was discovered until after the officers had returned to Columbus and acquired a second search warrant and then returned to the house for a drug search. The conviction affirmance in Riding v. State (1988) 2d Dist., Ind.App., 527 N.E.2d 185 , dramatizes the inadequacy of the evidence to support Garnet’s convictions upon Counts One, Two and Three. In Riding the possession was premised upon the fact that the room in which the substance was found was locked, that defendant had the only key and that his personal papers and effects were found on the dresser in the room. The evidence recited by the majority with respect to Garnet’s lack of standing (Op. at 45-46) reflects a total lack of connection with the premises except for his mere presence in the house at the time. The evidence is wholly inadequate to prove that Garnet had the intent or the capability to control the cocaine, LSD, and methaqual-one which were the subject of Counts One, Two and Three. *60 I would concur in the holding of the majority to the effect that Garnet lacked standing to challenge the search. I would also concur that notwithstanding his lack of control or expectation of privacy as to the premises, Garnet was in constructive possession of the marijuana and hashish which was in the kitchen at the time he was also present in the kitchen. I would therefore affirm Garnet’s conviction as to either Count Four or Count Five (see majority opinion as to Issue Fourteen) but would reverse as to Counts One, Two and Three. In summation with respect to the challenges to the search, I would hold that the initial search and all evidence seized as a result of that or subsequent searches should have been suppressed as to Greg Everroad. For this reason, I would reverse all five of his convictions. As to Garnet Everroad, I agree that he lacks standing to contest the search and that his convictions for constructive possession of marijuana and hashish were sustained by the evidence. The evidence was not sufficient to support a conclusion that he was in constructive possession of the substances not found in open view in the kitchen. As to Issue Fourteen concerning sentencing upon all five counts, and for reasons heretofore stated, I dissent to the extent that the majority sanctions any convictions as to Greg, and I dissent to the extent that the majority affirms any conviction of Garnet except as to Count Four or Five. Issue Fifteen deals with consecutive sentencing. Because I would reverse all five of Greg’s convictions and would permit sentencing of Garnet only upon Count Four or Five, the matter of consecutive sentences is not, in my estimation an issue. - Joint occupancy of the room in which concealed drugs are found is not enough to sustain a conviction in those jurisdictions which adhere to the rule that knowing possession cannot be inferred from mere evidence of nonexclusive control of the premises. E.g., Smith v. State (1973) Fla., 279 So.2d 27 ; State v. Bowers (1974) 87 N.M. 74 , 529 P.2d 300 ; Mulligan v. State (1973) Wyo., 513 P.2d 180 ; People v. Davenport (1972) 39 Mich.App. 252 , 197 N.W.2d 521 ; Feltes et al. v. People (1972) 178 Colo. 409 , 498 P.2d 1128 ; Petty v. People (1968) 167 Colo. 240 , 447 P.2d 217 .” 372 N.E.2d at 1199 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709559. Public record. Not legal advice.