concluding that warrantless search of robbery suspect's unoccupied car near his home one day after robbery was unreasonable and that evidence seized during search must be suppressed: "The car was parked in a residential neighborhood and was surrounded by police cars. There was little likelihood that the car would be moved and thus lost to the police. There was neither a shortage of time nor an emergency."
How later courts described this case
- concluding that warrantless search of robbery suspect's unoccupied car near his home one day after robbery was unreasonable and that evidence seized during search must be suppressed: "The car was parked in a residential neighborhood and was surrounded by police cars. There was little likelihood that the car would be moved and thus lost to the police. There was neither a shortage of time nor an emergency."
- holding that because the search of the defendant’s car was unreasonable, the Indiana Constitution “mandate[d]” that the evidence found as a result of the search be suppressed
- referring to Article 1, Section 11, and declaring, “our state constitution mandates that the evidence found as a result of [an illegal] search be suppressed. Only by such suppression can the privacy of all Hoosiers be adequately protected.”
- concluding that the police violated Article 1, Section 11 of the Indiana Constitution when they searched the defendant’s car without a warrant
Written by the judges who cited it.
The opinion
SULLIVAN, Justice,
concurring and dissenting.
By saying that the failure to use a warrant is not per se unreasonable, the majority departs from this court’s long-standing interpretation of Article I, § 11, of the Indiana Constitution. 1 I dissent from this approach.
*82 I recognize that recent suggestions from academia that the Fourth Amendment warrant requirement be replaced with a “reasonableness” test 2 reinforce this court’s general willingness to explore new interpretations of our state Bill of Rights. See generally Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind.L.Rev. 575 (1989). But twice within the last eighteen months we have reiterated that Article I, § 11 “mirrors the federal protection” against warrantless entry into the home for purposes of arrest or search. Esquerdo v. State (1994), Ind., 640 N.E.2d 1023, 1026 ; Hawkins v. State (1993), 626 N.E.2d 436, 438-39 . And Esquerdo and Hawkins echo the decisions of this court prior to 1949, the year in which the Fourth Amendment became applicable to the states. 3 For example, in Shuck v. State (1945), 223 Ind. 155 , 59 N.E.2d 124 , we reversed a conviction for burglary on grounds that evidence obtained in a warrantless search had been admitted at trial. We said:
Given the fact that the evidence was procured by search of the defendant’s home in his absence and without his consent, only one other fact is material: Was there a search warrant? If not the inquiry is ended, the evidence inadmissible.
Shuck, 223 Ind. at 167 , 59 N.E.2d at 129 .
In my view, we would be well advised to follow precedent and not chart a new course that will cause substantial uncertainty both for police when they conduct criminal investigations and for defense counsel when they assess the admissibility of evidence. I also predict that this approach will require trial and appellate judges to make a whole new set of determinations as to whether this search or that is reasonable or not. These practical considerations are among the reasons why federal and Indiana courts have found warrant requirements in both the Fourth Amendment and Article 1, § 11. There is no reason to change that now.
In fact, after announcing that it is adopting a reasonableness test under Article I, § 11, the majority appears to decide today’s case based not on whether the search was reasonable, but on the failure of the police to obtain a warrant. That is, part I of the majority’s opinion suggests that the only thing that makes this particular search unreasonable is the absence of a warrant. The police had both an eyewitness description of the make, model, color, and approximate year of the getaway car and a virtual match as to the license plate. Under such circumstances, absent the warrant requirement, the search seems eminently reasonable.
The final paragraph of part I provides an eloquent rationale for the warrant requirement rather than an argument for a reasonableness test. I think that whether the search here was reasonable or not, the warrant requirement' serves an extremely valuable purpose in providing a bright line for both law enforcement personnel and courts as to what evidence will be admissible and what evidence will be suppressed.
Because the warrant requirement was not complied with here, and because no exceptions therefrom were available (as the majority makes clear in part II), I concur that the evidence seized in the automobile search should have been suppressed.
. I acknowledge that the court recently emphasized the importance of the "reasonableness” requirement in examining whether police conduct in taking and examining trash put out for pickup violated Article I, § 1. Moran v. State (1994), Ind., 644 N.E.2d 536, 539-41 . Upon *82 reflection, I believe the analysis contained in part I of that opinion was erroneous for essentially the same reasons I dissent today. However, I continue to concur in the result in Moran .
. For examples of this criticism of the warrant requirement, see Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv.L.Rev. 757 (1994) and Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich.L.Rev. 1468 (1985). For an effective rebuttal, see Carol S. Steiker, Second Thoughts About First Principles, 107 Harv.L.Rev. 820 (1994).
. Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).