Petition — May v. Indiana

On y ween

Supreme Court, U.

FILED’

* 1972

IN THE SUPREME COURT OF THE UNITED STATES

AA, JR. CLERK

OCTOBER TERM, 1977 a

No. ”44- 13 85

GARY ALLEN MAY,

Petitioner.

-VS-

STATE OF INDIANA,

a i i i ee ee el Sl

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF INDIANA

K. RICHARD PAYNE

3925 North College Avenue |

Indianapolis, Indiana 46205

ATTORNEY FOR PETITIONER

ON PETITION

DAVID FREUND

3925 North College Avenue |

Indianapolis, Indiana 46205

Opinion Below.

SUreneeeerel.« « 6s «6 « «@ w 2

Question Presented ....., 3

Constitutional Provisions. .. 3

Statement of the Case. ..., 4-8

Summary of Argument. , 7-8

Argument . ° 9-27

Conclusion. , ‘ 27-29

ee ee al a a ea A

eee | Ck tat ea ee

ee eS Cte eae ees

TABLE OF CASES

Alcorn v. State (1970), 255 Ind.

een Ge we me ee Gees 2 wee eS

Brock v. United States, (1955

Sth Cir), 223 F 2d 681;. .

Brown v. State, 15 Md App.

Soe. aun & BO Fel COTE) . 2 6 es

California v. Hurst, (1963

oo. Bo ee . os. eg | eee

Coolidge v. New Hampshire, 403 U. S.

443, 91 S. Ct. 2022 29L. Ed 2d 564 ,

(1971).

Davis v. United States, 327 F 2d

a Sonn 2 a) «eo ew oe eo ee

Fixel v. Wainwright, — 5th

Cir.), 492 F. dd THO ; :

ul lbright v. United States imal

Haerr v. United States, 5th Cir.

1957, 240 F 2d. 533, 535 . . - . °

Hester v. United States, (1924)

265 N. a 57. ° ° ° bd ° ° . . s&s

Johnson v. United States, 333 U. S.

TO, 68 S. Ct. 367, 92L Ed 436 (1948)

Jones v. United States, 357, U. S.

493, 78S. Ct. 1253, 2L Ed. 2d 1514

(1958). . . . . . . . . . . .

ii

Page

25

Katz v. United States, 389 U. S.

347, 357, 88 S. Ct. 507, 514,

ew, BG. OO GFE. 6 se th we 8

Lewis v. United States, 385,

U.S. 206, 87 S. Ct. 424, 172

EG. OO Boece «0 « cs ee 6 8 ee 8

Marshall v. United States

(5th Cir. 1970) 422 F. 2d 185,

at 496 of 255 Ind., at 416 of

2 a ee ae ee eee eee

State v. Ballinger, 504 P 2d 955 .

State v. Spietz, 531 P 2d

Say Sees CEeEes. * 6-6 eee * &

State v. Warness, 26 Arz. App.

359, 548 P. 2d 853

Steele, v. United States,

Da eae

69 L Ed. 757 (1925 sae: ae >

Taylor v. United States, 286 U. S.

52S. Ct. 466, 76L Ed 951 (1932)

Texas v. Gonzales, (1968, 5th Cir.)

| 5 8 ieee

Trupiano v. United States, 334 U.

.. %& £%% eee

United States, v. Calhoun, 542 F

a oe Cee «6 «es se «%

United States v. Davis, (1970,

Sth Cir.), 423 F. 2d 974... ..

Watten v. United States (1968)

Ps F eon

1

>.

Page

. 10

16

» 82

24

23, 25

26

—

» 23

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

GARY ALLEN MAY,

Petitioner.

)

)

)

STATE OF INDIANA, |

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF INDIANA

Gary Allen May, by his attorney

K. Richard Payne, prays that a writ of

certiorari issue to review a) the

judgment of the Supreme Court of Indiana

in denying transfer and b) the judgment

and opinion of the Indiana Court of

Appeals upon May's conviction for

possession of Marijuana in violation of

IC 1971, 35-24. 1-2-4 (d) (10) (Burns

Code Ed.)

OPINION OF THE INDIANA COURT OF APPEALS

The opinion of the Indiana Court of

Appeals has been officially reported, and

is cited in 364 NC 2d 172. A copy is re-

produced herein as Appendix "A" to this

petition.

JURISDICTION

1. The judgment of the Court of

Appeals of Indiana was entered on

July 5, 1977.

2. A timely Petition for Re-

hearing was filed with the Clerk of the

Court of Appeals on July 22, 1977.

A copy is reprodeced herein as Appendix

“— 3

3. A Petition for Transfer was

filed with the Indiana Supreme Court

on September 1, 1977 and denied on

December 5, 1977. A copy is reproduced

herein as Appendix "C"..

4. The jurisdiction of this Court

is invoked under the provisions of

Title 28, United States Code, 1257 (3)

QUESTIONS PRESENTED

1. Were rights of the defendant under

the Fourth and Fourteenth Amendment to the

Constitution of the United States violated

when the trial court allowed into evidence,

over the objection of the defendant, contra-

band seized under the "plain view" doctrine?

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the Constitution

of the United States reads as follows:

"Unreasonable searches and

seizures.--The right of the people

to be secure in their persons,

houses, papers, and effects,

against unreasonable searches and

seizures, shall not be violated, and

no warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly de-

scribing the place to be searched,

and the persons or things to be

seized."

Section 1 of Amendment 14 to the

Constitution of the United States reads

as follows:

"Citizenship--Due process of the

law--Equal protection.--All persons

born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the

United States, and of the state

wherein they reside. No state

shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the

United States; nor shall any

state deprive any person of life,

liberty, or property, without due

process of law; nor deny to any

person within its jurisdiction

the equal protection of the laws."

STATEMENT OF THE CASE

On the evening of July 30, 1974,

two on-duty narcotics officers From the

Allen County Sheriffs Department,

Officers Charles Meeks and Joel Working,

entered the private property of Gary May

at approximately 10:30 p.m. Their pur-

pose, according to Working, was speci-

fically to look for two particular

juveniles (Tr. P. 126.) The Allen

County Sheriffs Department maintained

a separate and different Juvenile Aid

Division whose particular responsibility

was runaway juveniles. (Tr. P. 39).

Meeks and Working were assigned to

narcotics (Tr. P. 39).

Officer Meeks had received twenty-

seven (27) day old information that

two (2) juveniles named Bodenheimer

were missing from their homes (Tr. P. 62).

He also had ten (10) day old information

from an unnamed informant which did not

deal specifically with the Bodenheimer

girls (Tr. P. 104).

The testimony is conflicting in

that Meeks stated that the information

was not that the girls were there; only

that they might be there (Tr. P. 44).

However, the affidavit for probable cause

later filed in connection with Mays case

listed information that juveniles were

residing at 5710 E. Dupont Road (Tr. P 42),

He also stated that the house at 5710 E.

Dupont Road had been known for the

congregation of juveniles.

The officers approached the rural

country house and used the standard

surveillance technique of driving by

the property and looking at the grounds.

They drove by the address, then turned Gary May was arrested for possession of

around and drove by again (Tr. P 48). . marijuana. At the hearing on the oral

They turned around again and then went motion to suppress held immediately be-

back to May's address. They saw a fore trial, the officers testified that de-

female figure in the front yard but spite their suspicious information, no

couldn't determine her age because it search warrant had been issued for that

was dark (Tr. P. 108). address or arrest warrant for the occupant

The officers parked at the end of (Tr. P. 45). Narcotics Ifficer Meeks

the driveway away from the house it- testified that he was not in hot pursuit

self. Officer Working stated that , of a felon, that he had no invitation to

Officer Meeks met the defendant at a . enter the property, and that in fact no

distance of about twenty (20) feet | emergency existed (Tr. PP 45-46,63).

(tr. P. 119) from the front of the There was no prior establishment of the

door. May immediately told him to leave unnamed informer's credibility or relia-

in harsh terms (Tr. P. 46-51). As the bility (Tr. P. 66). No juveniles were

officer brushed by May, he stated that even found at the Dupont Road address.

he observed marijuana through the lighted May was convicted and sentenced to

front of the kouse. Shortly after Meeks - five (5) years imprisonment.

met May, Meeks was in the house (Tr. P.110). SUMMARY OF ARGUMENT

Meeks walked past and around May as May In summary, petitioner argues that

restrained Meeks all the while Meeks was the police officers were not in a place they

walking into the house (Tr. P. 110). had a right to occupy at the time the

ARGUMENT

Marijuana was observed, and thus the A.

"nlain view" doctrine would not re-

In Katz v. United States, (1967), 389 N.

lieve the officers of the responsi-

S. 347, the U.S. Supreme Court ruled that the

bility of obtaining a warrant based

Fourth Amendment protected those areas in which

upon probable cause before intruding

a person has a reasonable right to expecta-

upon the premises of Mr. May to

tion of privacy from unreasonable governmental

determine whether juveniles were

intrusions. It has been routinely held that a

present. Second, assuming for arqu-

person's home and the immediate area surround-

ment purposes only that the police

ing it are such that there is a reasonable

could come on to the property late

expectation of privacy especially

at night for ar investigatory pur-

during the night time hours.

pose, the facts of this case dictate

United States v. Davis, (1970, 5th Cir).

that the “open view" doctrine in 423 F. 2d 974;

dispositive (as opposed to the legal Texas v. Gonzales, (1968, 5th Cir).

366 F. 2d >

principle of plain view) and that a

Brock v. United States, (1955 5th Cir).

warrant was still necessary as the 223 -. 2d 661; °°»

officer himself stated that no et v. United States (1968 10th Cir).

emergency existed at the time the

Fixel v. Wainwright, (1974, 5th Cir),

contraband was seized (Tr. P 63). 192 Ftd 400;

Watten v. United States, (1968, 9th Cir).

366 F. 2d 653; and,

California v. Hurst, (1963, 9th Cir).

Pe ee 2)

In Coolidge v. New Hampshire, 403

U. S. 443, 91S. Ct. 2022, 29 L. Ed 2d

546 (1971) this Court established a

rational standard governing police con-

duct in the protection of the 4th Amended

Constitutional rights by strictly limit-

ing warrantless searches to specifically

listed exceptions:

"3. The valid presence inside a

‘constitutionally protected area'

for some legitimate purpose other

than the search for evidence of

the accused,"

91S. Ct. at 2038

The Court referred as example to Lewis

v. U. S., 385, U.S. 206, 875 Ct.424 17

L. Ed 2d 312 where an undercover agent

had been present by invitation.

The Court stated:

"What the plain view cases have

in common is that the police officer,

in each of them, had a prior justifi-

cation for intrusion in the course of

which he came inadvertently across a

piece of evidence incriminating to the

accused...the plain view doctrine may

not be used to extend a general explor-

atory search from one object to another

until something incriminating at last

emerges. 403 U.S. at 466-67, 91S. Ct,

at 2038."

10

In its opinion in this cause, issued

on July 5, 1977, the Indiana Appeals Court

held that Allen County Sheriff's Officer

Meeks had sufficient legal cause of right

for his presence in Defendant May's

front yard at 10:30 p.m. at night on July

30, 1974, such that Meeks' subsequent ob-

servation, through a window, of marijuana

inside the house fell within the "plain

view" exception to the strict Constitu-

tional requirement of securing a search

warrant based on probable cause prior to

entering upon a citizen's property to

conduct a search; see Opinion Appendix"A"

In essence, the Indiana Court has

held that a police officer has the right

to enter on private property when con-

ducting a potential criminal investiga-

tion which is not based on probable cause

to believe that a crime has been or is

being committed.

1]

The crucial issue in this case is

whether Officer Meeks had the "right" to

be on the property which Defendant May

was legally occupying at the time he

observed the marijuana in the house.

The question is, of course, dispositive

to the determination of the issues in

this case because if Officer Meeks was

not rightfully on May's property, then

his seizure of the marijuana does not

fall within the "plain view" exception.

The question of a police officer's

"right" to enter on private property, without

prior invitation, and to remain there

after being asked to leave, when he is

seeking information about possible or

suspected illegal activity (where he

lacks probable cause to believe that a

crime has or is being committed), the

very nature of which investigation might

subject the occupant to criminal lia-

bility, has apparently never been con-

12

sidered by an appellate court in Indiana

prior to the Court's decision in this

case.

It is clear from the record that

Officer Meeks did not have evidence

sufficient to establish probable cause

to believe that anyone had committed

or was committing a crime, either felony

or misdemeanor at 5710 East Dupont Road

on July 30, 1974. It is also clear from

the very nature of the investigation

itself (seeking to determine whether two

runaway underage females were staying at

5710 East Dupont Road) that possible

criminal liability could attach to the

occupant of the residence. Suspicion in

advance (including visual observation at

a female in the front yard) that entry

upon the premises might reveal the pre-

sence of the runaway female juveniles

would, of its very nature also entail a

suspicion that the occupant could be in

violation of IC35-14-1-1 Harboring,

1€35-30-5-1 Encouraging, or [C35-14-1-1]

Contributing to the Delinquency of a

Minor. The officer's late evening entry

upon the premises after first driving

around and past the rural house and then

backing up to the drive (a standard

surveillance technique) support an in-

ference that a criminal investigation

was involved. Also, Officer Working

testified that their mission was ‘'speci-

fically to look for two particular

females' (Tr. P 126). Consequently, at

the point of entry upon the property,

Officer Meeks was not justified in

having been in the particular place of

observation.

In a well researched and studied

opinion, the Court in Brown v. United

States 15 Md App. 584, 292 A 2d 762

(1972), examined Coolidge and found

that that case's fundamental proposition

14

is that searches conducted outside the

judicial process, without prior

approval by judge or magistrate are

per se unreasonable under the 4th

Amendment subject only to a few well

delineated exceptions such as emergency

and prior justification,

"In enunciating the rationale

for the plain view exception,

Coolidge sets out ‘the two distinct

eGhati tational protections served

by the warrant requirement’. "It

protects against any intrusion in

the way of search or seizure" which

is not justified by a ‘careful prior

determination of necessity.’ It then

indicates that even ‘those searches

deemed necessary should be as limited

as possible." It reasons that the

“plain view" exception is not in

conflict with the first objective

because the plain view does not

occur until after the valid in-

trusion has already been made. .

Thus, the formal “plain view" doctrine,

as announced in Coolidge is exclu-

sively a post-intrusiton phenomenon,

292A 2d at 774.

Whether the prior justification for

entry into the front yard curtilage of

the property is justified depends upon

the intent of the officers at the time

of entry. 15

The Indiana Supreme Court in Alcorn

v. State (1970), 255 Ind. 491, 265 N. E.

2d 413, quoting from Marshall v. United

States(5 Cir. 1970), 422 F. 2d 185, at

896 of 255 Ind., at 416 of 265 N. E. 2d,

stated:

"A search implies an examina-

tion of one's premises or person

with a view to the discovery of

contraband or evidence of guilt

to be used in prosecution of a

criminal action. The term im-

plies exploratory investigation

or quest. Haerr v. United States,

5 Cir. 957, 240 F. 2d 533, 535.

The Inciana Appellate Courts did not

consider the officers presence a search,

However, this holding ignores several

pertinent facts including a) Officer

Working's statement of the reason for the

original entry into the property; b)

the surveillance technique used; c) the

citing before entry of a female in the

front yard.

In the present case a state agent

entered the rural enclosed property of a

citizen during the dead of night to search

16

for the presence of two specific run-

away, underage females on the property.

This constituted a criminal investi-

gation the very nature of which the

officer knew could result in criminal

arrest of the occupant of the property.

Thus, the exploratory investigation or

quest requirement of Haerr, supra is

satisfied.

The opinion of the Indiana Appeals

Court held that Officer Meeks had a

right to be in May's front yard at

10:30 p.m. based expressly on the

holding in Davis v. United States,

(1964, 9th Cir), 327 F 2d 301. The quota-

tion of the Court of Appeals ignores the

important caveat to Davis opinion which

takes into consideration the time of day

in determining the reasonableness of the

intrusion. The reasoning in Davis seems

to be that since anyone (including a

police officer) can approach a house and

17

knock on the door in order to make in-

quiries of the occupant, absent express

orders against trespassing, then there

is no expectation of privacy on the

part of the resident to be protected

from this type activity.

The facts in Davis, briefly stated,

are that three plain clothes officers

went to Davis' house during daylight

hours to question him about druas,. They

had no probable cause to arrest him or

search his house. The officers knocked

on Davis’ front door and were admitted

inside the house by a young girl. Once

inside, they saw marijuana in “plain

view" and seized it. (327 F 2d 302-303).

In Davis, entry upon the front walk

per se would not have revealed evidence

of quilt. In May, the officer's entry

upon the qrounds itself was for the pur-

pose of conducting an “exploratory quest"

to determine whether the runaway juveniles

were present on any part of the grounds,

including the front yard.

18

In neither the Davis or May situation

does the officer have probable cause, and

both are intrusions by the State upon a

citizens privacy. The analogy to an

ordinary citizen's limited license to

trespass on private property for the

purpose of knocking on the front door to

make business inquiries is not very satis-

factory because the Fourth Amendment is an

express constraint on police activity, but

not that of a private citizen. Thus, in

some cases what a private citizen could

do, a police officer might be constrained

from doing or at the least the evidence

seized by such an intrusion will be

excluded.

The distinquishing difference be-

tween Davis and May seems to be that in

Davis, the police officers went to the

door in broad daylight during the time of

day when one normally expects unlimited

persons to arrive at one's front door

(commercial business hours). Apparently,

19

the Court in Davis felt that this was

such a slight intrusion on a resi-

dent's privacy that it was of little

consequence.

In the very next paragraph follow-

ing the paragraph quoted from Davis by

the Indiana Appeals Court in its opin-

ion, the Davis Court stated:

"The time of day, coupled with

the openness of the officers'

approach to defendant's doorway,

rules out the possible dangers to

their persons which might fovs re-

sulted from a similar unannounced

call in the dead of night.

(cTtatfons omitted).

327 F 2d at 304

Officer Meeks did not approach

Defendant May's home at noon in the

bright sunlight as did the officers in

Davis. Meeks arrived at 10:30 p.m.

after dark, and as the Davis Court

pointed out an unannounced night time

visit is totally different from one

made in the daytime. What might be

an excusable trespass during the day,

may well not be one at night.

20

In United States v. Davis, 423 F 2d 974,

Court made the following comments:

"The main consideration in applying

this rule is to determine whether the

observing officer had ‘a right to be

in the position to have that view'.

Many of the cases involving the ‘plain

view’ doctrine concern evidence re-

covered from authorities located in

public places. The rule lends itself

to application in those situations

because the observing officer is not

required to trespass on private property

In order to Nave a clear view oO

articles inside an automobile. However,

where police officers trespass in order

to secure the view, we have not hesitated

to find a search. A persons home holds

a favored position in the list of those

areas which are protected from unreason-

able searches and seizures. **** the

high degree of judicial sanctity which

the courts have accorded to dwellings

is based upon its concept of privacy and

the right to be left alone. The

security of homes should not be left

to the sole discretion of police

officers. The decisions have repeated-

77 Stressed and emphasized the concept

that the underlying purpose of the

Fourth Amendment is to protect and

shield citizens from unwarranted intru-

sions into their private domain. Here

423 F. 2¢ 974 at 977

Emphasis added

21

t

Theré are some cases which seem to

suggest that a trespass by the officer

will not invalidate a “plain view"

Seizure, but a closer examination of

these cases where the Court found no

reasonable expectation of privacy to be

involved due to the nature of the

property, the nature of the activity

or contraband being in open areas away

from residences.

See: Hester v. United States, (1924)

265 N. S. 57.

Thus, under the applicable case

law, the 4th Amendment guarantees de-

fendant May's privacy during the night

time hours at least.

The above conclusion conflicts sharp-

ly with the result reached by the Indiana

Appeals Court, which inpermissably ex-

pands the Davis, supra, holding. The

cases generally cited in support of

‘prior justification’ are those in which

someone expressly assented to the

original entry. In State v. Warness

26 Arz. App 359, 548 P. 2d 853, the

Court held for the State on the ‘lawful

presence,--plain vies enesetten argu-

ment but based its ruling on the fact

that the defendant had requested the

police presence to investigate a possible

burglary. Davis, supra, cited by the

Indiana Court of Appeals is based on a

fact situation in which the police

were invited onto the premises. In

State v. Ballinger, 504 P 2d 955, the

admission of evidence in plain view was

based on the fact that the police had

been requested to soive a family dispute.

The correct line of authority which

the trial court should have followed on

the suppression question is that of

Trupiano v. United States, 334 U. S. 709,

68 S. Ct. 1234, where the Court held that

all exceptions to the warrant requirement

23

grew only out of necessity and there- evidence. With respect to a fixed premises,

fore the exceptions would not apply when no amount of probable cause will justify

there had been an opportunity for an an intrusion. Johnson v. United States,

agent to obtain a warrant. Because no 333 U. S. 10, 68 S. Ct. 367, 92L Ed 436

emergency existed, Meeks should have ob- (1948); Jones v. United States, 257 U. S

tained a search warrant before searching 493, 78 S Ct. 1253, 26 L Ed 2d 1514 (1958)

f j : -

the grounds for the juveniles, the find Absent exigent circumstances, there is no

ing of whom would have subjected May to

9 . — 7 en y justification for a warrantless entry of

criminal prosecution. It is certainly property at night time United States

true that, once the marijuana came into v. Calhoun, 542 F 2d 1094 (1976)

B

plain view from the officers illegal

, 1 i

position, probable cause existed to Assuming for argument purpeses only

Suspect an ongoing crime, However, under that police justifiably occupied the

State v Speitz, 531, P 2d 521 (Alas, 1975)

position from where the contraband was

the seizure is unconstitutional because cited, and that the front yard was not

1a’ ; , . |

plain view alone will not justify an | within the expected zone of privacy, a

entry into a private residence since ,

y P search warrant for marijuana was still re-

. . . j lf

plain view is not in itself an exception quired under the facts of May's case.

to the warrant requirement. Probable Warness, supra, held that a different

Cc in ji f d if

ause in itself does not justify a situation exists when the police viewed

f

warrantless search and seizure 0 the evidence from outside the protected

24 area, as through a window. This is some-

times termed “open view" and a warrant

25

must be obtained for a lawful search

absent exigent circumstances. Open

view can provide probable cause for a

warrant but cannot alone justify a

warrantless intrusion of the protected

area. Brown v State 18 Md. App. 584,

292 A 2d 762 (1972). In Brown, supra,

open view observation from a hallway

outside the threshold of the renter's

room was not considered to be of any

legal consequence. In that case, the

relevent threshold had not been crossed

and without a warrant it could not be

crossed. Brown, supra, at 778.

In Steel v United States, 267 U. S.

498, 45 S. Ct. 414, 69 L Ed 757 (1925)

this Court held that open view of whiskey

from outside a building did not justify

immediate search and seizure. In Taylor

v. United States, 286 U. S. 1, 52S. Ct.

466, 76 L Ed 951 (1932) agents looked into

a garage and saw contraband in open virw.

26

The subsequent warrantless seizure was

Suppressed. In the present case,

the arresting officer testified that

no emergency existed at the time he

entered May's yard. Coupled with the

fact that the officer observed a large

amount of marijuana (34 bs) and would

have to know that such a quantity could

not be easily hidden or destroyed, no

exigent circumstance existed which would

excuse the avoidance of the warrant

requirement.

CONCLUSION

At best May literally stands for the

proposition that the police may enter a

person's private property at any time he

desires in order to question the occupants

of the property about any criminal activity,

no matter trow nebulous. At worst, it

provides the police with a convenient

method of eradicating the 4th Amendment

privacy guarantees. It was the very

27

specter that the Court in Brown supra, at

776 warned of when it stated that a con-

tinued investigatory reconnaissance could

not be allowed as a means of evading the

warrant requirement for search and

seizure.

It may well be that this is a fine

line which Defendant May seeks this Court

to draw, but the implications of this

Court's holding in May's cause effect not

only him, but also every other citizen's

rights to be left alone and not be

bothered by police intrusicns upon their

property. Defendant May believes that

under the limited facts of his particular

case, that this Court cannot allow the

conviction to stand without placing in

serious jeopardy the Fourth Amendment right

of all citizens to their precious and

constitutionally protected privacy.

For the foregoing reasons, Petitioner

Gary May, prays that a Writ of Certiorari

28

issue to review the Judgment and opinion

of the Indiana Court of Appeals entered

in these proceedings

Respectfully submitted

ML

K. RICHARD PAYNE ©

3925 North College Avenue

Indianapolis, Indiana 46205

ATTORNEY FOR PETITIONER

ON PETITION

DAVID FREUND

3925 North College Avenue

Indianapolis, Indiana 46205

29

ROBERTSON, C. J. and GARRARD, J.

by designation concur.

Gary Allen MAY, Defendant-Appellant.

Vv.

STATE Of Indiana, Plaintiff-Appellee.

No. 3-1175A246.

Court of Appeals of Indiana

Third District

July 5, 1977.

Rehearing Denied Aug. 12, 1977.

Defendant was convicted in the

Superior Court, Allen County, Louis I.

Bloom, J., of possession of marijuana and

he appealed The Court of Appeals,

Hoffman, J., held that where a police

officer walked up to the front door of

the defendant's residence with some

questions concerning two missing indi-

viduals and noticed marijuana in plain

view through a window next to the door,

the marijuana could be seized and was

admissible in evidence under the “plain

view" doctrine.

Affirmed,

1. Searches and Seizures 3.3(4)

Critical element involved in allow-

ing warrantless seizure of contraband

from private place because it was ob-

served in plain view is that seizing

police officers must be justified in

having been in particular place of ob-

servation. U.S.C.A. Const. Amend. 4.

2. Criminal Law 394,4(3)

Drugs and Narcotics 185

APPENDIX A 1

A 2

Where police officer walked up to

front door of defendant's residence with

some questions concerning two missing

individuals and observed marijuana

through front window next to door,

marijuana could be seized and was ad-

missable under “plain view" doctrine.

U.S.C.A. Const. Amend. 4.

John F. Surbeck, Jr. Grimm & Grimm,

Fort Wayne, for defendant-appellant.

Theodore I. Sendak, Atty. Gen., James

N. Shumaker, Deputy Atty. Gen., Indiana-

polis, for plaintiff-appellee.

MAY v. STATE

Cite as 364 N. E. 2d 172 Ind. 173

HOFFMAN, Judge.

Defendant-appellant Gary Allen May

was convicted of possession of mari-

juana in violation of IC 1971, 35 24,1

2 4(d)(10) (Burns Code Ed.) After a

trial by jury May was sentenced to

the Indiana Department of Correction

for a period of five years and fined in

the penal sum of $1. After the over-

ruling of his motion to correct errors

May perfected this appeal alleging that

the trial court erred in its denial of

his motion to suppress evidence seize.

during an allegedly warrantless search

of his home.

The record reveals that on July 30,

1974, the date of May's arrest, Charles

B. Meeks, a Senior Detective Sergeant

of Allen County was investigating in-

formation he had received concerning

a place frequented by juveniles with

regard to two missing young women,

Officer Meeks testified that he went to

the residence at 5710 East Dupont Road,

in Fort Wayne, Indiana, in hopes that

A 3

he could link the information received

about a gathering place for youths with

his search for the whereabouts of the

two young women.

At approximately 10:30 p.m. Officer

Meeks, with another officer, drove by

the residence observing a man and woman

building a fire in the yeard. The

officers turned around and drove past

the house a second time, then came back

and drove into the end of the driveway.

Several other cars were parked on the

lawn in front of the house. Officer

Meeks got out of the car and started to

walk on the pavement to the front door.

Appellant May came from inside the house

and intercepted Officer Meeks who had

begun to identify himself, As May gave

him a shove saying, “Get the hell out".

Officer Meeks observed in the house

through the lighted window approximate-

ly eight feet away, a set of scales

and marijuana in bricks and loose on a

picnic table. Together the two police

officers then went into the residence

and proceeded to arrest all of those

present. At trial appellant made a

motion to suppress the evidence seized

from the premises during the arrest.

The sole issue raised on appeal con-

cerns whether the trial court erred in

denying appellant's motion to suppress

the contraband evidence.

Appellant contends that the officers’

entrance into his home to seize the

marijuana constituted an unreasonable

search and seizure in violation of his

AG

Fourth Amendment rights. Officer Meeks

it is agreed, was on constitutionally

protected property when he made his ob-

servation through the window. In res-

ponse the State argues that Officer Meeks

did not carry out a search at all;

rather he is said to have observed the

contraband in plain view of a place he

rightfully occupied.

Drawn into question therefore is

whether the contraband observed by Officer

was in plain view and as a corolliary

whether he was justified in being on the

premises and so situated as to make the

observation.

Indiana has allowed the warrantless

seizure of evidence which was within the

plain view of an arresting officer.

Lindsay v. State (1965), 246 Ind. 431,

ge ; Brown v State (1959),

239 Ind. 358, 157 N.E. od 174;

Johnson v, State (1975), Ind. App. 325

N. E. 2d 859, The standard followed

has generally been one of reasonable

police behavior under the particular

circumstances of each case. Our

Supreme Court in Lindsey v. State, supra,

had occasion to consider whether police

observations made through the screen

door of the defendant's trailer-resi-

dence is a mobile home sales lot were

justifiable. The court upheld the

seizure of the stolen property as

being reasonable upon grounds that

there was no prying and the contraband

taken was not hidden but rather was in

plain view. Lindsey v. State, supra.

Our Supreme Court in Alcorn v.

State (1970) 255 Ind. 49T, 265 WN. E.

2d 413, quoting from Marshall v. United

“4oe F.2d 185,

States (5 Cir. 1970), "

at 456 of 255 Ind. at 416 of 265

N. E. 2d stated:

A 5

"A search implies an examination

of one's premises or person with a

view to the discovery of contra-

band or evidence of quilt to be used

in prosecution of a criminal action.

The term implies exploratory investi-

gation or quest. Haerr v. United

States 5 Cir 1957, 240 F 2d 533, 535"

(1) One of the critical elements

involed in allowine the warrantless

seizure of contraband from a private

place, because it was observed in

plain view, is that the seizing

police officers must be justified

in their having been in the par-

ticular place of observation.

In Coolidge v. New Hampshire

(1971), * . . t.

2022, 29 L.Ed.2d 564, the United

States Supreme Court discussed the

circumstances under which police

officers may seize evidence in

plain view without a warrant. The

court noted that plain view alone

is not enough to justify the warrant-

less seizure of evidence. The

police officer must have “had

a prior justification for an in-

trusion in the course of which he

came inadvertently across a piece

of evidence incriminating the

accused." (At 466 of 403 U.S.,

at 2038 of 91 S.Ct.)

(2) Officer Meeks' testimony

and the pictures of the house placed

in evidence support the proposi-

tion that the evidence was in

plain view. However, May's fur-

ther argument goes to whether there

was justification for the police

intrusion, that is, was Officer

Meeks properly on the front walk.

Among several contingencies justi-

fying the initial intrusion under

Coolidge, at 466 of 406 U.S. at 2038

of 97 e Ct., is included, "Some

other legitimate reason for being

present unconnected with a search

directed against the accused."

The evidence shows that Officer Meeks

was pursuing an investigation concerning

the whereabouts of two young women re-

ported missing from their parents. He was

not pursuing a narcotics investigation,

nor was he involved in a search directed

against the accused. Instead, upon the

advice of a confidential informant, Officer

Meeks was attempting to verify a tip that

the missing juveniles were staying there.

Moreover, Officer Meeks’ presence was in

no way different from that of any other

person who might solicit the occupant of

a residence for information by knocking on

his front door. It was only after having

observed contraband through the window

that the nature of Officer Meeks' mission

changed.

The Court of Appeals for the Ninth Cir-

cuit in Davis v. United States (1964) 327

F.2d 301, considered any police activity

which provided an officer with a sufficient

legitimacy of purpose including investiga-

tion as a reason adequate for walking up

to the door of a private home, The court at

303 of 327 F.2d, stated:

“Absent express orders from the person

in possession against any possible tres-

pass, there is no rule of private or

public conduct which makes it illegal

per se, or a condemned invasion of the

person's right of privacy, for anyone

openly and peacably, at high noon, to

walk up the steps and knock on the front

door of any man's ‘castle’ with the

honest intent of asking questions of the

occupant thereof--whether the questioner

be a pollster, a salesman, or an

officer of the law."

A?7

In the case at bar Officer Meeks merely

walked up to the front door of the May resi-

dence with some questions concerning the

two sisters sought by their parents. Several

other cars were parked on the lawn and a

couple was building a fire in the midst

of lawn chairs positioned in a circle around

them. The primary light in the area came

from the front window next to the door

wherein Officer Meeks saw the picnic table

with contraband strewn over its surface.

In this context it is clear that the evi-

dence which was in plain view was observed

by an officer rightfully in a position to

have such a view and as such should not be

regarded as having been discovered Ci978f,

a search. Johnson Y, arate supra (1975

— App., 305 N.E. See also Alcorn

State, supra iesl. ta 258 Ind. 491, 265

qT E. 2d ATT. United States v. Hannan (7

Cir. 1971), 442 F.2d 645. nce the contra-

band fell into Officer Meeks’ “plain view",

it was subject to seizure and properly ad-

missible in evidence. Brown v. State, supra

(1959), 239 Ind. 3588, 157 N.E. *q 174; Harris

v. United States (1968), 390 U.S. 234, 236,58

S. tt. 992, TS CL. Ed. 2d 1067.

Accordingly the judgment of the trial

court must be affirmed.

Judgment affirmed.

GARRARD, J. concurs.

ROBERTSON, C.J., participating by de-

sigqnation concurs.

Tyrone Curtis HENDERSON,

Appellant-Defendant,

v.

STATE OF INDIANA, Appellee-Plaintiff

No. 3-1275A279.

A 8

Court of Appeals of Indiana

Third District

July 6, 1977

Rehearing Denied August 3, 1977

Defendant was convicted in Circuit Court

St. Joseph County. George N. Beamer, Jr.,

J., of committing a felony while armed

and he appealed. The Court of Appeals,

Staton, P.J., held that (1) statute pro-

viding upon permitting amendment of in-

dictment or information the court shall

order any adjournment or postponement which

may be necessary to accord defendant ade-

quate opportunity to prepare his defense

does not mandate a continuance; (2) amend-

ment of information to add language that ano-

ther person was present, aiding and assisting

the commission of the felony, did not pre-

judice defendant's substantial rights; (3)

prosecutor's error in making statements in

closing argument expressing disbelief of

alibi witness and bolstering, by an opinion

statement, the credibility of State's wit-

ness was harmless; (4) denial of motion in

limine to exclude evidence of defendant's

escape from county jail and charge on flight

were harmless.

Affirmed.

Garrard, J., concurred in result.

Hoffman, J., concurred in result with

opinion.

1. Criminal Law 590(1)

Statute providing that upon permitting

amendment of indictment or information the

court shall, upon motion by defendant,

order any adjournment or postponement of

the proceedings which may, by reason of

such amendment, be necessary to accord

A9

defendant adequate opportunity to prepare

his defense does not mandate a continuance

(Per Staton, P.J., with two judges concur-

ring in result). IC 35+1-29-1, 35-3.1-1

5(a}(9) (1976 Ed.)

2. Indictment and Information 161(4)

Amendment of information to add language

that another person was present, aiding

and assisting the commission of a felony

was immaterial to the extent that amendment

permitted State to show that person other

than defendant held the dangerous weapon

and amendment did not prejudice the sub-

stantial rights of defendant. (Per Staton,

P.J., with two Judges concurring in result).

(C 35-1-29-1, 35-3.1-1-5(a)(9)(1976 Ed.)

3. Criminal Law 720 1/2

Prosecutorial opinions of the defendant's

guilt or innocence are improper and preju-

dicial unless such opinions include the pro-

viso that they are based solely upon the

evidence, (Per Staton, P.J., with two Judges

concurring in result.)

4. Criminal Law 1171.1(1)

The existence of prosecutorial miscon-

duct does not necessarily constitute

reversible error. (Per Staton, P.J., with

two Judges concurring in result).

5. Criminal Law 1171.3

Prosecutor's remarks in closing argument

expressing disbelief of alibi witness and

bolstering, by an opinion statement, the

credibility of State's witnesses, though

error, were harmless (Per Staton, P.J.,

with two Judges concurring in result.)

A 10

INDIANAPOLIS, 46204

Clerk of the Supreme Court

and Court of Appeals Telephone

633-5200

Billie R. McCullough, Clerk

217 State House

No. 3-1175A246

Gary Allen May v. State of Indiana

You are hereby notified that the Supreme

Court has on this day, Appellant's Petition

to Transfer DENIED without Opinion.

Givan, C.J. All Justices Concur.

Please acknowledge receipt of this notice

in order that our records may show that

you have been nctified of this action.

WITNESS my name and the seal of said Court,

this 5th day of December, 1977.

a

Thos. L. Sendak, Atty. Gen.

12/5/77 K. Richard Payne, Indpls.

No. 3-1175A246 John F. Surbeck, Jr.

I hereby acknow- Fort Wayne

ledge receipt of

the above notice

19

Attorney for

All ‘

Clerk of the Supreme Court

and Court of Appeals Telephone

633-3200

Billie R. McCullough, Clerk

217 State House

No. 3-1175A246

Gary Allen May v. State of Indiana

You are hereby notified that the Court of

Appeals has on this day, Appellants

Petition for Rehearing DENIED, Robertson, C.J.

Please acknowledge receipt of this

notice in order that our records

may show that you have been

notified of this action.

WITNESS my name and the seal of

said Court, this 12th day of

August, 1977. | oe

3/12/77 Theo. L. Sendak

Attorney General

No. 3-1175A246 John F. Surbeck, Jr.

Ft. Wayne

I hereby acknowledge K. Richard Payne,

receipt of the Indianapolis

above notice

197

Attorney For

A 12