2018 Appellate Case Notes
Handgun Forfeiture¹
The case is Trice v. State, decided November 13, 2017 in the COA. Motorist Marques Trice was pulled over for a burned out license plate light. When the Indianapolis Police Officer asked about weapons in the vehicle, Marquis answered that there was a handgun in the center console. Marques produced an Indiana Carry permit which had expired two years earlier. Marques was charged with misdemeanor carrying a handgun without a license and was convicted following a bench trial. As part of its sentencing order the trial court ordered the destruction of the handgun. Marques appealed only the destruction order.
The parties on appeal focused their attention on IC 35-47-3-2, setting forth procedures for the return of firearms to rightful owners and for the “disposal” of confiscated firearms. While that statute appears to favor the return of firearms to the rightful owner after conclusion of a criminal prosecution, it excepts the category of rightful owners who have been “convicted for the misuse of firearms.” In such cases there is judicial discretion to order the firearm returned to its owner or disposed of by means including public sale and destruction.
The COA found that the term “misuse of a firearm” was not defined for the purposes of IC 35-47-3-2. The COA rightly reasoned that Marques’ offense was having or possessing the handgun rather than using or misusing it. Accordingly, there was no conviction below for “misuse of a firearm.” The destruction order was reversed by way of (2/1) split decision. The COA stopped short of the logical step of instructing the trial court to enter an order for the return of the weapon. There is a high probability of a Transfer grant here.
The COA probably should have had looked at IC 35-47-14 respecting the seizure of firearms from persons deemed “dangerous” without regard to their arrest. The State is expected (following a warrantless seizure) to file a “written statement under oath” (per § 3) supporting the conclusion that the firearm possessor is “dangerous.” Deadlines follow that written statement but do not precede it. In other words, there is no express deadline for police to justify their warrantless seizure of a firearm.
The official position of the CLB is that police failure to file the § 3 written statement within a reasonable time (no more than 30 days) should constitute waiver of any claim to the continuing detention of the firearm.
Also worthy of note with respect to forfeiture or return is IC 35-33-5-5 respecting the disposition of property seized pursuant to an arrest or search after the related prosecution ends. . . Case note by Dave Allen
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¹The CLB acknowledges the issue of whether the proceeds from criminal forfeitures should be paid to the Common School Fund as Provided in Article 8 §2 of the Indiana Constitution. Whether statues providing for alternate uses of forfeiture proceeds are thereby unconstitutional is outside the scope of this case note.
A Cautionary Tale for the Rich Old Fart
Sometimes I find myself thinking that the older affluent man who enters into marriage without a prenuptial agreement deserves the misery that he has invited. The case is Rose v. Bozeman, decided November 7, 2018, in the COA.
While the COA opinion is stingy with personal details, we know of William D. Bozeman Sr. that he was affluent and of sufficient age to have a namesake from a prior relationship. William and Jennifer Rose wed July 7. 2017. They closed on the $499,000.00 marital residence on July 19, 2018. They separated on July 31, 2017, and William filed for Dissolution of Marriage the following day, August 1, 2017. While Rose had contributed nothing toward the purchase of the home, it was titled to William and to her as husband and wife. William had brought more than three million dollars of assets into the marriage, including the purchase money for the expensive martial home.
The trial court judge noted that Jennifer was on the title to the house and accordingly, awarded her a 50% share of the anticipated proceeds of its sale. Here is the trial court’s conclusion of law:
“Even though the marriage was short once [Rose’s] name is put on the real estate, it is half hers.”
With this conclusion, the trial court revealed a fundamental deficit in its understanding of the law of property division. Remarkably, and inexplicably, the trial court judge was admitted to the practice of law in 1983 and should certainly have known better than he wrote.
Someone whispered a bit of truth into the ear of the trial court judge who then granted William’s Motion to Correct Error by reducing Jennifer’s windfall share of real estate proceeds from 50% to a flat $35,000.00.
Jennifer Rose appealed. The COA affirmed the trial court’s corrected division of property, reasoning in part:
“The twenty-four day term of married lie is simply too short to even evaluate the other [statutory] factors. . .”
Those “factors” are found at IC 31-15-7-5. The initial decision herein (before the TR59 correction) is proof positive of the unreliability of trial court judges in applying the law and managing their own discretion in matters of marital property division. William’s unsuccessful marriage would have been less costly had he armed himself with a simple prenuptial agreement. William may have learned his lesson but there is no shortage of other “Williams” out there who, from stupidity or lust, will to continue to commit the same error. . . Case Note by Dave Allen
Too Remote for Paraphernalia
The case is Granger v. State decided October 31, 2018 in the COA, reversing the paraphernalia possession conviction of Devon Granger. Following a traffic stop Officer Jacob Elder of the Avon Police Department spied a grinder in the “door handle area” of the driver’s side door of the vehicle driven by Mr. Granger.¹ The officer saw suspected marijuana residue within the grinder and arrested Granger for possession of paraphernalia. Granger appealed his bench trial conviction.
The State’s charge against Granger was that he knowingly or intentionally possessed a thing for “introducing into the person’s body a controlled substance” contrary to IC 35-48-4-8.3(b)(1). The grinder in question was not usable as a device for “introducing” a controlled substance into a human body. Rather, the grinder’s supposed purpose was to render marijuana easier to consume by some other means (a pipe, for example) of introduction.
Hence the COA held (soundly) that the grinder was too remote from the actual bodily “introduction” or consumption to constitute paraphernalia as charged. The COA rightly declined to ponder the legislature’s intent by means other than following the “plain and ordinary meaning” of the statutory text.
The COA also rebuffed the state’s attempt to uphold the conviction on the theory that the evidence at trial was sufficient to prove possession of paraphernalia intended to “enhance the effect of a controlled substance,” a related offense that was not charged. Case note by David Allen.
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¹It seems far-fetched that Officer Elder could see the driver’s “door handle area” from outside the vehicle.
Bad Day for BFP’s
The bad day was September 21, 2018. The case (decided in the COA) is GO Properties, LLC v. BER Enterprises, LLC. A BFP for value is a bona fide purchaser of real estate for valuable consideration without notice (actual or constructive)of any adverse lien or title claims. The term “BFP” most often arises when the adverse claimant shows up demanding his money or his land after the BFP has made his purchase in good faith.
The GO case involved four parcels of real estate acquired by GO Properties, LLC. The GO LLC had two “members,” both of which were LLC’s. The sole “member manager” was Olicorp Property, LLC, whose sole member was Larry Oliver. The second (non-managing) member was Gracie Properties, LLC, whose sole member was Stacy Phillips. Stacy is the villain of the story as related in the COA Opinion.
Given the management structure of the GO LLC, Larry Oliver (as sole member of the Olicorp, LLC) had the exclusive authority to sell real estate. Stacy seems to have had other plans. She filed with the Secretary of State an unauthorized change of resident agent and principal office of the GO LLC, as if to support a claim of her authority over the GO LLC. She found a gullible title company that took her word for her claimed authority to sell the four parcels, which were then sold. There were additional sales to the end that the four parcels wound up in the hands of “bona fide purchasers for value.”
The COA Opinion lacks mention of any surrender, forfeiture, or transfer of Stacy’s stake in the GO LLC. Nonetheless, it was GO Properties, LLC that filed suit to quiet title against the BFP’s and others. The trial court was given the task of deciding who should sustain the loss for Stacy’s misconduct. The choices were Go Properties, LLC (by its innocent member?) or the BFP’s and every predecessor who had warranted title. It is a fair presumption that the BFP’s and their warranting predecessors were substantially protected by title insurance.
The trial court bought the argument that Stacy had “apparent” (though not “actual”) authority to sell the parcels, such that her deeds were voidable but not void ab initio. The trial court then awarded summary judgment to the BFP’s.
The COA reminded us of boilerplate law that there is no apparent authority of a supposed agent without “some manifestation” from the principal. Here the principal GO Properties, LLC had done nothing to clothe Stacy with apparent authority. Accordingly, the COA reversed and held that Stacy’s deeds were void along with all derivative conveyances, despite the innocence of the remote buyers.
While the COA decided rightly as to apparent authority and void deeds, there is the disturbing absence of any explanation (if any there be) as to how Stacy will not profit from her misconduct. Title companies may also be uncomfortable with the result that increases their exposure in cases of unauthorized conveyances. Transfer is likely….Case Note by Dave Allen.
Virtually Present?
The case is C.S., Jr. v. State decided September 19, 2018, a mere six days following the SCOTSI’s decision (as described below) in R.R. v. State. The C.S., Jr. Opinion (by Sr. Judge Friedlander) does not cite R.R. or otherwise exhibit awareness of R.R. Both cases deal with juvenile delinquents who were not physically present in court at a critical stage of their delinquency proceeding. R.R. was absent (on the lam) for his “fact-finding,” the equivalent of a trial in the case of an adult. The SCOTSI reversed R.R.’s finding of delinquency due to that absence with three justices “presuming” a juvenile’s due process right to be present and two justices voting to hold for such a right.
By comparison, C.S., Jr. avoided fact-finding by admitting the delinquency allegations but was “present” only by video conference at the “disposition” hearing (in the nature of an adult sentencing) which resulted in his commitment to the DOC. C.S., Jr. complained on appeal that the juvenile court committed error by conducting the disposition hearing while he was “present” only by video conference.¹
While acknowledging the right of an adult criminal defendant to be “personally present” at a sentencing, the COA held that a juvenile has no such right to physically attend the parallel proceeding of a disposition hearing. Remarkably, Senior Judge Friedlander authored the Opinion in Matter of K.G., 781 N.E. 2d, 700 (2002)² holding that juveniles facing delinquency charges have a fundamental due process right to a competency determination (as in the case of an adult criminal defendant). In reaching that conclusion Judge Friedlander (appropriately) cited the seminal cases of In Re Gault, 387 U.S. 1 (1967) and In Re Winship, 397 U.S. 358 (1970) which helped to define the due process requirements of delinquency proceedings as compared to the criminal trial of an adult. Such citation to seminal authority is (sadly) absent from C.S., Jr.
Whether or not a different result is merited the C.S., Jr. panel should grant Rehearing (on its own motion if necessary) to consider new argument in light of R.R. v. State. Whether or not there is a corrective Rehearing, the case begs for consideration on Transfer….Case Note by Dave Allen
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¹Appearance of the client by video also poses challenges for the attorney who needs to have the ability to hear the client’s whisper while he also needs to enhance his argument by looking straight into the face of the judge.
²The holding was vacated on Transfer and then approved as to result (except for a statutory matter) by the Indiana Supreme Court at 808 N.E. 2d 631 (Ind. 2004).
“Delinquent in Absentia” on Transfer
The first 2018 Appellate Case Note herein was on the COA’s split decision of January 11, 2018 in R.R. v. State, a juvenile’s unsuccessful appeal of a delinquency finding from a hearing conducted in absentia while he was on the lam. At the end of the Note, I wrote that a clarifying Opinion from the SCOTSI would be helpful. The SCOTSI Opinion on Transfer came on September 13, 2018. The most remarkable aspect of the SCOTSI decision of September 13, 2018 (reversing the trial court for conducting fact-finding without a valid waiver of the “presumed” right to be present) is the splintered result in a panel known for (boring) consensus.
Here is a table of sorts summarizing the issues and the SCOTSI votes. Justice Slaughter authored The Majority Opinion.
The Holdings:
I. (A) The SCOTSI presumes (without deciding) that a juvenile has a due process right to be present at his fact-finding hearing.
I. (B) A juvenile may waive his right to be present, but only in accord with the juvenile waiver statute.
II. The Absurdity Doctrine is not applicable to the waiver statute.
As for holding I. (A) the vote split is not so sharp as it may appear. Rush and David in dissent voted for a holding that there is an actual (not merely “presumed”) due process right of a juvenile to be present for his fact-finding hearing. Accordingly, all five Justices voted for a presumed or actual right of a juvenile to be present for fact-finding.
Holding I. (B) is that a juvenile’s waiver of his right to be present at fact-finding is waivable, but only in accord with the juvenile waiver statute, IC 31-32-5-1. By its terms, the statute provides the “only” means for waiving the Constitutional rights of a juvenile facing a delinquency charge. No method of waiver described in the statute could apply in the absence of the juvenile.
Holding II. is that the “Absurdity Doctrine” will not be applied to negate or circumvent the clear language of the statute. The “absurdity” asserted is that the statute would allow an at-large juvenile to indefinitely avoid a delinquency finding simply by defying the order to appear for his fact-finding hearing. Justice David in dissent (joined by Massa) did not squarely address the “Absurdity Doctrine” while implicitly taking the position that waiver of a Constitutional right is governed by Constitutional principles. Even so, Justice David (facing reality) urged a legislative fix to the rigidity of the juvenile waiver statute. To make the point, Justice Slaughter write for the Majority how he agreed that the trial court’s declaration of waiver-by-absence did not offend due process. To Justice Slaughter the point was that the trial court’s declaration of waiver-by-absence was out of compliance with the juvenile waiver statute….Case Note by Dave Allen
Respondeat Superior and the Randy Cop
The consolidated case is Jennifer Cox v. Evansville and Babi Beyer v. Fort Wayne decided (4-0-1) September 13, 2018 in the SCOTSI. In each case an on-duty municipal police officer sexually assaulted a woman. In each case the police officer had been dispatched to investigate the woman who became his victim, such that there was no accidental encounter. In each case the woman had been drinking to excess. In the Fort Wayne case the issue on appeal was whether the victim’s respondeat superior claim against the City would withstand the City’s summary judgment motion. In the Evansville case the issue on appeal was whether the trial court should apply the stricter version of employer liability known as the “common carrier exception” (actually an enhancement) to the rule of respondeat superior.
The Fort Wayne holding was that the claim for vicarious liability for sexual assault committed by an on-duty cop will survive summary judgment. Fort Wayne had argued that sexual assault was not within the officer’s scope of employment so as to impose vicarious liability. The SCOTSI’s answer was that “scope of employment” may include acts that are expressly forbidden by the employer. Moreover, there seems to be a sliding scale version of greater liability upon the employer who bestows great power upon the employee. How this differs from the “common carrier exception” of enhanced employer liability is difficult to articulate but the latter arises out of a special (contractual) relationship between the employer (perhaps a railroad company) and its patron (perhaps a train passenger). The SCOTSI declined to apply the common carrier exception to the phenomenon of on-duty police officers committing sexual assault.
Only time will tell whether the SCOTSI will apply similar reasoning¹ to an off-duty cop (perhaps armed and in uniform) or to an on-duty code enforcement officer (or the like) demanding entry into the home of a potential victim….Case Note by Dave Allen
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¹Footnote nerds (like me) must recognize and appreciate C.J. Rush’s eclectic mix of footnote citations to the Book of Luke (NKJV), (legendary cartoonist) Stan Lee, and renowned philosophers Thomas Hobbes, John Locke, and Jean-Jacques Rousseau in a single Opinion.
THE RES IPSA OF BED BUGS?
See Johnson v. Blue Chip Casino decided August 29, 2018 in the COA. “Res Ipsa Loquitur” is a familiar “legal Latin” phrase which translates as “The thing speaks for itself.” In practical terms the Res Ipsa doctrine stands as an inferential proof of negligence under circumstances where the defendant had exclusive control of the relevant instrumentality and where the harm-causing event would not have occurred without negligence.
Maurice Johnson rented a room at Michigan City’s Blue Chip facility. He awoke to find evidence of bed bugs, including one live bed bug and bites on his arm. He filed (with benefit of counsel) a small claims action against Blue Chip, making the Res Ipsa argument that the very presence of bed bugs in his rented room was inferential proof of negligence on the part of Blue Chip. The trial court and the COA disagreed. Johnson lost at trial and on appeal.
Maurice Johnson’s local attorneys (who should have known better) seem to have eschewed the obvious contract theory against the innkeeper who puts a guest in an infested room which is thereby unfit for habitation. This was a time to “waive the tort and sue in assumpsit!”…Case Note by Dave Allen
SELF-INCRIMINATION AND THE SMARTPHONE
From a Fourth Amendment perspective it seems clear that the warrant requirement applies to the search of a cell phone, at least a search beyond the physical characteristics of the phone. Riley v. California, 134 S.Ct. 2473 (2014). On June 22, 2018 our SCOTUS “decided” (5/4) that the warrant requirement should apply as well to the acquisition of a cell phone’s “historical location data” in the possession of a third party service provider. See Carpenter v. United States, ____ U.S. ____ (2018). The subject of this Appellate Case Note is Seo v. State, decided (2/1) in the COA on August 21, 2018. Katelin Funjoo Seo complained to police that she had been raped by a man, “Dan.” The investigation led police to suspect that Katelin had been stalking and harassing “Dan” and was motivated by the desire to marry “Dan” or to have a child by him. When arrested (on a warrant), Katelin had a cell phone in her possession. The police had possession of the phone but could not unlock it. The prosecutor persuaded the trial court to issue an order that Katelin unlock her cell phone and then to find Katelin in contempt when she refused on Fifth Amendment grounds to incriminate herself by opening the locked phone. The controversy decided by the COA was Katelin’s appeal of the contempt finding. The Opinion of the Court and the Dissent occupy a remarkable 68 slip opinion pages.
The COA majority reversed Katelin’s contempt finding on Fifth Amendment grounds. Here is a short list of various forms of self-incrimination that can be forced from us: fingerprint samples; hair, blood, and DNA samples; and voice and handwriting samples. The Opinion of the Court (joined by no judge other than its author) likened a cell phone to a digital diary. While even a diary is within the reach of a subpoena, here the issue was whether Katelin could be coerced into helping the police to gain access to password-protected personal information.
Beyond the unrestrained length of the Opinion and of the Dissent, the case is remarkable for the lack of mention of Taylor v. State, decided May 4, 2018 in the COA. The Taylor Opinion discussed the passcode circumvention technique of physically opening the phone, removing the memory chip from the circuit board, and then placing the chip into a “standalone memory data reader.” I presume that this method would produce data stored on the chip but not “cloud” stored data.
There will be a Transfer grant in this case…Case Note by Dave Allen
DEAD DOG DAMAGES
The case is Liddle v. Clark, decided July 23, 2018 in the COA. Melodie Liddle was walking her two leashed dogs in the Versailles State Park. Beagle mix “Copper” stuck her head in an open-ended wooden box. Copper cried out. Melodie tried and failed to pry open the trap apparatus that had closed on Copper’s neck. Copper died there from suffocation in Melodie’s presence.
The trap was intended for racoons. It had been put in place by a park employee with management approval. A conscious decision had been made against posting warning signs or otherwise advising park patrons that such traps could be encountered. Melodie sued the DNR (through its Commissioner, Cameron F. Clark) and others for damages and to challenge the validity of now-expired DNR administrative rules allowing trapping in State Parks. On Melodie’s appeal, the COA affirmed the trial court holding that damages for Copper’s death as a loss of personal property were limited to the fair market value (as awarded below) and that the issue of validity of rules became moot when the rules expired.
It is worthy of note that Melodie was represented by lawyers from the “Center for Wildlife Ethics” in LaPorte. It seems that Melodie’s natural priority was winning full compensation, including sentimental value, for the death of Copper. By contrast, it seemed that the lawyers had a separate interest in challenging DNR rules allowing trapping and even “commercial” trapping in State Parks. Had they been more concerned with the client and less concerned with public interest issues, Melodie’s lawyers might have cobbled together a claim for the reckless infliction of emotional distress as an alternative to the doomed claim for the loss of sentimental value…Case Note by Dave Allen
THE FOURTH AMENDMENT AND
OUR FRACTURED SCOTUS
The case is Carpenter v. United States “decided” June 22, 2018 in the SCOTUS. The topic may be described as application of the Fourth Amendment to law enforcement acquisition of an individual’s “historical cell phone location data” in possession of a “third party” service provider. The cell phone location records of Timothy Ivory Carpenter were obtained by Court Order (under the Stored Communications Act) issued upon something less than the showing of probable cause required for a search warrant. The location records were admitted (over objection) in Mr. Carpenter’s trial. He was convicted of multiple offenses and appealed. In its reversal/remand the majority of 5 (Ginsburg, Breyer, Sotomayor and Kagan joining the Opinion of CJ Roberts) held that cell phone users have a reasonable expectation of privacy in their location records that are in the possession of a third party. This means that there must be a warrant or a warrant exception (like exigent circumstances) for law enforcement to obtain such records. The majority explicitly “declined to extend” to cell phone location records old precedent declaring the absence of a reasonable expectation of privacy in (land line) telephone calling records and bank records held (necessarily) by a third party. See Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976). Those decisions may be on the cusp of being formally overturned.
There were three dissenting Opinions: Kennedy joined by Thomas and Alito; Alito joined by Thomas; and Gorsuch all by himself. The dissenters displayed some hostility toward the boilerplate precedent of Katz v. United States, 389 U.S. 347 (1967) and its notion of a “reasonable expectation of privacy” distinguishing what is a Fourth Amendment “search” from what is not. The dissenters remind us that the text of the Fourth Amendment purports to guard against the unreasonable search and seizure of (only) our “persons, houses, papers and effects”. What of our records that are digital blips rather than paper records? The Originalist orthodoxy is that the founding fathers could not have meant to protect that which could not be found or even imagined in the 1780’s. The CLB favors a “principled pragmatic extrapolation” (a new term) for applying the Fourth Amendment (and others) to evolving technology and consequent privacy implications.
Though SCOTUS Slip Opinion pages are short, there are 119 of them in Carpenter, including the Syllabus. Remarkably Justice Gorsuch wrote 21 pages (in unaccompanied dissent) mostly complaining about the increasing complexity of Fourth Amendment jurisprudence. The CLB prediction is that Justice Gorsuch will prove to be an ardent foe of the Exclusionary Rule seeking to simplify the Fourth Amendment into uselessness…Case Note by Dave Allen
SETTLEMENT REMORSE
The case is Sanders v. Sanders decided June 25, 2018 in the COA. It looks as though Linda and Jerad Sanders reached agreement on their martial property settlement at the 11th hour before their final hearing on Linda’s petition for dissolution of marriage, such that the terms were presented orally without being reduced to writing. The trial court judge heard evidence of the marital property settlement (and presumably a prove-up of Linda’s petition) and granted the dissolution while also approving the settlement. Linda’s lawyer was supposed to prepare the Decree. Instead, Linda attempted to rescind her agreed property settlement prior to submission and judicial approval of the Decree. The CLB concedes to Linda the option of rescinding an agreement (written or oral) prior to judicial approval. In Linda’s case the judicial approval was announced from the bench more or less immediately after recitation of the terms.
The COA affirmed the trial court’s refusal of Linda’s attempt to rescind. She had alleged that she suffered from stress on the day of the agreement but did not allege coercion or fraud. It is notable that: the trial court promptly announced approval of the oral agreement as presented in court; the trial court granted the dissolution at the time of final hearing; and the decree entered thereafter was back-dated to the date of final hearing…Case Note by Dave Allen
MIRANDA AT SCHOOL: B.A. AND
D.Z. CONCLUDE AS PREDICTED
The cases are B.A. v. State and D.Z. v. State, two juvenile delinquency cases decided on Transfer to the SCOTSI on June 20, 2018. These companion cases both involve the interrogation of a miscreant student at a public school. In each case there was an interrogation led by a school administrator. In D.Z. the school administrator’s interrogation was conducted behind a closed office door but without any police officer in the room.¹ In B.A. there were uniformed police officers in the room and participating during the interrogation. No Miranda warnings were given in either case. The Opinions in both cases were written by CJ Rush. There were no dissents or separate concurrences. The key distinction between the two cases was the relative proximity of the police during a school administrator’s interrogation of a student. Here is the prediction of the CLB from an earlier case note on the COA Opinion of February 22, 2018 in D.Z.:
“ With the difference being the relative proximity of police officers to an interrogation conducted by a school administrator, it could be possible for the SCOTSI to hold for suppression of evidence in B.A. and against suppression in D.Z., assuming that Transfer is requested and granted…Case Note by Dave Allen.”
The CLB predictions came to pass. School administrators interrogating a student for school purposes need not give Miranda advisements. Police officers conducting a custodial interrogation must give Miranda warnings even when the location is a school conference room or office. School “resource officers” are police (rather than school officials) for Miranda purposes…Case Note by Dave Allen.
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¹ There was actually a second interrogation in D.Z. by a police officer. The parties below agreed that results of that interrogation were inadmissible.
THE SCOTUS ON CURTILAGE
The case is Collins v. Virginia, ___ U.S. ___ (2018), a Fourth Amendment decision from the SCOTUS handed down May 29, 2018. The case features residential curtilage, motor vehicles (here a motorcycle), and the Exclusionary Rule as applied to the Commonwealth of Virginia.
It seems that Ryan Collins was in possession of a stolen motorcycle. Because Ryan posted Facebook images of the distinctive orange and black, extended-frame Suzuki, police knew to look for it at his house. The investigating officer parked on the street and spied what appeared to be an extended-frame motorcycle beneath a tarp in a partially enclosed section of a residential driveway adjacent to the house that belonged to Collins’ girlfriend and where Collins stayed a few nights per week. No issue was raised as to Collins’ standing or his expectation of privacy in the curtilage of another’s home.
The investigating officer walked up the drive to have a closer look, entered the curtilage, removed the tarp, and checked the plate and vehicle identification numbers. Collins was soon under arrest for receiving stolen property. Following the denial of his Motion to Suppress evidence, Collins was tried and convicted. The trial court and State appellate courts had used the “automobile exception” to excuse the warrantless search of the motorcycle. In a 7-1-1 split the SCOTUS held that the “automotive exception” to the warrant requirement does not justify a warrantless trespass onto residential curtilage. Justice Thomas concurred in the result but wrote separately to grumble about the Exclusionary Rule. Justice Alito dissented. The CLB is relieved that Justice Gorsuch joined the Majority Opinion written by Justice Sotomayor.
If you need a vague definition of “curtilage” you can find one here. It is noteworthy that the SCOTUS treated the motorcycle the same as a car and the curtilage the same as the adjacent house…Case Note by Dave Allen
Pirtle and the Traffic Stop
Pirtle may be understood as a Miranda variant, but only for the Hoosier State. When a person is in police custody (not necessarily arrested but not free to leave), an officer requesting consent to search should first provide the warning or advisement of that person’s right (before consenting or not) to the presence and advice of counsel. Pirtle v. State, 323 N.E. 2d 634 (Ind. 1975). The CLB last wrote about Pirtle at the end of 2017 in a case note on Dycus v. State, 90 N.E. 3d 1215 (Ind. Ct. App. 2017). Dycus applied Pirtle adversely to the State in the context of consent to a 30-minute drug recognition evaluation (DRE). By contrast, Pirtle has been held inapplicable to ordinary field sobriety testing of a suspected drunk driver. As predicted by the CLB, the State petitioned for Transfer. As of this writing the Transfer Petition has been briefed and then argued to the SCOTSI on April 24, 2018 while the decision to grant or deny Transfer is deferred. In the Dycus case note the CLB expressed concern that Transfer could result in an imprudent constriction of the Pirtle rule.
The new case that is the subject of this case note is State v. Janes, decided May 10, 2018 in the COA. The State appealed the trial court’s suppression of evidence (drugs and a gun) of a motor vehicle search conducted (with “consent”) following a routine traffic stop.
Larry Janes was driving at night and failed to dim his bright headlights for other traffic. An observing officer pulled him over for the headlight infraction. The officer saw that Janes seemed nervous and possibly impaired. The officer called for backup, to the end that there were three police officers on scene (one at the vehicle driver’s door and one at the passenger door) and three flashing-light police cars when Larry Janes was asked (without the benefit of a Pirtle warning) to consent to the search of his vehicle The COA rightly affirmed the trial court’s conclusion that a reasonable person would consider himself not free to leave (and therefore in custody) under the recited circumstances.
The “Transfer pending” status of Dycus calls into question the vitality of the Pirtle rule to traffic-stop “consent” searches. The CLB supports the Pirtle rule as expressed in the cases cited here… Case Note by Dave Allen.
Tenant’s Slip & Fall on Icy Walk
The case is Dehoyos v. Golden Manor Apartments, decided May 7, 2018 in the COA, reversing Lake Superior Court Judge John Sedia’s SJ for defendant Golden Manor. Senior housing tenant Frances Dehoyos exited her apartment building between 10:00 a.m. and 11:00 a.m. one winter morning. She fell on an icy walk and sustained injuries. Suit was brought asserting invitee status for Dehoyos and negligence against Golden Manor in its capacity as an owner of property. There is no hint in the Opinion of any assertion of breach of lease from the insufficiency of Golden Manor’s efforts o remove ice and snow from common area walkways.
Judge Sedia granted the SJ to Golden Manor on grounds of “no dispute of material fact” that Golden Manor knew or should have known of a condition posing an unreasonable danger to invitees. There was evidence that conditions at Golden Manor had required salt treatments for several days preceding the fall. There was no evidence of a sudden ice storm just prior to the fall.
The best part of the Opinion is a researcher’s treasure trove of slip & fall cases on icy/snowy paved surfaces. The COA Opinion is sound. Congratulations to Merrillville attorney Robert Plantz for his successful appeal… Case Note by David Paul Allen.
The Oracle of Transfer
Imagine having a superpower that’s of no particular use to you or to anyone else. Once again the CLB’s predicted Transfer of a COA case has come to pass. The case is McGrath v. State, decided May 1, 2018 in the SCOTSI after a decision of July 31, 2017 in the COA. McGrath features a thermal imaging warrant and its supporting affidavit.
The drama began with an anonymous tip (most likely from a neighbor) of a “possible marijuana grow room” in an Indianapolis residence. Where hearsay is tendered as probable cause for a search warrant, there must be a showing of the credibility of the hearsay source or nonhearsay information that corroborates the hearsay. See IC 35-33-5-2 (b) for the statutory expression of this rule arising from the Fourth Amendment. When the hearsay informant is anonymous (even to the police) the task of establishing credibility is formidable. Here the anonymous report of covered windows, emanating bright light, and the wafting aroma of marijuana were held to be sufficiently corroborated by the observations (also in the PC Affidavit) of an officer noting the same covered windows and emanating light but no scent of marijuana. However, the officer also saw two window air-conditioners in the upstairs of a house with central air-conditioning. If that seems like weak corroboration it is indeed weak. Still, weak corroboration is enough for our SCOTSI… Case Note by David Paul Allen.
The Warrant Requirement and Miranda Trashed in the COA
It was December 4, 2017 when the CLB addressed the phenomenon of the “special deputy” in a Featured Article. The COA case decision (of April 26, 2018) under review is Randall v. State, the unsuccessful interlocutory appeal of defendant Scott Randall’s motion to suppress following the warrantless search of his parked auto. The officer conducting the search was “special deputy” Ashley Rose (a dude, really) who held a commission from the Marion County Sheriff. In the course of his work as private security for Indy’s St. Vincent’s Hospital, deputy Rose spied a man in the driver’s seat of a legally parked Ford Focus. The driver’s door was open, and Rose described the man as being slumped over the steering wheel.
Deputy Rose fell quickly into action mode, deciding to conduct a “welfare check,” the sort of welfare check that requires the blocking of the Ford Focus in its parking space and the activation of the “takedown” lights on the security vehicle. Scott Randall responded promptly, exited his parked car, and walked toward deputy Rose who, in turn, ordered (by what authority?) Randall to return to his parked vehicle. If this is a “welfare check,” then the term is due for a new definition.
Apparently unsatisfied with his own observations that Randall could respond to external stimulation, walk without assistance, and hear, comprehend, and comply with an order, deputy Rose’s duty to protect and serve compelled him to further investigate Randall’s welfare. From Randall’s perspective, he saw his car blocked in a parking space, himself back in the car by police order, and then himself blocked from exiting the car by deputy Rose standing outside the still-open driver’s door. At what point would a reasonable man feel that he is not free to leave? Miranda requires no more than that for an interrogation to be “custodial.”
Deputy Rose began “speaking with” (a/k/a “interrogating”) Randall and couldn’t help noticing his nervous, furtive demeanor. Deputy Rose also noticed a folded square of aluminum foil which aroused his suspicion of narcotic use. Deputy Rose asked Randall (without Miranda advisements) “what else in the vehicle he would not want a canine officer to find.” Randall then confessed to having a marijuana pipe. Deputy Rose ordered Randall to exit the vehicle. When Randall refused and protested he was threatened with a taser and physically accosted by deputy Rose. While controlled by deputy Rose’s “wrist lock,” Randall blurted out, not that he would comply by leaving the car, but rather “it’s in the door” referring to his stash of meth. Deputy Rose persisted by asking what “it” was (as though he didn’t know), again without the benefit of a Miranda advisement. From here the described activity bears close resemblance to beating a confession out of a prisoner.
Deputy Rose cuffed Randall, seated him “nearby,” and conducted a further search of the vehicle. The COA remarkably described Randall’s status as “in custody” only after he was handcuffed. There was no mention of the vehicle search being in accordance with an impoundment/inventory protocol.
In the subsequent prosecution for possession of meth and of paraphernalia the trial court overruled Randall’s motion to suppress. As a matter of law the trial court concluded that the “welfare check” (a/k/a investigatory confrontation) was justified by the “community caretaking” exception to the warrant requirement. See McNeal v. State, 76 N.E. 3d 136 (Ind. 2017) for the SCOTSI’s holding that “community caretaking” applies to cars parked dangerously on a right-of-way but not to people thought to be in distress. The COA acknowledged the trial court’s error but nonetheless elected to affirm the suppression denial under an alternative theory that had not been considered in the trial court.¹ The new theory was the “emergency aid” doctrine. WHAT?! There is no such doctrine in Indiana’s search & seizure jurisprudence. The CLB knows of one reported appellate opinion mentioning the “doctrine” in dicta without applying it The COA opinion here attributes “emergency aid” doctrine decisions to the Indiana Supreme Court which has, remarkably, never used that term.
Here are some nearly random thoughts about how the police encounter here should be evaluated. Was it a Terry stop? No. There was no reasonable suspicion (initially) of criminal conduct. Was it merely a consensual encounter? No. Randall was trapped (and an investigative target), not consenting. When does the excuse of “emergency aid” expire? It expires when there is no longer an emergency. In this case, it ended when Randall exited his car in response to deputy Rose’s arrival, walked without assistance, and heard, comprehended, and obeyed the order to return to his car. Randall might still have been in need of assistance, but not emergency aid. When was Randal “in custody” for Miranda purposes? Well before he was handcuffed and prior to the end of deputy Rose’s investigative interrogation.
The general “exigent circumstance” exception to the warrant requirement is broad enough to cover an “emergency aid” situation where an officer can establish the exigency with articulable, objective circumstances. The trial court did not consider “emergency aid” cases from the federal courts or from other states. The SCOTSI has not weighed in on the “emergency aid” doctrine under either the Fourth Amendment or under Article 1 Section 11 of the Indiana Constitution. The CLB implores the SCOTSI to take jurisdiction on Transfer.
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¹ Being bound somewhat by trial court findings of fact (upon the blatantly dubious testimony of deputy Rose), the COA missed its opportunity to remand for further proceedings to consider the “welfare check” under the “emergency aid” doctrine.
Alleging the Undiscovered
The context is the firing of a Gary Police Officer for the alleged misuse of the NCIC and IDACS databases in order (allegedly) to put heat on a snitch who had turned in another GPD officer. The case is City of Gary Police Service Commission v. Robinson, an April 17, 2018 COA Opinion reversing the trial court’s SJ in favor of the fired officer on judicial review (per IC 36-8-3.5) of the Commission’s decision discharging him. The COA unanimously reversed the SJ and remanded for further proceedings.
The trial court and COA differed as to the meaning of the Police Service Commission’s Rule II (7) (A), to-wit:
“Except as otherwise provided, disciplinary proceedings must be commenced within one-hundred and twenty (120) days from the date the alleged misconduct is discovered. Disciplinary proceedings against a police officer are barred after the expiration of two (2) years from the date of the occurrence of the alleged misconduct, unless the misconduct would, if proved in a court of law, constitute a felony or a Class A misdemeanor in which case the disciplinary proceedings may be commenced at any time.”
Around 40 days following Officer Raymond Robinson’s alleged misuse of the databases for allegedly nefarious reasons, Police Chief Wade Ingram gained sufficient knowledge of it to promptly transfer Robinson to desk duty. Since the snitch was a federal snitch, the FBI continued with an investigation in liaison with Indiana State Police. It was around 230 days after the Chief’s transfer of Robinson that the State Police had “substantiated” the allegations against Robinson of misuse of the databases. Around 99 days later the City of Gary filed a complaint against Robinson with the Police Service Commission in order to fire Robinson from the GPD.
The Police Service Commission fired Robinson. He sued for judicial review urging that the discharge complaint was untimely under the cited Rule. The trial court agreed that the 120-day limitations period began to run when Chief Ingram ordered Robinson’s transfer to desk duty. The COA agreed with the Commission that the 120-day limitations period began to run only after the FBI/ISP investigation was complete and its conclusions reported back to the GPD.
The COA position is erroneous. The COA (incredibly) gave the Commission the benefit of that rule of statutory construction favoring the interpretation (by rule) of an administrative agency tasked with executing the mandate of the given statute.¹ Here the COA has allowed a party (the Commission) to make the ad hoc decision of what its rule means, all in the absence of evidence of the long-standing adoption of the interpretation and/or legislative acquiescence. Moreover, there is no inherent ambiguity or vagueness in a “discovery” date such that resort to rules of construction would be appropriate. If the COA is correct, then a police chief can execute a disciplinary transfer of an officer some 230 days before having “discovered” the misconduct… Case Note by Dave Allen.
________________________ ¹ The COA Opinion cites to Andy Mohr West v. Off. of Ind. Secretary of State, 54 N.E. 3d 349, 353 (Ind. 2016) for the supposed holding that great weight must be given to an agency’s interpretation of “its own rules.” To the contrary, the holding of the cited SCOTSI precedent is that great weight should be given to an agency’s interpretation of the relevant statute.
The Futility of a Legal “ACE”
The case is Poortenga v. State, a 3-0 reversal decided April 10, 2018 in the COA. Most of us have an awareness of the consequences of flunking the breathalyzer test after a traffic stop. For one Lake County motorist it made no difference at his jury trial that he had passed the breath test with an alcohol concentration equivalent (ACE f/k/a, BAC) of 0.069, measurably below the so-called “legal limit” of 0.08. In fact the trial court orally admonished the jury to ignore the circumstance (in evidence) of a passed breath test.
Here’s a very brief review of some relevant statues. IC 9-30-5-1 criminalizes an ACE of 0.08 or higher without reference to impairment. IC 9-30-5-2 criminalizes operating while intoxicated without reference to ACE. IC 9-13-2-131 provides that ACE of 0.08 or more is prima facie evidence of intoxication. The term “intoxicated” is defined at IC 9-13-2-86 with reference to alcohol-induced impairment but not to any particular range of ACE.
Its seems that motorist Heath Poortenga was driving home (from a tavern) in the wee hours when he was pulled over for a defective headlight. He failed his roadside sobriety tests. On the way to the police station for his breathalyzer he puked in the police vehicle. But then he took the breathalyzer and “passed” with an ACE reading of 0.069. Nevertheless, he was charged with the basic “C” Misdemeanor OWI Offense under IC 9-30-5-2 and the “A” Misdemeanor under the same statute for OWI plus “endangering” another person. Notably, Heath had no passenger. There was no collision or near-collision with any other vehicle. He was not speeding or driving recklessly.
Mr. Poortenga was convicted of both OWI Offenses though the “C” Misdemeanor Offense was treated as a lesser included Offense (which it is) for purposes of judgment of conviction. Finding insufficient evidence of endangerment to another person, the COA reversed the “A” Misdemeanor convitction, upon which there can be no retrial. Finding error in the trial judge’s admonition that jurors ignore evidence of the “passed” breath test, the COA reversed the “C” Misdemeanor OWI conviction and remanded for retrial. The position of the CLB is that retrial of the “C” Misdemeanor should be barred due to the intentional misconduct of the State in objecting to proper defense argument and duping a court commissioner (not a regular sitting judge) into giving a patently erroneous and patently unjust admonition.
One tangential message from the case is that lawyers who think that jury trial is a reasonable option for drunk driving defendants may be wrong… Case Note by Dave Allen.
An LLC Member’s “Reckless” Failure To Pay
Perhaps the biggest single reason for a small business owner to incorporate or to organize as an LLC is to protect private assets (like your house) from business liabilities. The issue of an LLC member’s personal liability for a business debt is examined in the case of Blacklidge v. Blacklidge decided March 13, 2018 in the COA. Mark (the son) and Kevin (the father) Blacklidge were real estate appraisers who joined into an informal partnership to ply their trade. After a few years they organized into an LLC without a formal operating agreement. Then the father departed the LLC as a member but continued doing appraisals for the LLC for another year and a half.
It seems that Kent (the father) had a claim for more than $40,000.00 in unpaid commission fees (70% of the gross commissions attributed to him). More than two-thirds of Kent’s claim dated back to the time when he and son Mark were the two members of the LLC. The remainder of Kent’s claim dated to that period of time when Kent had given up membership in the LLC but was still doing appraisals for it.
Father Kent sued son Mark but not the LLC. Mark defended in relevant part with the assertion that any debt was that of the LLC and not his personal obligation. Following a bench trial, the court below made findings and entered judgement for father Kent against son Mark for more than $40,000.00. The trial court was aware that it had not “pierced the corporate veil” between the LLC and Mark but rather ignored the LLC structure on the theory that the (oral) father-son contract for fee sharing pre-dated the LLC and then existed outside the LLC. The COA found error in the trial courts “disregarding” the LLC but affirmed the personal liability judgement on other grounds.
Here is where it gets strange. The COA cited language of IC 23-18-4-2(a) describing the probable immunity of an LLC member from personal liability “unless the act or omission constitutes willful misconduct or recklessness.” The claim of Kent against his son was clearly contractual while the terms “willful” and “reckless” are more descriptive of tortious conduct or breach of a noncontractual duty. Still, the COA reasoned that Mark was personally liable for the LLC debt which Mark had willfully or recklessly omitted to pay. Adding absurdity to this irrationality is the COA’s disregard of the circumstance that most of Kent’s claim accrued while he and Mark were co-equal members of the LLC with respect to that time period, there is no distinction in the trial court’s findings between the conduct of Mark and the conduct of Kent who (perhaps) should have been awarded an in personam judgment against himself. Review on Transfer could be helpful here…Case Note by Dave Allen.
Miranda Goes to School
The case is D.Z. v. State, decided February 22, 2018 in the COA and reversing a juvenile delinquency adjudication for the trial court’s admission, over objection, of incriminating statements made by an accused juvenile student to a school official without the benefit of a Miranda warning or parental consultation.
The offense was sex-themed graffiti in the boys’ room. Surveillance video of entries into the boys’ room helped Assistant Principal Dowler and cop/school employee Officer Flynn to identify D.Z. (Let’s call him “Doug.”) as their prime suspect.
Assistant Principal Dowler called “Doug” to his office for a “discussion.” Officer Flynn was not present, but Dowler’s office door was closed. Doug was not afforded a chance to speak with a parent. Doug was not advised of his right to remain silent or of any other rights. Dowler laid a hard accusation on Doug, who promptly confessed. Dowler announced a 5-day suspension and then left briefly to inform Officer Flynn. While Dowler was finally notifying Doug’s father, Officer Flynn entered Dowler’s office (where Doug remained) for an interview with Doug, all without Miranda rights or parental consultation. At the end of the interview Flynn advised Doug that he was being charged with a crime.
The facts of Doug’s case are strikingly similar to those of B.A. v. State,¹ decided March 29, 2017 in the COA. In B.A. there was an unsuccessful challenge to the trial court’s admission, over objection, of evidence of an interrogation in a school administrator’s office. The student was suspected of scrawling a bomb threat on the wall of a middle school boys’ room. While the interrogation was conducted mostly by the school administrator, multiple school police officers were in the room. No Miranda rights were given. No pre-interrogation parental consultation was offered. The student who confessed was first suspended (pending expulsion) and then arrested. The COA Opinion in B.A. was authored by Judge Brown, seen again in dissent to the reversal in D.Z. The CLB is happy to announce that the COA’s affirmance in B.A. was vacated on Transfer. The CLB looks forward to the SCOTSI decision.
As you know, Miranda warnings should be given prior to any “custodial² interrogation” by police or by persons with police-like powers. Parents, of course, needn’t Mirandize their miscreant children. Schools exercising in loco parentis authority or administrative authority over scholastic (rather than criminal) matters seem to have enjoyed an exemption from the Miranda obligations of police. But times change, and the line between police and school administration blurs.
In contrast to the facts of B.A., there was no police officer in the room when Doug was interrogated by Assistant Principal Dowler. Yet an officer was nearby and was alerted by Dowler after Doug’s confession. Notably, Officer Flynn continued the interrogation without benefit of Miranda advisements. The trial court suppressed Doug’s statements to Officer Flynn but not his statements to Dowler. The COA’s 1-1-1 decision reversed both the denial of suppression and the delinquency adjudication.
With the difference being the relative proximity of police officers to an interrogation conducted by a school administrator, it could be possible for the SCOTSI to hold for suppression of evidence in B.A. and against suppression in D.Z., assuming that Transfer is requested and granted…Case Note by Dave Allen.
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¹I meant to draft a disapproving case law note on B.A. until I became distracted by the actual practice of law.
²There needn’t be an arrest for an interrogation to be “custodial.” If a reasonable person in similar circumstances would believe he is not free to leave, then an interrogation is custodial. An interrogation at the police station will more readily be deemed custodial than one at the schoolhouse.
“Sudden Heat” Explained (at last)
The case is Brantley v. State, decided February 16, 2018 in the SCOTSI. Billy Brantley’s conviction (by jury trial) of the voluntary manslaughter of his brother-in-law had been reversed in the COA over the issue of sudden heat, which is the factor distinguishing voluntary manslaughter from murder. Most often voluntary manslaughter is seen as a “lesser included” offense where murder is the lead charge. In Billy Brantley’s case, the Marion County Prosecutor rightly decided (on the evidence) against charging murder. The lead or sole charge against Brantley was voluntary manslaughter as defined at IC 35-42-1-3(a) and providing in relevant part that “a person who knowingly or intentionally…kills another human being…while acting under sudden heat commits voluntary manslaughter.” Sec. 3(b) of the same statute describes sudden heat as a mitigating factor (distinguishing voluntary manslaughter from murder) rather than as an element of the offense.
Brantley claimed self-defense and introduced evidence in support of that defense. The State purported to establish the mitigating factor of sudden heat by concession. Brantley even conceded to a jury instruction to that effect. While sudden heat seems to preclude rational deliberation, self-defense may be said to require it. Nonetheless, the SCOTSI held that the two theories are “not inherently inconsistent” so as to preclude (in a proper case) jury instructions on both.
Even though sudden heat is a mitigating factor as opposed to an element of the offense, there must be some evidence of it to support a jury instruction or conviction. The SCOTSI found “scant” evidence of record of sudden heat, and “scant” generally means sufficient…Case Note by Dave Allen.
Long Beach Dispute Settled?
Update: Denial of Certiorari on 02/19/2019. See 2019 Appellate Case Notes for More.
In my case note from December of 2016 (“Long Walks on Long Beach”) I predicted (rightly) the grant of Transfer while predicting (wrongly) the adoption on Transfer of a more practical and more certain method of determining the Lake Michigan “Ordinary High Water Mark” or OHWM. The SCOTSI Opinion in Gunderson v. State was handed down February 13, 2018. The 4-0 SCOTSI (Slaughter, J. not participating) Opinion wades through a mind-numbing mix of state and federal authority. Held: the owners of land adjacent to the beach own only above the OHWM. The beach below the OHWM is owned by the State as a public trust, where the proletariat are free to romp and howl to the great annoyance of owners of the adjacent beach houses.
But where, exactly, is that defining OHWM? The SCOTSI agreed with the COA that the OHWM would be determined by the venerable but imprecise common law standard. The SCOTSI did not disclose how often the OHWM should be reset in this era of highly variable lake levels. The clear result of the Opinion is that owners of beach houses cannot claim a “private beach” to the water’s edge.
The next battleground in the war for beach access will likely be access. Beach house owners may seek to limit the public’s access to its public beach…Case Note by Dave Allen.
Dead Dog Venue?
The case is Bagsby v. Snedeker, decided February 9, 2018 in the COA. The Complaint of Kelly and Aaron Bagsby alleged that their neighbor, Riley Snedeker, shot and killed their dog in Warren County while all parties lived in Warren County.¹ The Bagsbys took their deceased dog to Tippecanoe County for a necropsy and then filed suit against Snedeker in Tippecanoe County. Snedeker moved to transfer venue to Warren County. The case reached the COA on the Bagsbys’ interlocutory appeal (as a matter of right) of the trial court’s order correcting the venue to Warren County. The COA affirmed.
All litigators know or should know that preferred venue counties are described in the 10 subsections of TR 75(A). When preferred venue lies in more than one county, there is no hierarchy among the subsections of TR 75(A). This means that the plaintiff (by the act of filing his complaint in a particular county) has the discretion to choose among counties of preferred venue. Venue is correct when filed in a county of preferred venue even when there are other counties of preferred venue viewed as more convenient by a defendant.
Here is the troublesome description of preferred venue from TR 75(A)(2):
(2) the county where…the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto…
The dog, of course, was (tangible) personal property or “chattel.” According to the COA Opinion, the Bagsbys asserted TR 75(A)(2) preferred venue in Tippecanoe County due to the transfer there of the dog’s remains. A problem with TR 75(A)(2) and chattel-based venue is that chattels are portable so as to invite forum shopping. The solution in the COA is to hold (as it and the SCOTSI have previously done) that the SCOTSI rule does not mean what it says. It would be preferable for the SCOTSI to amend TR 75(A)(2) so that a reasonably careful reader could discern its meaning by the words alone…Case Note by Dave Allen.
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¹Though the COA had a record including the Complaint, it did not explain any circumstance of the alleged shooting.
Attenuated Fruit, Anyone?
Update: Held in Transfer decision of October 4, 2018 that federal attenuation rule for Fourth Amendment violations applies to Article 1 Section 11 of the Indiana Constitution. See Featured Article posted October 9, 2018.
The case is Wright v. State, decided January 24, 2018 in the COA reversing child molestation convictions on grounds of the trial court’s admission (over objection) of Wright’s confession to police given on the third day following an unreasonable search and seizure.
David Wright lived in a basement apartment of a large home that had been “subdivided” into apartments. He shared a street number (220) with a family with children which occupied a main floor apartment. Upstairs from the main floor there was the owner’s apartment identified by a slightly different street number (220½). The owner supplied internet service to his tenants by way of an account identified with the owner’s street number.
Then came the F.B.I. with a federal search warrant from Washington, D.C. to search for child pornography on computers at street number 220½ (which was the address linked to the internet account for the whole building).
F.B.I. agent Robertson discovered the street number snafu only after arrival at the scene with a crew of armed federal and state officers. Note here the language in the Fourth Amendment and also in Article I Sec. 11 of the Indiana Constitution requiring a search warrant “particularly describing the place to be searched.” Though too stupid to do some simple reconnaissance before the staged raid, F.B.I. agent Robertson was smart enough to see that his search warrant was useless as to the “220” street number where Wright and the family with children lived. Rather than seek a parallel warrant (locally or in D.C.) for street number 220, Robertson improvised by rousting the occupants of number 220 (Wright and the family with children) and coercing their “consent” to his warrantless seizure of all their “electronic devices” in order to scan the same for child pornography.¹
A few days after the warrantless seizures agent Robertson returned to street number 220 to return the devices taken from the family but not the two computers taken from Wright. He agreed to discuss the matter in Robertson’s vehicle (probably not a conventional police vehicle). Wright was advised (at first) that he was not in custody and was free to go at any time. After being advised that evidence of child porn was found on a computer from his residence, he began confessing to acts of molestation (recorded on his computer) against two young children of the main floor family. Robertson halted the discussion at that point and contacted local police whom he obliged by arresting Wright and delivering him to the police station. There a local officer “Mirandized” Wright before taking his full confession.
As explained below in footnote 1 the trial court granted suppression of evidence from the seized computers. On the other hand, the trial court denied suppression of the confession that followed days later. The trial court seems to have concluded that the violation of the coerced warrantless seizure of computers was attenuated by time and/or Miranda rights such that the subsequent confession could be admitted in evidence under a federal exception to the exclusionary rule for derivative evidence. Such federal exceptions applying to derivative evidence (a/k/a “fruit of the poisonous tree”) related to an antecedent violation of search and seizure law include the mentioned attenuation as well as “independent source” and “inevitable discovery.”
But what about Article I Sec. 11 of the Indiana Constitution? Doesn’t it accommodate the federal exceptions to the exclusion of derivative evidence subsequent to a search and seizure violation by the State? The answer is a comforting NO. The COA reversed on Section 11 grounds and remanded for a new trial. Expect a Petition to Transfer from the AG on grounds that no SCOTSI decision has settled the relevant point of law…Case Note by Dave Allen.
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¹The COA made no substantial analysis of the coercive seizure of electronic devices (two computers) from Wright. The trial court had granted that part of his suppression motion directed at incriminating evidence from the computer search. Since the State did not appeal that trial court ruling, it became the law of the case.
The “Send Button” Fail
The case is CRIT Corp. v. Wilkinson, decided January 23, 2018 in the COA. It involves a disgruntled client suing his lawyers over an undisclosed conflict of interest. Attorney Peter Trybula and his firm Barnes & Thornburg were defendants below and appellees in the COA after the client’s original and amended complaints against them were dismissed in the trial court.
Peoplelink, a “nationwide staffing solutions business” based in South Bend, was owned privately by the Wilkinson family until the 2011 sale of a controlling interest to CRIT. William Wilkinson stayed on for the next several years as President and CEO of Peoplelink. When William separated from Peoplelink and sold his interest in the company to CRIT, he was represented by attorney Trybula and Barnes & Thornburg. The separation of Wilkinson from Peoplelink included a non-compete agreement¹ to keep him out of the staffing business.
After the deal was done, Peoplelink (owned by CRIT) used Wilkinson’s lawyer Trybula and Barnes & Thornburg for legal services. But around seven months after his separation from Peoplelink and his non-compete agreement, William Wilkinson was looking to re-enter the staffing business by acquiring “JIT,” an Ohio-based staffing company located only 250 miles from Peoplelink’s South Bend headquarters. Moreover, Wilkinson was apparently still utilizing the services of attorney Trybula and Barnes & Thornburg.
The “send button” incident occurred July 1, 2016 when the new President/CEO of Peoplelink (after Wilkinson’s departure) received an email from attorney Trybula, who had intended the message for his old/current client William Wilkinson. The email pertained to Wilkinson’s prospective purchase of “JIT.” It seems that attorney Trybula soon realized his error and was disappointed with the lack of an “undo ” button for misdirected email while CRIT and the new management at Peoplelink were disappointed that one of their lawyers would abet Wilkinson in an apparent (albeit anticipatory) breach of the non-compete agreement.
CRIT and Peoplelink filed suit against Wilkinson² for “anticipatory breach” of the non-compete agreement and against Trybula and Barnes & Thornburg to express some old-fashioned outrage. The initial complaint against the lawyers alleged a breach of fiduciary duty arising from an alleged conflict of interest. That initial complaint was dismissed by the trial court. The (second) amended complaint alleged legal malpractice, fraud, and constructive fraud arising from the same conflict of interest. CRIT and Peoplelink seemed to believe that Indiana Rule of Professional Conduct 1.7³ was a benefit to their case…They were wrong. Their invocation of the (allegedly) violated Rule of Professional Conduct encouraged the trial court to dismiss on grounds of lack of subject matter jurisdiction per TR 12(B)(1) and failure to state a claim per TR 12(B)(6) in that lawyers may not be sued for a breach of fiduciary duty based solely on the breach of a Professional Conduct Rule. Rather, a suit against a lawyer for breach of fiduciary duty must have an “independent common law basis.” The (second) Amended Complaint alleging the same operative facts was likewise dismissed.
The COA affirmed both dismissals on appeal. According to the online Roll of Attorneys (visited January 23, 2018) attorney Trybula is still with Barnes & Thornburg and has “no disciplinary history.” It appears so far that Trybula and Barnes & Thornburg have escaped consequences for what appears to have been a blatant, undisclosed conflict of interest. In terms of the civil (as opposed to professional) liability, the CLB is forced to wonder whether CRIT and Peoplelink incurred any actual monetary damages from the apparent infidelity of counsel…Case Note by Dave Allen.
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¹The geographic and durational bounds of the covenant against competition were not described in the COA Opinion.
²The claims against Wilkinson were dismissed by the trial court, but he remained (technically) a party on appeal.
³Professional conduct Rule 1.7 generally prohibits representation of one client when such representation will be “directly adverse” to another client.
Negative Child Support
The case is Marshall v. Marshall, decided January 18, 2018 in the COA. The matter appealed was (mostly) a post-decree child support modification with a curious result which the CLB will describe as “negative” child support.
Father and Mother are the divorced parents of two children in Father’s physical custody. Mother has parenting time determined by an agreement. The COA Opinion does not share Mother’s number of overnights for CSOW purposes, though the CLB speculates that the number exceeds 120 per year.
Mother was initially ordered to pay no support. On modification she was ordered to pay $52.00 per week. Then she petitioned to modify child support. The resulting order (subject of the appeal) required Father (the custodian) to pay child support of $58.00 per week to noncustodial Mother. We always knew that the Support Guidelines could be confounded by the combination of a huge disparity in income favoring the custodial parent and a high number of noncustodial overnights. Still, this is a rare result and possibly the first published appellate opinion approving (in principal) an obligation of child support to a noncustodial parent where the noncustodial parent was not, for instance, paying a substantial sum for child health insurance. See Grant v. Hager, 868 N.E.2d 801 (Ind. 2007) for the holding that a custodian could be ordered to pay support to the noncustodial parent but that such would constitute a Guidelines deviation requiring a judicial explanation.
A less remarkable oddity of the case is an appearance from amicus curiae (here the “Neighborhood Christian Legal Clinic”) in a family law case. Look for Transfer…Case Note by Dave Allen.
State Farm and “Moral Obliquity”
The case is Earl v. State Farm, decided January 16, 2018 in the COA. The case is a helpful reminder of the intrinsic evil of insurance companies (even the reputable ones). The title reference to “Moral Obliquity” comes from Opinion text quoting an assertion of the appellant (against State Farm) that seems understated on the recited circumstances.
Motorcyclist Jerry Earl was injured in a crash with a hit-and-run semi driver. He (prior to his death by unrelated causes) and wife Kimberly sued their insurer, State Farm, on their policy’s UM coverage, which featured limits of $250,000.00. In the course of that litigation the Earls propounded an interrogatory asking for information about their own coverage (and coverage limits) through State Farm. Though aware of a second State Farm umbrella policy with UM coverage of $2,000,000.00, State Farm disclosed only the motor vehicle policy and its UM coverage limited to $250,000.00.
The UM claim proceeded to a trial in which evidence of UM coverage limits of $250,000.00 was admitted over objection.¹ The jury awarded Jerry’s estate and Kimberly a combined sum of $250,000.00. A week later State Farm belatedly disclosed the additional $2,000,000.00 in UM coverage through the umbrella policy. Plaintiffs filed a motion to correct error but later withdrew it to pursue a separate action for fraud and bad faith. The separate action resulted in summary judgment for the defendants and the present appeal brought by Jerry’s estate and Kimberly.
In the separate action for fraud and bad faith State Farm had success below arguing that the new suit was an “impermissible collateral attack” on the judgment from the first suit and that relief was otherwise unavailable or waived. Remarkably, State Farm asserted that the plaintiffs could not “reasonably rely” on information from State Farm in the answer to the described interrogatory.²
The COA held the separate action for fraud and bad faith did not “overlap” with the prior UM contract claim, such that there would be no collateral estoppel. The COA further held that whether the plaintiffs reasonably relied on State Farm’s lies presented a question for the jury. Moreover, the COA held that the issue of fraud was likewise for the jury. The CLB agrees with the COA but expects a Transfer petition from State Farm…Case Note by Dave Allen.
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¹State Farm appealed the UM judgment asserting prejudicial error in the admission of evidence of policy limits. The COA reversed at 3 N.E.3d 1009 (App. 2014), and the SCOTSI affirmed the trial court. State Farm v. Earl, 33 N.E.3d 337 (Ind. 2015) concluded that here was judicial discretion to admit evidence of policy limits in this contract (as opposed to tort) claim by policyholders against their insurer. Compare the general rule of keeping liability insurance and its limits a secret in tort litigation.
²It certainly is curious how the Earls seemingly failed to read their own umbrella policy but rather asked State Farm to disclose all UM coverage.
Escape from Home
The case is Keith v. State decided January 11, 2018 in the COA. On the sixth day of her 180-day home detention sentence Amber Keith was away from home (with permission) to be fitted with a GPS ankle bracelet. The home detention officer in charge of the fitting instructed Amber “to go directly home.” She did not go directly home, though she reached home eventually only to depart again without authorization. Amber was charged with a new offense, escape, contrary to IC 35-44.1-3-4(c). The COA case is Amber’s failed appeal of her conviction. Her theory on appeal was that she could not “escape” from her home in that her home was not a requisite “place of lawful detention.” The COA disagreed and held that a home is a place of lawful detention for an individual sentenced to home detention. Notably, Amber was charged with “escape” not for departing a place of detention but for failing to return after temporary leave.
It seems a shame that Amber’s attorneys did not object to the testimony of the home detention officer about the wondrous capabilities to GPS tracking to determine location. Whether or not there was a Daubert objection at trial, no such issue was raised on appeal. With a proper contemporaneous objection the State should have been required to lay a foundation of expert testimony prior to introducing GPS evidence. A probable majority of GPS tracking cases will arise as probation revocation actions and, accordingly, may not involve the full panoply of evidentiary protections afforded to someone (such as Amber) being tried for a new offense…Case Note by Dave Allen.
Delinquent in Absentia
The case is R.R. v. State, a juvenile delinquency case decided by split decision in the COA on January 11, 2018. At age 17 R.R. failed to appear in court for the “combined factfinding hearings” in his juvenile delinquency and probation violation cases. The court conducted the hearing in R.R.’s absence and found that he had committed the subject delinquent act and that he had violated his probation. Notably, the court deferred the dispositional hearing (akin to an adult sentencing) until R.R. was in custody.
The COA majority and the dissent agreed that a juvenile has a constitutional right to be present at a delinquency factfinding or probation revocation hearing. The majority concluded that a juvenile could waive that right by knowingly and intentionally failing to appear. The dissent accepted R.R.’s argument that his right to be present could not be waived by his choice to be absent but rather only in accord with the juvenile waiver of rights statute at IC 31-32-5-1. Under that statute there is no opportunity for waiver of a juvenile’s constitutional rights in the absence of the juvenile. The statute purports to set forth the only means for such a waiver.
If we compare juvenile procedure to adult criminal procedure, the factfinding hearing corresponds to a trial. An adult who fails to appear for his trial thereby waives his sixth Amendment right to be present and may be tried in absentia. Freeman v. Statute, 541 N.E.2d 533, 535 (Ind. 1989). There is no known Indiana statute purporting to control how an adult may waive his constitutional right to be present at his trial.
Here are some factors rendering R.R.’s case more troublesome than it should be. To begin, there is the old lame myth that juvenile delinquency cases are civil (as opposed to criminal) in nature. While accepting that misdescription of juvenile delinquency cases, the SCOTUS nonetheless recognized the liberty interests at stake and held that most constitutional rights applicable to criminal prosecutions (notably excepting the right to trial by jury) are applicable as well to a juvenile delinquency proceeding. In re Gault, 387 U.S. 1 (1967).
A second factor making R.R.’s case more troublesome is the insouciant General Assembly presuming (by its legislative authority) to declare first the waivability of constitutional rights of juveniles and second that it can prescribe an exclusive methodology of waiver. The incongruity of the General Assembly modifying constitutional rights by way of legislation seems to have been missed by the COA panel in the case of R.R.
The essence of the disagreement between the majority and the dissent resides in the “absurdity doctrine” as applied to IC 31-32-5-1 (the juvenile waiver statute) which expressly requires that an unemancipated juvenile voluntarily join in any waiver of rights sponsored by his attorney or parent. As written, the statute would allow a miscreant juvenile to game the system with strategic failures to appear. The COA majority declares that circumstance to be an absurdity which the legislature could not have intended, despite clear language to the contrary. In contrast, the dissent would not construe an unambiguous statute to relieve the juvenile justice system from legislative stupidity.
The CLB sides with the majority as to the result, but for a reason not embraced by the majority. In the view of the CLB the juvenile waiver statute is simply an incompetent expression from the General Assembly relating to the waiver of constitutional rights. That area of law is vested in the judiciary. Accordingly, the juvenile waiver statute should be ignored rather than construed. It would be helpful to have a clarifying SCOTSI decision on Transfer…Case Note by Dave Allen.