2015 Appellate Case Notes

Pay the Lady, Counselor

See the December 23, 2015 COA Opinion in Topolski v. Egan. It seems that Elkhart attorney Eugene Topolski hired Bonnie Egan as his legal assistant. Bonnie started in 2005 at $520.00 per week and began earning $600.00 per week in 2010. From the beginning of 2010 through her April 10, 2012 resignation Bonnie went uncompensated for 36 weeks! Following her resignation Bonnie filed suit under IC 22-2-5-2 (the wage payment statute) for back pay of $21,600.00 plus liquidated damages and attorney fees as provided in the statute. The trial court entered judgment against Topolski in the composite sum of $85,104.14. The COA affirmed unanimously. To me the most remarkable aspect of the case is that a legal assistant out there in the real world worked for weeks on end without being paid…Case Note by Dave Allen

Duty to Render Aid, Transfer Bait from the COA

The homeowner co-host of (live-in) boyfriend’s birthday party is sued by the Personal Representative of a deceased party guest and the bankruptcy estate of an injured guest on theories of dram shop and “failure to render aid” to an injured guest who died of his injuries. See Rogers v. Martin decided December 14, 2015 in the COA. This post concerns only the latter cause of action. Trial court awarded SJ to the homeowner. COA now reverses on theory that there was a cause of action against a party host for failure to render aid to an injured or intoxicated guest. Expect Transfer…Case Note by Dave Allen

The Big Repo Fail

See the COA Opinion of December 10, 2015 in Auto Liquidation Center, Inc. v. Chiqui Chaca. The defendant is a used car dealership that financed a purchase by plaintiff Jorge Chiqui Chaca. Within 90 days of the purchase about 40% of the purchase price had been paid. Though the customer did not owe any past-due installments, dealership’s sloppy records (on computer) indicated an arrearage. The vehicle was repossessed. The dealer declined to return the vehicle when shown that payments were current. The dealer also arranged for a false notarization on a Power of Attorney in order to sell the wrongly repossessed vehicle. It appears that the (former) office manager of the dealer testified for the plaintiff before a jury awarded damages (including exemplary damages for conversion) of $121,069.66. Affirmed on appeal but remanded for a determination of appellate attorney fees against the dealer. See general criticism here of the self-help repo…Case note by Dave Allen

The Rogue Guard and Respondeat Superior

The case is Knighten v. East Chicago Housing Authority, et al. decided December 8, 2015 in the SCOTSI (5/0). The trial court had awarded SJ in favor of the Agency which employed the Guard who argued with his Housing Authority resident girlfriend and then shot her while on duty for the Agency which had contracted with the Housing Authority. The conundrum in such respondeat superior cases is that, the more outrageous the employee conduct is, the less likely that it will be held to be within the scope of employment. The firearm belonged to the Guard. There was conflicting evidence as to whether the firearm was permitted or required for the job. I see the outcome here as inconsistent with Garnett v. Clark, 889 N.E.2d 281 (Ind. 2008)…Case Note by Dave Allen

When Is A Threat to Shoot Not Intimidation?

“If you come any closer, I’ll shoot.” This was the threat against police officers from an agitated resident in the doorway of his home as recited in the November 20, 2015 COA in Causey v. State. Remarkably, the COA panel unanimously reversed the intimidation conviction of the agitated resident. The context was police at the door following an anonymous report of a domestic dispute. The resident was alone in the house when police arrived. He assured them that there was no one inside requiring assistance, declined to allow police entry, and clearly demanded that the police leave his property. Instead, the police stayed and called for SWAT team reinforcements. The conviction was reversed because the threat to shoot was neither retaliation for a prior lawful act nor compulsion for the police to engage in conduct against their will. See IC 35-45-2-1 for the Intimidation Statute…Case Note by Dave Allen

The Collateral Source Statute and HIP Payments

The Opinion is from Patchett v. Lee decided in the COA November 19, 2015. Legal points of reference include the Collateral Source Statute at IC 34-44-1-2 and Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009). In Stanley the SCOTSI held that (in a personal injury trial) plaintiff’s original hospital bills and the discount obtained by plaintiff’s insurer were both admissible under the Collateral Source Statute. Here the insurance was the HIP plan sponsored by the State of Indiana. Moreover, the “discount” between the original hospital billing and the amount paid was nearly 86%. Citing IC 34-44-1-2(1)(c)(ii) the COA held that HIP collateral source payments (being paid by a state agency) are not admissible. Moreover, the COA concluded that the heavily discounted HIP net payment was not probative of the reasonable value of medical expenses.

I have to mention my angst over the underlying problem that hospital billing tends to be ridiculously high, particularly for the “self-paying” individuals who cannot negotiate a lower (reasonable) charge. In Allen v. Clarian Health Partners, 980 N.E.2d 306 (Ind. 2012) the SCOTSI unanimously held that a patient’s suit against a hospital disputing (allegedly) unreasonably high charges fails to state a cause of action. Wouldn’t it be nice to see some help from the General Assembly?…Case Note by Dave Allen

“Income” for Child Support Purposes and Dissipation Under a Prenup

Carmer v. Carmer is a most interesting 2-0-1 COA opinion of October 30, 2015 dealing with a structured settlement injury annuity as income for Child Support Guidelines purposes and the impact of dissipation on the property division provisions of a valid prenuptial agreement. Here the father of two minor children had a structured settlement annuity (from his prior estate) which was not “income” for federal income tax purposes. Trial court determined child support without reference to that revenue. Held: that annuity revenue should either be included in the support calculation or the trial court should “provide justification” for deviating from the Guidelines. The concurrence (in part) of Judge Robb recommends the discernment of “those portions” of the injury settlement meant to compensate for past or future loss of income.

The panel was unanimous in affirming the trial court’s consideration of Wife’s dissipation to reduce her presumptive property share under a prenuptial agreement. The theory was that a prenup that is silent as to dissipation is not erroneously modified by a trial court’s consideration of dissipation…Case note by Dave Allen

PC Affidavit “Boilerplate” Held Insufficient for Issuance of Blood Draw Warrant

Another rare case of an insufficient PC Affidavit for issuance of a search warrant. See Herron v. State decided October 14, 2015 in the COA. Context was a traffic stop and driver’s refusal of a “chemical test.” The officer used a form Affidavit for a blood draw warrant. However, the Affidavit (as filled out) omitted the circumstances of erratic or unlawful driving that justified the stop and the circumstances causing the officer to believe that his suspect was the vehicle’s driver. Nonetheless: a blood draw warrant was issued; the driver was charged; and the trial court overruled the motion to suppress but certified his order for interlocutory appeal. Held: the use of “boilerplate” language in a warrant affidavit is valid “as long as the affidavit contains sufficient facts specific to the search at issue to establish probable cause…” The COA reverses…Case note by Dave Allen

CR 4(C) (Discharge for Delay) Takes a Beating in the COA

The case of Allen v. State was decided (2-1) in the COA on October 14, 2015. The defendant was charged with traffic-related offenses from two Class “A” misdemeanors to one Class “C” felony. Then there was an intervening “B” felony charge that resulted to a 10-year prison term while the traffic related cases remained pending. Prior to transport to a state facility the defendant appeared in the traffic-case trial court and gave notice of his “B” felony sentence. Oddly, the court reporter advised defense counsel that he would have to “file a transport order” for his client to be present at the scheduled bench trial. No transportation order was filed, the defendant did not appear for trial, and the trial court issued an arrest warrant for the defendant who was in DOC custody. The COA majority holds the defense (attorney and client) responsible for not tendering a transport order. No mention by the Majority of the State’s responsibility to bring a defendant to trial within one year pursuant to CR 4(C). Criticism: when the State has custody of a man, it is absurd to shift to the defense the responsibility of producing that man for trial. I agree mostly with the dissent of Judge Barnes…Case Note by Dave Allen.

Cold Case DNA, Due Diligence, & Limitations

Here’s the opinion you need to cite the next time you’re accused of not exercising due diligence. The case is Quinn v. State decided October 8, 2015 in the COA. Mr. Quinn was convicted of rape, child molesting, and criminal confinement committed (in a single episode) more than 20 years before he was charged. As for the “B” felony child molesting and “B” felony criminal confinement, there were (period of) limitations issues. Quinn was identified more than 20 years after his crime through a DNA profile gleaned from long ignored evidence stored in the Indiana State Police Lab. When finally developed, the DNA profile matched Quinn’s CODIS system DNA profile.

The five-year limitations period for a “B” felony under IC 35-41-4-2 (2009) was subject to an exception for prosecutions filed later than five years (from the crime date) but within a year of the discovery of “evidence sufficient to charge” through DNA analysis. This exception was, in turn, limited to one year after the state could have discovered “evidence sufficient to charge” through DNA analysis by the exercise of due diligence.

Here Quinn had been charged within a year of the DNA match. The question was whether the DNA match could or would have been discovered earlier by way of exercise of due diligence. The State Police Lab had possession of its trace evidence since 1988 (prior to modern DNA analysis). The state had collected (for other investigations) buccal swabs from Quinn in 2001 and 2003. Indiana began submitting DNA profiles to CODIS in 2000. Then in 2012 there came the DNA match. The holding against Quinn on the limitations issue is that doing nothing for twelve years after the State Police Lab had begun doing DNA analysis is still due diligence if you happen to be the State Police Lab and if the guy complaining happens to be a brutal child molester.

There was evidence here of a huge backlog of unanalyzed cold case DNA trace evidence at the State Police Lab. There was no evidence of any definable program to eliminate or reduce that backlog by testing the samples and checking for matches. Rather, the State Police Lab made no effort to test a sample until there was a law enforcement request. In every other context I have found, “due diligence” requires some positive effort and some concern for time. Those principles stand abandoned by the COA in Quinn…Case note by Dave Allen

Privacy and Paranoia

The 2-0-1 COA decision came October 2, 2015 in Robbins v. Trustees of Indiana University, a case similar to Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind.Ct.App. 2014) Reh. at 25 N.E.3d 748 but with an opposite outcome as to the essential issue of vicarious employer liability for an employee’s mishandling of confidential medical information. In Robbins a newly hired LPN was granted access to a large patient database and used it to obtain records of a romantic rival and the rival’s children, which records were than posted on an internet blog. You will find in Robbins a useful definition of “joint venture” and the standard for employer negligent hiring/retention liability when an employee inflicts harm by way of acts outside the scope of employment. Still, the two most interesting aspects of the case are (1) the handling of the respondeat superior claim (in favor of employer) and (2) the discussion of whether “public disclosure of private facts” is even a recognized tort in Indiana. Hope for Transfer. While I would not impose strict liability on medical service providers for the unauthorized disclosure of patient information, it seems (to me) that there should be some enhanced duty of care that is not met by collecting each employee’s promise to refrain from misuse of access to huge databases. If Robbins is good law, then medical service providers are immune when their wayward employees predictably abuse the trust of access to confidential information…Case note by Dave Allen

Sixth Amendment Outrage Fizzles in the COA

See the September 30, 2015 3-0 Opinion of the COA in Larkin v. State. LaPorte County suspect’s wife was found shot to death. He agreed to talk to investigators if charged with voluntary manslaughter rather than murder. The suspect, his attorneys, an investigator, the County Prosecutor, and the Chief Deputy Prosecutor were present during the videotaped interview. During a break in the interview the suspect and his attorneys had what they thought was a private conversation, except that the video recorder was still operating. As expected, the suspect was charged with voluntary manslaughter. A transcriptionist notified the Chief Deputy Prosecutor of the privileged content of the videotape, but it appears that there was no immediate notice to the defense. The Chief Deputy Prosecutor later viewed the privileged portion of the tape. After receiving a copy of the tape by way of pretrial discovery, the defense filed unsuccessful motions to dismiss and to disqualify the LaPorte County Prosecutor and all his deputies. There was a successful motion to exclude the privileged conversation from evidence. In denying the defense motion to disqualify the entire County Prosecutor’s office, the trial court accepted the prosecution’s claim that it learned nothing new from the privileged tape footage (no harm/no foul). The suspect was, after all, providing a statement relative to the shooting death of his wife.

The COA Opinion reminds us that prosecutorial disqualification flows downhill (from an elected Prosecutor to his deputies) but not uphill (from a deputy to the elected Prosecutor). Here the County Prosecutor lost an election and was no longer available for disqualification. The COA declined to rule on the issue of whether the Chief Deputy Prosecutor (who knowingly viewed the privileged footage) should be disqualified, to the end that this interlocutory appeal was dismissed as moot. Criminal defense lawyers should be left feeling paranoid and angry. I looked and found no pending disciplinary complaint from the prosecutorial misconduct in this case…Case note by Dave Allen.

Addendum. I have read a news account that John Larkin has brought a civil suit against Chief Deputy Prosecutor Robert Neary and others. In a similar case the same Robert Neary and some police officers were said to have eavesdropped (from an adjacent space) on an attorney/client discussion in a “private” room at a police building. Robert Neary was “cleared” of criminal wrongdoing by a special prosecutor in that case of murder suspect Brian J. Taylor. See the COA 2-1 decision of June 10, 2015 affirming the trial court’s pretrial sanctions entered after the police officers “took the 5th.” The SCOTSI has accepted Transfer in the Taylor case. According to the online Roll of Attorneys Robert Neary is still with the LaPorte County Prosecutor’s Office. How can this be?

When “Yes” Means “No” and When a Holding is Not a Holding

This 1/1/1 decision in Burnell v. State was handed down September 24, 2015 by the COA. Following a traffic stop and failed field sobriety and PBT testing, a driver was asked whether she would take a “chemical” test. Though she responded in the affirmative, she also wanted to first call her police officer uncle. At one point she took a step away from the officer. The trial court agreed with the officer that the driver refused a chemical test, and that was the issue on appeal. The Opinion of the Court (Pyle, Judge) claimed to hold (on first impression) that “any answer short of an unqualified, unequivocal assent…constitutes a refusal.” The “holding” was supported only by the Judge who wrote it. So what is the legal standard on refusals? Hope for Transfer…Case note by Dave Allen

Public Policy vs. Contractual Freedom in Auto Liability Insurance

The case is Founders Insurance Co. v. May decided September 18, 2015 in the COA by a split (2/1) vote. A vehicle owner allowed his unlicensed girlfriend to drive the vehicle on occasion, but not on the day that she drove and injured a bicyclist who later died. The bicyclist owned no automobile and lacked uninsured motorist coverage. Owner’s liability policy excluded coverage during the unauthorized use of the vehicle and during use (regardless of consent) by most unlicensed drivers. Founders sued the bicyclist’s estate and others for declaratory judgment as to coverage/duty to defend and appealed trial court’s denial of SJ as to the estate. Reversed (2/1). Both majority and dissenting opinions cite Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind. 1997). Look for Transfer.

In terms of public policy limits to auto liability policy exclusions, I tend to agree with the exclusion for a vehicle driven without the owner’s consent. I would deem invalid any exclusion based on an undisclosed loss of a bailee’s driving privileges when there was no actual notice to the bailor/owner. In the latter case (as opposed to the former) the bailor/owner would have civil liability for damages caused by the unlicensed bailee if the entrustment was determined to be negligent. Wouldn’t it be nice for the General Assembly to take charge?…Case note by Dave Allen

Dependent Health Insurance Costs in a Child Support Worksheet

The case is Mitten v. Mitten decided September 14, 2015 in the COA. There a divorced father appealed portions of the trial court’s judgment. This Note pertains solely to his complaint that too high a sum was included in the CSW for his child’s health insurance costs paid by the (custodial) mother. Father complained that the sum of $88.52 per week was unreasonably high. Given the (apparently) higher income of the father, his child support obligation included most of the weekly health insurance costs paid initially by the mother. See Guideline 7 defining “reasonable cost” as anything less than 5% of the gross income of the parent ordered to provide medical support and possibly anything less than 50% of that parent’s gross income. This rule is flawed well beyond that portion dictated by the federal mandate. To begin, the 50% hard cap is insanely high (for the average case). Second, the 5% soft cap may be too low where (as here) the premiums are paid initially by a custodial parent whose income is substantially less than that of the noncustodial parent. In such a case where mother elects to pay a high health insurance premium from modest income, father’s higher income merits consideration in the “reasonableness” calculation. Though the cost of dependent health insurance through the ACA exchanges was not mentioned here in Mitten, I favor consideration of comparative costs in the determination of the reasonableness of the cost of a particular plan…Case note by Dave Allen


I ran two CSW’s for comparison. Each featured one child, no overnites, no sitter expense, (custodial) mother’s income of $600.00, and father’s income of $1,500.00. The swing factor was a dependent health insurance cost of $1.00/week versus a cost of $100.00/week paid by mother. The difference in father’s support obligation was $70.00, demonstrating a cost-shifting of the insurance expense from mother to father.

SCOTSI On Home Rule

For those attorneys representing local government there was a treat of sorts from the SCOTSI on September 1, 2015 in Anderson v. Gaudin, the most recent chapter of an internal fight in Brown County over its Fire Protection District. Though the vote was split 3-1-1, it seems that four justices took a liberal view of “home rule” powers. The application here of “home rule” policies was whether the County Board of Commissioners (after having created a county-wide Fire Protection District) could thereafter amend its own ordinance to emasculate (but not quite dissolve) that Fire Protection District. In the contextual background was the Fire Protection Act and its petition-based procedure for dissolving a Fire Protection District. While the COA’s (vacated) opinion at 24 N.E.3d 479 cited the local precedent of Town of Cedar Lake v. Alessia, 985 N.E.2d 55 (App. 2013) the SCOTSI decision on Transfer did not mention Alessia, even though its holding seems consistent with the SCOTSI holding in Gaudin…Case Note by Dave Allen.

An Insufficient Rule to Show Cause

I know there’s an old appellate case holding that a Rule to Show Cause (for indirect civil contempt) may incorporate the factual allegations of an attached Petition. My (rare) Rules to Show Cause typically include “See attached Petition” for the particulars. On August 31, 2015 in Stanke v. Swickard the COA reversed contempt findings (re visitation and support) against a father for the insufficiency of the Rule to Show Cause. See IC 34-47-3-5 for the general Rule to Show Cause requirements and IC 31-16-12-6 for the requirements for child support cases. The latter statute requires that the Rule to Show Cause include (among other circumstances) a history of support payments along with the date of the Order and a statement of the arrearage. I cannot remember ever having read a Rule to Show Cause for child support (including my own) which included a “history” of child support payments. We’ve all been warned…Case Note by Dave Allen

Tough Trial Rule Decision

It makes sense for any successful Appellant to move for a change of judge after reversal and remand. In Lanni v. NCAA decided August 26, 2015 in the COA there had been an earlier reversal/remand for the trial court’s erroneous grant of summary judgment (for one of three defendants) while discovery was ongoing. See Lanni v. NCAA, 989 N.E.2d 791 (Ind.Ct.App. 2013). The plaintiff/appellant moved for a change of judge per TR 76(C)(3). The trial court denied the motion and subsequently entered summary judgment for two of the three defendants. On appeal (again) the COA held there was no error in the denial in that there had been no “trial” preceding the earlier appeal. Analysis: While the COA holding is certainly defensible on a narrow reading of TR 76(C)(3) it exposes a gaping deficiency in this Rule (promulgated by the Indiana Supreme Court) and deprives many successful Appellants of a change of judge following an erroneous judicial ruling and an appellate reversal. Let’s hope that the SCOTSI has a fresh look at TR 76(C)(3)…Case Note by Dave Allen

Epilogue: In keeping with my view that the SCOTSI should take a fresh look at TR 76(C)(3), I have sent a Proposed Amendment to the Indiana Supreme Court Division of State Court Administration for presentation to the Committee on Rules of Practice and Procedure. Here is the proposal in the required lined out/underlined format.

TR 76(C)

(3) if the trial court or a court on appeal orders a new trial, or if a court on appeal otherwise remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial,…there may be further proceedings other than the mere entry of a judgment or order expressly required by the court on appeal, the parties thereto shall have ten [10] days from the date the order of the trial court is entered or the order of the court on appeal is certified;

The goal of the Proposed Amendment is to assure litigants and lawyers of judicial impartiality on remand, whether or not the successful appeal was preceded by a trial.

Tier I Railroad Retirement

“Tier I” Railroad Retirement benefits are analogous to Social Security Retirement Benefits while “Tier II” is analogous to a pension. The latter may be divisible in a divorce case as a marital asset while the former is neither property nor a marital asset. This black letter law was lost on the Marion Superior Court in Harris v. Harris decided August 24, 2015 in the COA. There the Railroad employee husband was erroneously ordered to pay wife (by check upon receipt) one-half his future Tier I payments. The COA rightly reversed, citing well-settled caselaw. The interesting aspect of the case (other than the inexplicable clear error from an experienced magistrate) is the admonition that husband’s future Tier I benefits may not be considered by the trial court as grounds for deviating from the “50/50” presumption.

Practice Tip: Check the Railroad Retirement Board online for the form of QDRO it requires for division of Tier II benefits…Case Note by Dave Allen.

TR 60(B)(1) and (8) in Foreclosure Priority Fights

(Caveat: this case note begins and ends with editorial opinion.)

There is a disturbing practice evident in many Foreclosure Complaints of a junior lienholder plaintiff demanding priority over obviously senior liens. The absence of judicial condemnation of this practice is equally unsettling. Here junior lienholder Car-X sued for foreclosure. The true senior lienholder, Huntington National Bank, mishandled or ignored its service and was defaulted. The default declared the (false) priority of the Car-X lien over that of mortgage lender Huntington National Bank. Naturally, the Bank filed a TR 60(B) Motion for relief from the default. The trial court found neglect, but not “excusable” neglect per TR 60(B)(1) and denied relief. A divided COA panel held that the trial court had abused its discretion in denying the motion for relief. See COA’s (vacated) opinion at 22 N.E.3d 687 (Ind.Ct.App. 2014). On Transfer the SCOTSI held (4-0-1) with Justice Rucker concurring only in result, that the trial court had not abused its discretion in denying TR 60(B)(1) relief. But while the COA had not mentioned TR 60(B)(8) and its “any [other] reason” basis for relief, the SCOTSI remanded to the trial court to “reevaluate” the request for relief under TR 60(B)(8). The last two paragraphs of Justice David’s Opinion (preceding the Conclusion) teem with quotable dicta fit for any motion for TR 60(B) relief. This SCOTSI opinion was handed down August 21, 2015 in The Huntington National Bank v. Car-X Assoc. Corp.

The underlying, unaddressed problem here is the deplorable practice of a demand for relief to which a plaintiff is clearly not entitled (on the face of the Complaint) and the related use of procedural default to obtain such relief. Another example of this practice is the August 18, 2015 NFP COA decision in Horizon Bank v. Centier Bank. There the unanimous COA panel awarded TR 60(B)(1) relief to a neglectful, defaulted, (former) senior lienholder in another foreclosure action by a junior lienholder with aspirations toward higher priority…Case note by Dave Allen.

Weighing the Evidence in Child Custody Appeals

Family Law practitioners should have a look at Marriage of Steele-Giri and Steele decided by a divided Indiana Court of Appeals panel on July 29, 2015.  The trial court (Hon. Elizabeth F. Tavitas of the Lake Superior Court Room Three) had denied a divorced mother’s petition to modify the physical custody of her daughter.  There was some evidence that the 10-year-old daughter was unhappy living with her Father, Father’s girlfriend, and girlfriend’s two children.  Mother had married a doctor, moved to Oregon, and gave birth to the daughter’s half-sibling.  While it seems that there was evidence of changed circumstances and best interests to support an award of custody to Mother, the trial court ruled against modification.

Mother’s appeal of a “negative judgment” defied the odds (at least for now) and prevailed.  Not only did the COA find errors in several of the trial court’s sua sponte findings (so as to warrant a remand) the COA majority held that the evidence (per the cold transcript) compelled an award of physical custody to Mother.  Best v. Best, 941 N.E.2d 499 (Ind. 2011) is the Opinion wherein the SCOTSI unanimously shut (slammed) the door on the appellant reweighing of evidence in custody disputes.  Judge Barnes, dissenting in Steele, cited Best while the majority did not.  While it is easy to applaud Mother’s victory here, there is the appearance that the COA has gone rogue.  Look for Transfer…Case note by Dave Allen.

Contagion of Child Custody Reversals?

I commented recently on the remarkable COA reversal in Marriage of Steele-Giri and Steele, an appeal from the Lake Superior Court decided July 27, 2015. Now a separate COA panel has issued a reversal in a (procedurally) similar case (from the Marion Superior Court) wherein a petition to modify physical custody was denied by the trial court (with findings), and then the “negative judgment” was successfully appealed. In Marriage of Maddux decided August 11, 2015 the appellant/moving party below was the Father. A custody evaluator and GAL both recommended a change of physical custody in favor of Father. The trial court found: that Mother regularly denied parenting time without cause; that Mother made repeated “unsubstantiated” allegations of abuse against Father; that Mother caused “irreparable” harm to the children’s relationship with Father; that Mother was indifferent to the suicidal thoughts of one child; that Mother was in contempt for denial of parenting time; and that there had been substantial changes of circumstances. Still, the trial court found that Father failed to prove that custody modification was in the children’s best interests. The COA panel treated the finding of “failure to prove” as a conclusion of law subject to de novo review, thus avoiding the thorny issue of challenging the factual findings of the trial court. The Maddux panel thus accepted the trial court’s factual findings while rejecting (rightly, I think) its conclusion…Case Note by Dave Allen

Lack of Probable Cause for Search Warrant?

The case is Buford v. State decided July 24, 2015 in the Indiana Court of Appeals.  The COA reversed convictions for dealing and other crimes on grounds that trial court evidence resulting from a search warrant should have been suppressed for a lack of probable cause (in the Affidavit) to support the warrant.  The particular problem with the Affidavit was the unnecessary inclusion of uncorroborated hearsay (from an anonymous tip) claiming that drugs were being dealt from a residence.

Police took note of the tip and learned that two residents at the suspect address had warrants.  Officers smelled burnt marijuana from outside the house and, after entering to execute the warrants, saw apparent marijuana residue on a table.  The officers then assembled an Affidavit for Search Warrant citing the anonymous tip and their own perceptions from within and without the residence.  Being uncorroborated, the hearsay should have been omitted.  Remarkably, the COA declined to discuss whether the nonhearsay evidence in the Affidavit amounted to probable cause.  There is no mention in this case of “Constitution” (State or Federal).  There is prominent mention of IC 35-33-5-2(b) relative to the requisite corroboration of hearsay in a warrant Affidavit.  Don’t be surprised if the AG requests Transfer…Case Note by Dave Allen