                                                                             Jan 28 2015, 6:15 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Valerie K. Boots                                           Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Cynthia L. Ploughe
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

N.S.,                                                      January 28, 2015

Appellant-Respondent,                                      Court of Appeals Cause No.
                                                           49A05-1407-JV-338
        v.                                                 Appeal from the Marion Superior
                                                           Court
                                                           The Honorable Geoffrey Gaither
State of Indiana,                                          Cause No. 49D09-1405-JD-1197
Appellee-Petitioner.




Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015                      Page 1 of 8
                                             Case Summary
[1]   N.S. was adjudicated a juvenile delinquent for having committed acts that

      would be Dangerous Possession of a Firearm1 and Possession of Marijuana,2 as

      Class A misdemeanors, if committed by an adult. He appeals the adjudication,

      presenting the sole issue of whether the juvenile court, having declared a search

      and seizure of N.S.’s property illegal, abused its discretion by admitting

      evidence that was a product of the illegal search. We reverse.



                               Facts and Procedural History
[2]   On May 11, 2014, Officer Brian Erdmann of the Clermont Police Department

      received a report of a stolen vehicle. Approximately thirty minutes after the

      report, Officer Erdmann located the stolen vehicle at a gas station. D.M., the

      driver, and N.S., the back seat passenger, were placed under arrest.


[3]   Officer Erdmann expected that the vehicle was “going to be impounded” and

      he initiated an inventory search. (Tr. 10.) According to Officer Erdmann, one

      of the reasons was “first of all you never know [when] there could be any illegal

      contraband.” (Tr. 13.) A backpack was found in the back seat. A search of its

      contents yielded a firearm and marijuana. The vehicle owner appeared, and the




      1
        Ind. Code § 35-47-10-5. The offense may now be a Class A misdemeanor, a Level 5 felony, or a Level 3
      felony. We refer to the version of the statute in effect at the time of N.S.’s alleged conduct.
      2
          I.C. § 35-48-4-11. The offense may now be a Class A or B misdemeanor or a Level 6 felony.


      Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015                      Page 2 of 8
      vehicle was released to him without completion of a formal inventory search or

      impoundment.


[4]   The State alleged N.S. to be delinquent and a denial hearing was conducted on

      June 5 and June 9, 2014. N.S. challenged the admission into evidence of the

      firearm, marijuana, and any derivative testimony, on grounds that the search

      violated his Fourth Amendment and Indiana constitutional rights. The juvenile

      court initially granted N.S.’s motion to suppress, upon concluding that the

      backpack search was illegal. However, the juvenile court permitted D.M. to

      testify concerning N.S.’s possession of contraband and admitted the contraband

      into evidence during D.M.’s testimony, over N.S.’s continuing objection.


[5]   At the conclusion of the denial hearing, N.S. was adjudicated a delinquent.

      Prior to the dispositional hearing, N.S. filed a motion for reconsideration of his

      motion to suppress. The State did not challenge the juvenile court’s initial

      determination that the backpack search was illegal. At the dispositional

      hearing, the juvenile court denied N.S.’s motion for reconsideration and

      released N.S. to the custody of his father with terms and conditions of

      probation. This appeal ensued.



                                  Discussion and Decision
[6]   A juvenile court has discretion regarding the admission of evidence, and its

      decisions are reviewed only for an abuse of that discretion. C.L.M. v. State, 874

      N.E.2d 386, 389 (Ind. Ct. App. 2007). We reverse only when admission is


      Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015   Page 3 of 8
      clearly against the logic and effect of the facts and circumstances and the error

      affects a party’s substantial rights. Clark v. State, 994 N.E.2d 252, 260 (Ind.

      2013).


[7]   “Generally speaking, evidence obtained pursuant to an unlawful seizure must

      be excluded under the fruit of the poisonous tree doctrine.” Id. at 266. This

      extension of the exclusionary rule bars evidence directly obtained via an illegal

      search as well as evidence derivatively gained as a result of information learned

      or leads obtained during that same search or seizure. Id. The question to be

      addressed is whether “the derivative evidence ‘has been come at by exploitation

      of that illegality or instead by means sufficiently distinguishable to be purged of

      the primary taint.’” Id. (quoting Wong Sun v. U.S., 371 U.S. 471, 488 (1963)).

      Courts generally consider the time elapsed between the illegality and the

      acquisition of the evidence, the presence of intervening circumstances, and the

      purpose and flagrancy of the official misconduct. Id.


[8]   The defendant must prove the Fourth Amendment violation and that the

      evidence was a fruit of that search. Pirtle v. State, 323 N.E.2d 634, 642 (Ind.

      1975). Then, the State must show that the evidence may nevertheless be

      admitted because it had an independent source. Id. “If the road from the illegal

      search to the testimony, even if long, was straight, then the testimony was the

      product of the illegal search.” Id. However, if the testimony is inadmissible,

      the facts within the testimony may be admissible if there was an independent

      source of the facts. Id. For example, the State may present testimony from

      witnesses whose testimony is not a product of the search. Id.

      Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015   Page 4 of 8
[9]    On the record before us, it is clear that the State obtained the physical evidence

       – the firearm and the marijuana – as a direct consequence of the illegal search of

       the backpack. These items were, consistent with our Indiana Supreme Court’s

       guidance in Pirtle, inadmissible. The State does not contend that the physical

       items were recovered from an independent source, but rather argues that

       D.M.’s testimony was admissible and any error in the admission of the physical

       exhibits was harmless.


[10]   “Errors in the admission or exclusion of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party.” Fleener v.

       State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citing Ind. Trial Rule 61). When

       determining whether an error is harmless, our review is de novo, and the error

       must be harmless beyond a reasonable doubt. C.L.M., 874 N.E.2d at 391.


[11]   The State called D.M. as its sole witness. D.M. testified that, on the evening of

       May 11, 2014, N.S. was a visitor at D.M.’s home and displayed his book bag

       and its contents, including marijuana. D.M. also testified that, later that

       evening, he and N.S. broke into vehicles and N.S. stole a pistol from one of the

       vandalized vehicles. He identified certain of the State’s exhibits as the

       marijuana and pistol N.S. had secreted in his backpack. According to D.M., he

       had not spoken with police before the denial hearing, but had “worked out a

       plea agreement to misdemeanor conversion.” (Tr. 61.)


[12]   The State contends that D.M.’s knowledge of contraband was gained

       independent of the backpack search because he made personal observations that


       Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015   Page 5 of 8
       preceded the search. N.S. claims that D.M.’s testimony was nonetheless a

       product of the illegal search because D.M. would never have been questioned

       about the items in N.S.’s backpack absent their discovery. In short, the State

       focuses upon D.M. having independent knowledge of the existence of the

       contraband and N.S. focuses upon whether the police – independent of the

       search – attained knowledge of the contraband. The latter is consistent with our

       Indiana Supreme Court precedent.


[13]   In Clark, the defendant had been detained during investigation of a civil

       complaint regarding occupancy of a storage unit. A search of Clark’s vehicle

       and bag yielded methamphetamine and manufacturing equipment. 994 N.E.2d

       at 258. Clark appealed his criminal convictions, arguing that his motion to

       suppress should have been granted, and, on transfer, the Indiana Supreme

       Court determined that the initial stop and warrantless search violated Clark’s

       constitutional rights. Id. at 261.


[14]   Examining Clark’s confession and the seized evidence in light of the fruit of the

       poisonous tree doctrine, the Court focused upon when officers gained

       knowledge of the contraband and considered whether an “independent source

       pointed the officers in the direction of Clark’s vehicle.” Id. at 272. The Court

       observed, “[n]othing indicates that the officers learned this, for example, from

       Collins, Eller, or Dunlap.” Id. Accordingly, the Court suggested that had one

       of Clark’s friends or the storage facility owner provided information leading to




       Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015   Page 6 of 8
       the contraband, he would have been considered to be an independent source.3

       In this hypothetical scenario, the provision of information such that the officers

       learned of the contraband would have necessarily preceded the search.


[15]   We glean from Clark that while a companion may possess independent

       knowledge, he or she is an “independent source” only if the illegal search or

       seizure did not produce a “lead” to law enforcement. Id. at 266. Our Indiana

       Supreme Court has long ago pronounced that evidence “obtained by the

       exploitation of constitutionally prohibited police conduct” is forbidden. Pirtle,

       323 N.E.2d at 642. As such, an independent source is one whose cooperation

       is not a product of coercive circumstances attributable to the illegal search or

       seizure. The Pirtle Court noted:

                [e]vidence of facts, forces and pressures arising from the search which
                naturally would tend to convince the witnesses to testify adversely to
                appellant is important. Evidence that the witnesses knew that the
                police had found the victim’s wallet, that the witnesses made
                incriminating statements at the scene, that the witnesses confessed
                immediately, or that they made formal statements implicating
                themselves soon after their arrest at the apartment would attest to an
                exploitation of the original illegality. Wong Sun, 371 U.S. at 488.


[16]   Id. at 641.




       3
         The Court also noted that there was no indication that the officers were actively searching for Clark or for a
       rolling meth lab, such that the inevitable discovery exception might have application in Fourth Amendment
       analysis. Id. Under the Fourth Amendment, the inevitable discovery exception to the exclusionary rule can
       permit the introduction of evidence that eventually would have been located even in the absence of error.
       Gyamfi v. State, 15 N.E.3d 1131, 1137 (Ind. Ct. App. 2014). However, the inevitable discovery rule has not
       been adopted as part of Indiana constitutional law. Id. at 1138.

       Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015                           Page 7 of 8
[17]   N.S. argues that D.M.’s own legal jeopardy allowed exploitation of the original

       illegality in this case. We agree, as no facts of record point to an intervening

       circumstance to clear the taint of the illegal search. D.M. did not, on his own

       initiative, direct officers to contraband. Rather, for a favorable plea bargain, he

       made an in-court identification of contraband he claimed to know that N.S. had

       possessed. D.M., who had been discovered driving the stolen vehicle,

       specifically acknowledged receiving a benefit in exchange for his testimony. At

       the same time, he denied that he had ever spoken with police officers regarding

       the contents of N.S.’s backpack prior to his testimony.


[18]   Both the physical exhibits and D.M.’s testimony were fruit of the illegal search.

       When “none of [the] evidence should have been admitted … the conviction

       cannot stand.” Clark, 994 N.E.2d at 273. Likewise, N.S.’s adjudication as a

       delinquent, resting upon inadmissible evidence, cannot stand.


[19]   Reversed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1407-JV-338 | January 28, 2015   Page 8 of 8
