Bowles v. State

867 N.E.2d 242

Darius V. BOWLES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0605-CR-238.

Court of Appeals of Indiana.

May 31, 2007.

David Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Darius Bowles appeals his convictions for Class A felony dealing in cocaine, Class C felony possession of cocaine, Class D felony possession of a controlled substance and Class A misdemeanor possession of marijuana. We affirm.

Issue

The sole restated issue before us is whether the trial court properly admitted evidence recovered from Bowles' residence pursuant to a search warrant, which was issued on the basis of a warrantless search of Bowles' trash.

Facts

In June 2002, a confidential informant ("CI") told Sergeant Garth Schwomeyer of the Marion County Sheriff's Department that he had purchased cocaine from Bowles at Bowles's residence. After receiving this information, police planned to attempt a controlled buy from Bowles, but it was cancelled. No controlled buy from Bowles ever took place. Additionally, Sergeant Schwomeyer conducted surveillance of Bowles's residence after receiving the CI's tip but did not make a note of observing any evidence consistent with drug dealing, such as excessive traffic. The CI had no further contact with Sergeant Schwomeyer after the fall of 2002.

On March 4, 2003, Sergeant Schwomeyer collected and searched the trash set out for delivery outside Bowles's residence. Inside the trash bags were mail and a receipt with Bowles's name on them, marijuana seeds and stems, and approximately twenty-five plastic baggies that contained cocaine residue. On the basis of the evidence collected from the trash pull, Sergeant Schwomeyer sought and obtained a search warrant for Bowles's residence. Inside, officers found quantities of cocaine, marijuana, alprazolam, over $3000 in cash, and two firearms.

The State charged Bowles with Class A felony dealing in cocaine, Class C felony possession of cocaine, Class C felony possession of cocaine and a firearm, Class D felony possession of a controlled substance, and Class A misdemeanor possession of marijuana. Bowles moved to suppress the evidence seized from his residence on the basis that the trash pull that led to the warrant's issuance violated the Indiana Constitution. The trial court denied the motion to suppress. It certified its ruling for interlocutory appeal and this court accepted jurisdiction.

On January 14, 2005, this court affirmed the denial of Bowles's motion to suppress based on the standard of reasonableness for trash pulls under the Indiana Constitution that was delineated in Moran v. State, 644 N.E.2d 536 (Ind.1994). Bowles v. State, 820 N.E.2d 739 (Ind.Ct.App.2005) ("Bowles I"). Bowles filed a petition to transfer. On March 24, 2005, while the petition was still pending, our supreme court issued its decision in Litchfield v. State, 824 N.E.2d 356 (Ind.2005). There, for the first time, our supreme court held that, under the Indiana Constitution, a warrantless trash pull and search was reasonable only if police first had reasonable suspicion that the subject of the search was engaged in illegal activity. See id. at 364. On March 31, 2005, one week after deciding Litchfield, our supreme court voted unanimously to deny transfer in Bowles I.

On remand to the trial court, Bowles again sought to suppress the evidence seized from his residence, based on the authority of Litchfield. The trial court denied the renewed motion to suppress for three reasons: (1) the trash pull and search complied with Litchfield; (2) Sergeant Schwomeyer acted in good faith in conducting the trash pull; and (3) the doctrine of law of the case prevented the trial court from suppressing the challenged evidence after this court affirmed its previous denial of the motion to suppress. On March 8, 2006, following a bench trial, the trial court convicted Bowles of Class A felony dealing in cocaine, Class C felony possession of cocaine, Class D felony possession of a controlled substance, and Class A misdemeanor possession of marijuana. Bowles now appeals.

Analysis

The first issue we address in this appeal is whether our reconsideration of the legality of the trash pull and search ought to be barred by the law of the case doctrine, given our consideration and resolution of the issue against Bowles in Bowles I. "The doctrine of the law of the case is a discretionary tool by which appellate courts decline to revisit legal issues already determined on appeal in the same case and on substantially the same facts." Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000). The purpose of the doctrine is to promote finality and judicial economy. Id. Unlike the rule of res judicata, however, the law of the case is not a uniform rule of law, but only a discretionary rule of practice. State v. Lewis, 543 N.E.2d 1116, 1118 (Ind.1989). The law of the case doctrine does not prevent us from revisiting a prior decision of ours in all circumstances, although as a rule we should be loathe to do so in the absence of extraordinary circumstances. Id.

That the trash pull complied with Moran — i.e. that the manner in which it was done was reasonable — undisputedly is the law of the case. We have no inclination to revisit that issue, having thoroughly addressed it and there being no new facts relevant to that issue. Nor does Bowles ask that we revisit that issue. Whether we can or should revisit the legality of the trash pull under the Litchfield reasonable suspicion standard is a more difficult question. Litchfield was decided before Bowles's petition to transfer in Bowles I was denied. In theory, our supreme court could have granted transfer in Bowles I either to address Litchfield's applicability, or to remand to this court for reconsideration in light of Litchfield. That the court did not do so, however, is no reflection on whether it believed either the result or analysis in Bowles I was correct, with or without Litchfield. A denial of transfer has no legal meaning other than to terminate the litigation in that particular appeal; it should not be construed necessarily as a ruling on the merits of a decision by this court. See Ind. Appellate Rule 58(B); Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 481 n. 7 (Ind.1999), cert. denied, 528 U.S. 1005, 120 S.Ct. 499, 145 L.Ed.2d 385.

Given the timing of this case in relation to the new rule of law announced in Litchfield, and the fact that no appellate court has addressed Litchfield's applicability here, we choose to exercise our discretion not to adhere formalistically to the law of the case doctrine, and we will analyze this case under the Litchfield rule. Additionally, new rules of criminal procedure are supposed to apply to all cases not yet final when the new rule was announced. Smylie v. State, 823 N.E.2d 679, 687 (Ind.2005), cert. denied. Bowles's case was not final when Litchfield was decided, and still is not final.

Under Moran, the sole limitation our supreme court placed on trash pulls under Article 1, Section 11 of the Indiana Constitution was that police conduct themselves in the same manner as would be appropriate for those whose duty it is to pick up trash for collection — i.e., police may not trespass onto property to retrieve garbage containers or draw undue attention to themselves or cause a disturbance. Moran, 644 N.E.2d at 541. In Litchfield, our supreme court retained this reasonableness requirement regarding how a trash pull must be accomplished by stating, "trash must be retrieved in substantially the same manner as the trash collector would take it." Litchfield, 824 N.E.2d at 363. Going beyond Moran, however, our supreme court added a new restriction on when police may conduct trash pulls under the Indiana Constitution: "We believe a requirement of articulable individualized suspicion, essentially the same as is required for a `Terry stop' of an automobile, imposes the appropriate balance between the privacy interests of citizens and the needs of law enforcement." Id. at 364.

Under Litchfield, then, Sergeant Schwomeyer was required to possess reasonable suspicion that Bowles was engaged in illegal activity before he could pull Bowles's trash and search for evidence. The State argues on appeal that the tip of the confidential informant in June 2002 that he had purchased cocaine from Bowles created such reasonable suspicion to search Bowles's trash in March 2003. We disagree.

A tip from a known CI can, in the proper case, provide reasonable suspicion of criminal activity to justify a Terry stop or seizure, but it does not automatically do so in every case. See Edwards v. State, 832 N.E.2d 1072, 1075-76 (Ind.Ct. App.2005) (citing Johnson v. State, 659 N.E.2d 116 (Ind.1996)). Regarding reasonable suspicion based on a CI's tip, the Supreme Court has explained:

Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.

Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). The reliability of the tip, for purposes of reasonable suspicion, may be established if the CI has provided reliable information to the police in the past. Id. at 146, 92 S.Ct. at 1923. Also, a tip where the veracity of the tipster is unknown may still establish reasonable suspicion, under a "totality of the circumstances" test, if independent police investigation corroborates at least...