Duane Jadrich v. State of Indiana

Dec 23 2013, 5:42 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN L. COOK GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DUANE JADRICH, )
)
Appellant-Defendant, )
)
vs. ) No. 32A04-1302-CR-67
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-1108-FD-684
DECEMBER 23, 2013
OPINION – FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY1
Hendricks County Sherriff’s Deputy Robert Butterfield, who was attempting to serve a
protective order, knocked on the front door of a residence on State Road 267. When he
received no response, Deputy Butterfield walked to the rear of the house, passing by signs
indicating that visitors were only to use the front door and through the closed gate of a chain-
link fence. Deputy Butterfield knocked on the back door and again received no response but,
when he took two steps off of the back patio, he noticed a “grow” inside a circle of firewood
and brush. Deputy Butterfield approached and observed what he believed to marijuana in the
circle and called Sherriff’s Sergeant Brett Clark.
Sergeant Clark arrived with Sherriff’s Detectives Henry Sadler and Matthew Wing.
Detective Sadler knocked on the front door, received no response, but noticed an open
window on the front of the house. When Detective Sadler knocked on the window, an
individual inside asked who it was. Appellant-Defendant Duane Jadrich and his wife opened
the front door, and Detective Sadler advised Jadrich that he wanted to speak with him about
the marijuana plants in the back yard. Eventually, Jadrich consented to a search of his
residence, which uncovered a smoking pipe containing marijuana residue. Six plants
recovered from the back yard tested positive for marijuana.
The State charged Jadrich with Class D felony marijuana possession and Class A
misdemeanor paraphernalia possession. Jadrich filed a motion to suppress the evidence
1
We heard oral argument in this case on November 19, 2013, at Lawrence North High School in
Indianapolis. We wish to extend our gratitude for the hospitality of the students, staff, and faculty of Lawrence
North and commend counsel for the high quality of their oral advocacy.
2
found at his residence. After trial on only a stipulation of facts with Appellee-Plaintiff the
State of Indiana, the trial court found Jadrich guilty as charged, entered judgment of
conviction for Class A misdemeanor marijuana possession and Class A misdemeanor
paraphernalia possession, and sentenced Jadrich to 365 days of incarceration with 363 days
suspended to probation. Jadrich contends that Deputy Butterfield conducted an
unconstitutional warrantless search of his property; that his consent to the search of his home
was invalid; and that police improperly sought his consent to search his home without
advising him that he had the right to consult with counsel, pursuant to Pirtle v. State, 263 Ind.
16, 323 N.E.2d 634 (1975).2 Concluding that Deputy Butterfield’s search violated the Fourth
Amendment to the United States Constitution, we reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY3
In the early morning hours of August 7, 2011, which was a Sunday, Deputy
Butterfield attempted to serve a protective order4 at 8055 North State Road 267 in
2
“Pirtle v. State … established that Article I, section 11 of the Indiana Constitution requires that a
person in custody explicitly waive the right to counsel before giving a valid consent to a search.” Clarke v.
State, 868 N.E.2d 1114, 1119 (Ind. 2007).
3
Although there was a pretrial suppression hearing, the parties’ “Revised Stipulated Facts” constitute
the entirety of the record on which Jadrich was convicted. Moreover, there is no indication that either party
incorporated the suppression record into the trial record. Both Jadrich and the State, however, rely on evidence
collected at the suppression hearing in generating their fact patterns and supporting their arguments. For
example, Jadrich argues that the protective order Deputy Butterfield was attempting to serve was stale, an
argument based on evidence from the suppression record that the person named in the protective order no
longer lived with Jadrich and that Jadrich had previously notified the sheriff’s department of that fact. Neither
party has filed a motion to strike or otherwise objected to the other’s use of evidence from the suppression
hearing. Under the circumstances, we shall treat the suppression record as effectively incorporated into the
trial record.
3
Brownsburg. A tree along the driveway to the property bore a sign that read, “please use
front door only!!!” Appellant’s App. p. 20. Deputy Butterfield approached the front door
and knocked several times with no response. Deputy Butterfield then walked to the back of
the residence. A garage door near the backyard area bore a sign that read, “no trespassing[.]”
Appellant’s App. p. 20. In order to reach the back door, Deputy Butterfield had to pass
through the closed gate of a chain-link fence, which gate bore signs that read “no
trespassing” and “please use front door only[.]” Appellant’s App. p. 19. A paved sidewalk
led from the fence gate to a back patio, which afforded access to the back door.
On his way to the back door, Deputy Butterfield noticed a circular pile of firewood in
the back yard that “seemed a little strange.” Appellant's App. p. 20. Deputy Butterfield
knocked on the back door several times, again receiving no response. As he was leaving,
Deputy Butterfield noticed a stack of brush leading from the firewood circle and, when he
took two steps off of the back patio, could see a “grow” inside the circle. Appellant’s App.
p. 20. Deputy Butterfield approached the circle and observed that it contained marijuana
plants. Deputy Butterfield called his supervisor, Sergeant Clark.
Sergeant Clark arrived at the residence with Detectives Sadler and Wing. Detective
Sadler knocked on the front door and announced himself but received no response. Detective
Sadler noticed an open window to the left of the front door, knocked on the window, and
4
Although the stipulated facts on which Jadrich’s convictions are based indicate only that Deputy
Butterworth was attempting to serve a “no contact order/protection order[,]” Appellant’s App. p. 20, the record
also indicates that the order was a “civil paper[.]” State’s Ex. Deposition of Brett Clark p. 4. Consequently,
we infer that Deputy Butterfield was attempting to serve a civil protective order obtained pursuant to the
Indiana Civil Protection Order Act. See Ind. Code ch. 34-26-5.
4
again announced himself. An individual responded, “who is it?”, and Jadrich and his wife,
the owners of the residence, opened the front door. Appellant’s App. p. 21. Detective Sadler
told Jadrich that he wished to speak with him about the marijuana plants in the backyard.
Jadrich invited Detective Sadler and the other officers into his residence. Jadrich consented
to a search of his home, which uncovered a smoking pipe with marijuana residue found on an
ottoman in the back living room. The plants from the circle were tested and found to be
marijuana with a total weight of 188.9 grams.
On August 9, 2011, the State charged Jadrich with Class D felony marijuana
possession and Class A misdemeanor paraphernalia possession. On February 29, 2012,
Jadrich filed a motion to suppress evidence. On March 23, 2012, the trial court held a
hearing on Jadrich’s suppression motion. On April 24, 2012, the trial court denied Jadrich’s
suppression motion. On January 18, 2013, a bench trial was conducted, and the parties
submitted “Revised Stipulated Facts.” The trial court found Jadrich guilty as charged,
entered judgment of conviction for marijuana possession as a Class A misdemeanor and
Class A misdemeanor paraphernalia possession, and sentenced Jadrich to 365 days of
incarceration with 363 suspended to probation.
DISCUSSION AND DECISION
Whether the Trial Court Abused its Discretion in Admitting
Evidence Found in Jadrich’s Back Yard and House
Although Jadrich frames the issue as a challenge to the denial of his pretrial motion to
suppress evidence, he actually appeals from the allegedly erroneous admission of evidence at
5
trial. The admissibility of evidence is within the sound discretion of the trial court. Curley v.
State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will only reverse a trial
court’s decision on the admissibility of evidence upon a showing of an abuse of that
discretion. Id. An abuse of discretion may occur if the trial court’s decision is clearly against
the logic and effect of the facts and circumstances before the court, or if the court has
misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s ruling if it is
sustainable on any legal basis in the record, even though it was not the reason enunciated by
the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We
do not reweigh the evidence and consider the evidence most favorable to the trial court’s
ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied. Jadrich
contends that the admission of the marijuana evidence found in his back yard violates both
the Fourth Amendment to the United States Constitution and Article I, Section 11 of the
Indiana Constitution, arguing that Deputy Butterfield’s act of opening the fence gate and
walking into his backyard was unconstitutional.
Fourth Amendment
The Fourth Amendment to the United States Constitution provides that “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” “The overriding function of the Fourth Amendment
is to protect personal privacy and dignity against unwarranted intrusion by the State.”
6
Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v. People of State of Colorado,
338 U.S. 25, 27 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961)]
we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as
being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’” Id.Both parties agree that Deputy Butterfield entered the curtilage of Jadrich’s home
when he walked through the gate and into the back yard. As the United States Supreme
Court has stated,
The curtilage concept originated at common law to extend to the area
immediately surrounding a dwelling house the same protection under the law
of burglary as was afforded the house itself. The concept plays a part,
however, in interpreting the reach of the Fourth Amendment. Hester v. United
States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), held that the
Fourth Amendment’s protection accorded “persons, houses, papers, and
effects” did not extend to the open fields, the Court observing that the
distinction between a person’s house and open fields “is as old as the common
law. 4 Bl. Comm. 223, 225, 226.”
We reaffirmed the holding of Hester in Oliver v. United States, [466
U.S. 170, 104 S.Ct. 1735, 80 L.Ed. 214 (1984)]. There, we recognized that the
Fourth Amendment protects the curtilage of a house and that the extent of the
curtilage is determined by factors that bear upon whether an individual
reasonably may expect that the area in question should be treated as the home
itself. 466 U.S., at 180, 104 S.Ct., at 1742. We identified the central
component of this inquiry as whether the area harbors the “intimate activity
associated with the ‘sanctity of a man’s home and the privacies of life.’” Ibid.(quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed.
746 (1886)).
Drawing upon the Court’s own cases and the cumulative experience of
the lower courts that have grappled with the task of defining the extent of a
home’s curtilage, we believe that curtilage questions should be resolved with
particular reference to four factors: the proximity of the area claimed to be
curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and the
steps taken by the resident to protect the area from observation by people
passing by. See California v. Ciraolo, 476 U.S. 207, 221, 106 S.Ct. 1809,
1817, 90 L.Ed.2d 210 (1986) (POWELL, J., dissenting) (citing Care v. United
7
States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100
L.Ed. 1461 (1956); United States v. Van Dyke, 643 F.2d 992, 993–994 (CA4
1981)). We do not suggest that combining these factors produces a finely
tuned formula that, when mechanically applied, yields a “correct” answer to all
extent-of-curtilage questions. Rather, these factors are useful analytical tools
only to the degree that, in any given case, they bear upon the centrally relevant
consideration—whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s “umbrella” of Fourth
Amendment protection.
U.S. v. Dunn, 480 U.S. 294, 300-01 (1987) (footnotes omitted).
As the Indiana Supreme Court has noted, however, not all police intrusions into the
curtilage violate the Fourth Amendment:
[P]olice entry onto private property and their observations do not violate the
Fourth Amendment when the police have a legitimate investigatory purpose
for being on the property and limit their entry to places visitors would be
expected to go, such as walkways, driveways, and porches. “The route which
any visitor to a residence would use is not private in the Fourth Amendment
sense, and thus if police take that route for the purpose of making a general
inquiry or for some other legitimate reason, they are free to keep their eyes
open ....” 1 Wayne R. LaFave, Search and Seizure: A Treatise on The Fourth
Amendment § 2.3(e), at 592-93 (4th ed. 2004) (internal quotations and
footnotes omitted). See also United States v. French, 291 F.3d 945, 953 (7th
Cir. 2002) (quoting LaFave); United States v. Reyes, 283 F.3d 446, 465 (2d
Cir. 2002), cert. denied, (quoting LaFave); Divello v. State, 782 N.E.2d 433,
437 (Ind. Ct. App. 2003), trans. denied, (quoting LaFave).
Which areas of a given piece of real estate may reasonably be viewed as
open to visitors is fact-specific. The determination will “necessarily include
consideration of the features of the property itself, such as the existence of
walkways and fences or other obstructions to access or viewing, the location of
primary residential entryways, as well as the nature or purpose for the visitor’s
call.” Divello, 782 N.E.2d at 438.
Trimble v. State, 842 N.E.2d 798, 802 (Ind. 2006), adhered to on reh’g, 848 N.E.2d 278 (Ind.
2006).
As an initial matter, we have little trouble concluding that the route to Jadrich’s back
8
door is not one that visitors would reasonably view as open to the public. The record
contains no indication of any impediments to approaching the front door, the door that
Deputy Butterfield did, in fact, approach first. In contrast, the record contains numerous
indications that the back door was not open to the general public. There was prominent
signage on a tree by the driveway, a garage door by the back yard, and the closed gate leading
to the back yard warning visitors not to trespass in the back yard and only to attempt to
contact residents via the front door. The back yard was also fenced in with a gate that was
latched, further indicating that the back door was not the preferred mode of approach for
visitors. The only factor in favor of finding the backdoor to be the primary entrance for
visitors is the presence of a paved sidewalk leading from the fence gate to the back patio, but
we conclude that that is far outweighed by other considerations.
Having determined that Deputy Butterfield entered into an area of Jadrich’s property
not open to the general public, we must address the question of whether that entry can be
constitutionally excused. Professor LaFave has recognized that “legitimate police business
may occasionally take officers to parts of the premises not ordinarily used by visitors, as
‘where knocking at the front door is unsuccessful in spite of indications that someone is in or
around the house.’” 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 2.3(f) (5th ed.). An examination of case law from Indiana and other
jurisdictions is instructive.
The Indiana case closest to being on point is Hardister v. State, 849 N.E.2d 563 (Ind.
2006). In Hardister, police responded to a residence after receiving a report of illegal drug
9
activity, and, when they knocked on the door, two persons inside, upon realizing that police
were at the door, fled toward the rear. Id. at 568. The police, believing that the two men
might flee through a back door, followed a sidewalk from the front around to the back, where
they observed, through a window, Hardister pouring a white powder down the drain of the
kitchen sink. Id. The Indiana Supreme Court held that the tip concerning drug activity, the
location of the residence in an area known for drug trafficking, and the duo’s flight were
circumstances that justified the officers’ entry into the curtilage and approach to the
secondary entrance in order to pursue their investigation. Id. at 571. Put another way, the
officers’ entry into the curtilage was justified by observations that indicated criminal activity
might be afoot.
A survey of relevant case law reveals numerous instances where other jurisdictions
have addressed the question of whether a police entry into a curtilage or approach to a
secondary entrance was justified. In Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir.
2007), officers apprehended a minor for drunk driving and proceeded to the house where she
claimed to have been drinking. Id. at 649. As the officers approached, they noticed a light
go off inside the house, and, after receiving no response to their pounding on the front door,
proceeded around to the back of the house where a back door could be accessed from a deck.
Id. From their vantage point on the deck, officers made observations through the windows
that caused them to enter the house. Id. at 649-50. In the civil case brought because of the
allegedly illegal entry, the court concluded that the officers’ actions were not
unconstitutional, employing the following analysis:
10
Police officers are permitted to enter private property and approach the front
door in order to ask questions or ask for consent to search the premises. But
knocking at the front door will not always result in police officers being able to
initiate the permitted conversation. The most obvious example is where
nobody is at home. Even where someone is at home, knocking at the front
door may go unheard. When the circumstances indicate that someone is home
and knocking at the front door proves insufficient to initiate a conversation
with the person sought, officers should not be categorically prevented from
carrying out their investigative function. Therefore, we hold that where
knocking at the front door is unsuccessful in spite of indications that someone
is in or around the house, an officer may take reasonable steps to speak with
the person being sought out even where such steps require an intrusion into the
curtilage. In this case, there were indications that someone was present within
the Hardesty home, knocking at the front door proved unsuccessful,
proceeding around the house and onto the back deck was a reasonable step,
and that step was directed towards initiating a conversation with the person or
persons in the house. Therefore, the Hamburg officers’ entry into the curtilage
in order to effectuate the knock and talk investigative technique did not violate
Plaintiffs’ Fourth Amendment rights.
Id. at 654. The Hardesty court also noted that its approach was consistent with that taken in
other Circuits. Id.
Several other Circuits and state courts have addressed similar issues, with the weight
of authority being fully consistent with the holding in Hardesty. See, e.g., U.S. v. Taylor, 458
F.3d 1201, 1204-05 (11th Cir. 2006) (“to the extent that the officers moved away from the
front door and toward Taylor” when he walked out from behind the barn, “this small
departure from the front door also does not trigger the protections of the Fourth
Amendment”); Alvarez v. Montgomery Cnty., 147 F.3d 354, 358 (4th Cir. 1998) (where
police responding to 911 call about underage drinking party approached front door to notify
residents of complaint but, seeing sign reading “Party In Back,” walked around the house to
the back yard where the party was going on and asked to see the host, such entry “did not
11
exceed their legitimate purpose for being there” and thus “satisfied the Fourth Amendment’s
reasonableness requirement”); U.S. v. Anderson, 522 F.2d 1296, 1300 (8th Cir. 1977)
(concluding that an officer’s entry into a back yard following an unsuccessful approach to a
front door was constitutional where officers observed a light on in the residence and heard a
dog barking behind it); U.S. v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974), (concluding
that an officer permissibly walked around to the back of the home in question, discovering
incriminating evidence on the way, when there was some reason to believe that the resident, a
suspected moonshiner, was inside at the time and an attempt at the front door was
unsuccessful); State v. Beane, 770 N.W.2d 283, 288 (N.D. 2009) (“The officers’ ‘small
departure’ from the front door of the residence to meet Beane coming from the unattached
garage also did not trigger the protections of the Fourth Amendment”); State v. Dunn, 172
P.3d 110, 113 (Mont. 2007) (defendant “did not have a reasonable expectation of privacy in
his backyard area” vis-à-vis police entry to investigate neighbors’ complaint of loud party
there, where “noise was coming from the backyard”); Tryon v. State, 263 S.W.3d 475, 485
(Ark. 2007) (officer “did not violate Tryon’s constitutional rights by merely walking into the
backyard after he saw Tryon take off running”); State v. Hider, 649 A.2d 14, 15 (Me. 1994)
(officer tracking thief from airport with tracking dog lawfully entered rear of defendant’s
curtilage where the officer discovered marijuana).5
5
A holding going the other way but fully consistent with these cases is Estate of Smith v. Marasco,
318 F.3d 497 (3d Cir. 2003), in which officers went to Robert Smith’s residence to investigate a complaint
from a neighbor. Id. at 501-02. When officers received no response at the front door, they went around to the
back of house in search of Smith. Id. at 502. When in back, one officer noticed a red dot on the other officer
and believed it to be a laser-sight from a firearm. Id. A series of events was triggered that culminated in
Smith’s death and a civil lawsuit filed against the officers by Smith’s estate. Id. at 502-06.
12
In summary, seemingly unanimous authority requires some justification before a
police officer may permissibly venture into spaces not normally used by the public, such as
approaching a secondary entrance to a house located in the curtilage. In some cases, this
entry is justified by a reasonable belief that a person may be contacted by such entry, and in
others by observations that indicate possible criminal activity. The record contains no
evidence that indicates such justifications in this case, as Deputy Butterfield did not observe
or hear anything before entering Jadrich’s back yard that would have led a reasonable person
to believe that any criminal activity was afoot, anybody was in the back yard, or knocking on
the back door was more likely to result in contact with anyone inside the house.
The State, however, argues that Deputy Butterfield’s entry into Jadrich’s back yard
was justified by the purpose of his being there, namely to serve a protective order. As
Trimble made clear, the nature and purpose of the visitor’s call can be relevant in such cases.
Trimble, 842 N.E.2d at 802. In Divello, which the Trimble court cited with approval, this
court elaborated on this concept:
The circumstances determining which portions of property may reasonably be
The Third Circuit held that
[w]here officers are pursuing a lawful objective, unconnected to any search for the fruits and
instrumentalities of criminal activity, their entry into the curtilage after not receiving an
answer at the front door might be reasonable as entry into the curtilage may provide the only
practicable way of attempting to contact the resident, as in [U.S. v. Daoust, 916 F.3d 757 (1st
Cir. 1990)], where the front door was inaccessible. Similarly, officers reasonably may
believe, based on the facts available to them, that the person they seek to interview may be
located elsewhere on property within the curtilage [and] an officer’s brief entry into the
curtilage to test this belief might be justified.
Id. at 520. Applying these principles to the facts of the civil case against the officers, the Marasco court
concluded that the trial court erred in granting the officers’ summary judgment motion on the basis that their
foray into Smith’s back yard was constitutional. Id.
13
viewed as open to visitors are determined on a case-by-case basis and will
necessarily include consideration of the features of the property itself, such as
the existence of walkways and fences or other obstructions to access or
viewing, the location of primary residential entryways, as well as the nature or
purpose for the visitor’s call. Common experience teaches that under normal
circumstances, uninvited visitors coming to a residence to speak with an owner
or resident are expected to come to the residence’s most direct, obvious and
prominent entryway, which in most cases is its front door.
Under most circumstances, uninvited visitors are also expected to leave
by the same route after knocking on the front door and receiving no response.
Of course, the nature of the circumstances surrounding the visit can also affect
the scope of the property open by implication. For example, persons
previously invited to access a residence by alternate entryways, or those
coming on truly pressing or emergency matters could reasonably be expected
to seek out residents through areas other than the front door.
Divello, 782 N.E.2d at 438.
The State has failed to convince us that Deputy Butterfield’s purpose for being at
Jadrich’s home—to serve a civil protective order—justified his foray into the back yard. The
State points to no authority suggesting that the service of protective orders is a purpose that
excuses police entry into areas that are otherwise constitutionally protected and off-limits.
Likewise, our research has uncovered no such authority. Moreover, while we acknowledge
that the service of protective orders is an important official function, there is no indication in
the record of any emergency or special urgency particular to the order at issue here. The
State has failed to establish that Deputy Butterfield was justified in entering Jadrich’s back
yard, an area specifically designated as off-limits to visitors, which is where he was when he
found the marijuana. Consequently, the trial court erred in admitting evidence regarding the
marijuana found in Jadrich’s back yard. As the State acknowledged at oral argument, a
conclusion that evidence regarding the marijuana was erroneously admitted leads necessarily
14
to the conclusion that evidence regarding the smoking pipe was erroneously admitted as well.
Without this evidence, both of Jadrich’s convictions are fatally undercut.
We reverse the judgment of the trial court and remand with instructions to vacate both
of Jadrich’s convictions.
FRIEDLANDER, J., and BAILEY, J., concur.
15