APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION TWO, The Honorable William J. Dougherty, Special Judge, Cause No. CR86-30B.
Givan, J., Shepard, C.j. and DeBruler and Pivarnik, JJ., concur. Dickson, J., concurs in result without separate opinion.
A jury trial resulted in the conviction of appellant of Robbery, a Class B felony. Appellant was sentenced for a period of twenty (20) years for Robbery, which was enhanced to a total sentence of fifty (50) years due to a finding that appellant is an habitual offender.
The facts are: On November 27, 1985, at approximately 1:30 a.m., the Kocolene gas station at 9545 Pendleton Pike, Indianapolis, was robbed. Sandra Walters was working as an attendant at Kocolene and was the only person present at the time of the robbery. She testified that appellant entered the store, walked up to the counter and asked for a pack of cigarettes. Walters turned around to get the cigarettes and when she turned back around, appellant was behind the counter with her, holding a gun. At this time, Walters got a good look at appellant's face. He ordered her to open the cash register and get on the floor with her head down. He emptied the register and asked her if there was money anywhere else. She showed him money under the counter, which he took. He also took twelve dollars Walters had in her pocket and about forty-two cartons of cigarettes.
Appellant then ordered Walters to get in the back room or he would mess up her face. In the back room, he took her billfold from her purse. Again, Walters was able to observe appellant's face. Appellant closed the door to the back room leaving Walters inside. He turned the knob to be sure the door was locked. He told her to stay in that room or she would be dead.
After she heard appellant leave, Walters was able to escape from the back room. She went back into the store and called the police.
Appellant had been living with his girl friend, Marilyn Kenny, at 2414 North Kitley in Indianapolis. Their landlord had negotiated the lease with Kenny and had conversed with appellant about maintenance of the property on a few occasions. About two months after appellant moved into the apartment, the landlord noticed that the premises were empty.
In regard to an unrelated investigation, police contacted the landlord and requested permission to enter the unoccupied apartment. Inside the apartment, police found a driver's license, social security card and blood donor's card belonging to Walters. No search warrant was issued for the investigation of the premises.
Police prepared a photographic array containing appellant's picture for Walters' inspection. She identified appellant as the robber from the photographic array and in a subsequent lineup.
At trial, appellant moved to suppress the evidence the police obtained from the apartment on the ground that the warrantless search was illegal. Appellant now argues that the trial court erroneously denied his motion to suppress. In his view, he still had a reasonable expectation of privacy in the apartment because Kenny had called the landlord after the police investigation to inquire about some beds remaining on the premises. No other personal property remained in the apartment except for some trash.
After considering that the apartment was empty except for trash and the rent was past due, the trial court concluded that the apartment had been abandoned. Therefore, the warrantless search did not violate appellant's Fourth Amendment rights.
No significant evidence was presented by appellant to show that he was living at the apartment at the time of the search. Because appellant had abandoned the apartment, he no longer had a reasonable expectation of privacy. Therefore, the warrantless search did not violate his Fourth Amendment rights and his motion to suppress the evidence was properly denied. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 32, 105 S.Ct. 816, 83 L.Ed.2d 809; Myers v. State (1983), Ind., 454 N.E.2d 861.
Appellant also argues that the evidence was insufficient to support the jury's verdict. He submits that because the evidence linking him to the robbery is tainted due to the illegal warrantless search, and because the State had not shown that appellant's apartment was not in his ...