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McIlquham v. State

Supreme Court of Indiana

June 20, 2014

NICK MCILQUHAM, Appellant (Defendant),
v.
STATE OF INDIANA, Appellee (Plaintiff)

Page 507

[Copyrighted Material Omitted]

Page 508

Appeal from the Marion Superior Court, No. 49G20-1107-FB-47971. The Honorable Michael S. Jensen, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1212-CR-631.

ATTORNEY FOR APPELLANT: Deborah Markisohn, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ian McLean, Deputy Attorney General, Indianapolis, Indiana.

Rush, Justice. Dickson, C.J., and Rucker, David, and Massa, JJ., concur.

OPINION

Page 509

Rush, Justice.

Police responded to a report of a very young child, unsupervised and partially clothed, wandering near a pond at an apartment complex. Defendant, the child's father, arrived shortly thereafter and agreed to let the police check the safety of his apartment before leaving the child with him. " Courts should not be reticent in enforcing the constitutional rule restricting the search of a person's home without a warrant or consent," Hawkins v. State, 626 N.E.2d 436, 439 (Ind. 1993)--but here, Defendant consented to police entry into the apartment, and the child's mother who was the leaseholder consented to a full search. Because of their consents, the contraband found in the apartment was properly admissible, and we affirm the trial court.

Facts and Procedural History

At about 9:00 on the evening of July 5, 2011, two police officers responded to a call about an unsupervised toddler (identified as R.), naked from the waist down, wandering near an apartment-complex retention pond and trying to eat Cheerios off the ground. Shortly after they arrived, Defendant walked up, saying that he was her father and had dozed off while watching her. One officer told Defendant that police " needed to come back to [Defendant's] apartment and make sure what the living conditions were for the child, make sure it was safe, and that [police] would probably end up getting ahold of CPS." [1] At the time, there was no discussion of exactly what such a " safety check" would entail, but Defendant and police appear to have had a common understanding--in a police interview later that night, Defendant described the police request as " want[ing] to come back to my house and make sure everything is fit," and the officer testified that he intended to " look[] to see what the--how the apartment is, dirty, clean, if there is any food, if there is a bed for the child to sleep in. The whole purpose is for the safety of the child." Defendant " said it was okay" and walked back to the apartment with the two officers, carrying R. part of the way.

When they arrived at the apartment, Defendant opened the door for police, then immediately " made a bee line for the kitchen" at a " very fast pace" and began making " very furtive movements from the [kitchen] counter to his pockets." Because police could not tell what Defendant had grabbed, they performed ...


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