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Mundy v. State

Court of Appeals of Indiana

November 19, 2014

PHILLIP D. MUNDY and MERLE JOST, Appellants-Defendants,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE MONROE SUPERIOR COURT III. The Honorable Kenneth G. Todd, Judge. Cause Nos. 53C03-1208-FC-801, 53C03-1208-FC-803.

ATTORNEYS FOR APPELLANTS: KARA E. KROTHE, NOAH T. WILLIAMS, Monroe County Public Defenders, Bloomington, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.

MATHIAS, Judge. RILEY, J., and CRONE, J., concur.

OPINION

Page 115

MATHIAS, Judge

Phillip D. Mundy (" Mundy" ) and Merle Jost (" Jost" ) (collectively, " the Defendants" ) were charged with Class D felony conspiracy to commit dealing in marijuana; Mundy was also charged with Class D felony maintaining a common nuisance. The Defendants filed motions to suppress certain evidence, which the trial court denied. The Defendants appeal from the trial court's interlocutory order and present two issues, which we consolidate and restate as whether the police violated the Defendants' constitutional rights to be free from unreasonable searches and seizures. Concluding that the actions of the police in this case were unreasonable under the circumstances, and therefore violative of Article 1, Section 11 of the Indiana Constitution, we reverse and remand.

Page 116

Facts and Procedural History

On August 24, 2012, Detectives Brandon Lapossa (" Detective Lapossa" ) and Rick Crussen (" Detective Crussen" ) of the Bloomington Police Department were looking for Clinton Douthitt (" Douthitt" ).[1] Douthitt worked for a moving company, and the police had information that Douthitt may have been involved in the theft of a handgun that had been taken from one of the company's clients. They also thought that this handgun may have been used in a murder.[2] The detectives looked up Douthitt's information with the Indiana Bureau of Motor Vehicles (" BMV" ) and found that his last address was listed as 6552 East Collins Lane in Bloomington, Indiana. The detectives went to Collins Lane looking for Douthitt's address. They initially went to the front door of a house they thought was 6552 East Collins Lane and knocked on the door, but no one answered. They then looked at mailboxes located on the side of the road and decided to try another home located at the end of a long driveway.

The detectives drove up the private drive for about fifty yards until they saw a cable stretched across the drive. The cable was fastened to two posts at opposite sides of the drive and secured by two padlocks, at least one of which was unlocked. There was also an " ADT" security sign posted near the cable and a small, black security camera on a nearby tree. Also nearby, but not noticed by the detectives, was a " No Trespassing" sign located on a tree just beyond the cable to the right of the driveway. Despite all of these clear warnings that visitors to the premises were not invited or desired, Detective Crussen exited the police vehicle, removed the cable from one of the padlocks, and lowered the cable so that he and Detective Lapossa could proceed to drive up the driveway. As they drove up the driveway, the detectives saw a mobile home ahead, with several outbuildings, including a garage, to the left of the driveway as they proceeded toward the home.

The detectives parked their car approximately seventy to one-hundred yards away from the mobile home, exited the vehicle, and began to walk toward the home. As they did so, they detected an odor of marijuana that seemed to be coming from the area of the garage. Shortly after the detectives exited their vehicle, defendant Jost came out of the garage, at which time the odor of marijuana became stronger. Detective Crussen asked Jost if Douthitt was nearby, to which Jost responded negatively. Thereafter, Janice Stam (" Stam" ), came out of the mobile home and informed the police that she was the owner of the property. She also told the police that she had lived there for over twenty years and had never heard of Douthitt. The detectives asked Stam about the odor of marijuana and asked her if she wanted them to check to see if someone was smoking marijuana on her property. Stam said no, and refused the detectives' request for consent to search the property.

Although the detectives had not seen any weapons, they then secured Jost and Stam for purposes of officer safety. Detective Crussen then entered the mobile home, without a warrant, and brought out the two other occupants, defendant Mundy and his girlfriend. When Detective Crussen asked again about Douthitt, Mundy informed him that the detectives were at the wrong address. Douthitt's address

Page 117

was 6552 East Collins Lane, but Stam's property was located at 6225 East Collins Lane.

Based on the odor of marijuana they had smelled, and the presence of plants near the mobile home that they believed to be marijuana, the detectives applied for and received a search warrant for the premises. During the execution of this warrant, the police discovered over 100 marijuana plants. As a result, the State charged Mundy on August 30, 2012 with Class C felony conspiracy to commit dealing in marijuana and Class D felony maintaining a common nuisance. The State charged Jost with Class C felony conspiracy to commit dealing in ...


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