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Conn v. State

Court of Appeals of Indiana

December 20, 2017

Frederico A. Conn, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Franklin Circuit Court The Honorable Clay M. Kellerman, Judge Trial Court Cause No. 24C02-1504-F6-297

          ATTORNEY FOR APPELLANT Leanna Weissmann Hoosier Appeals Lawrenceburg, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

          Mathias, Judge.

         [¶1] For purposes of privacy interests protected by Article 1, Section 11 of the Indiana Constitution, closed doors matter; high fences matter; roped-off drives matter; closed drapes matter; and in this case, a closed and locked gate matters.

         [¶2] Here, Conn appeals the trial court's decision to admit evidence obtained during a search at a private conservation club, arguing that the warrantless entry and search of the club violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.[1]

         [¶3] Because we conclude that the officers' actions in this case were unreasonable under the circumstances, and therefore impermissible under Article 1, Section 11, we reverse and remand.[2]

         Facts and Procedural History

         [¶4] Late in the evening on April 1, 2015, Frederico Conn attended a party with friends at the Laurel Conservation Club ("the Club") during which Conn and other attendees shot firearms at a pizza box that had been converted into a target. Around midnight, Cheryl Benevengo ("Benevengo"), who lives next to the Club, heard gunshots as she drove by on her way home from work. She also noticed people outside the Club having a party. The Club has an active shooting range, and Benevengo often heard gunfire coming from that direction. However, she had never before heard gunfire so late on a weeknight. After an hour of continued noise and activity coming from the Club, Benevengo called the police. She told the dispatch officer that firearms were being shot, and that it was possible animals were being killed illegally.[3]

         [¶5] Roughly forty-five minutes later, three officers arrived at the Club in separate marked cars: Department of Natural Resources Officer Andy Hagerty ("Officer Hagerty"), and Franklin County Sheriff's Department Deputies Adam Henson ("Deputy Henson") and Jeffrey Staat ("Deputy Staat"). By the time the officers arrived, the gunfire had ceased and the activity was winding down.

         [¶6] A locked gate obstructed the main road from the lane leading back to the Club.[4] As the officers pulled up, a vehicle was attempting to leave the Club property, but was blocked in by the gate. The driver of the vehicle, Josh Wright ("Wright"), told the officers that he was waiting for someone to come unlock it. All three officers climbed over or otherwise maneuvered around the gate. Deputy Staat stayed with Wright, while Officer Hagerty and Deputy Henson began walking down the Club's lane where they saw a group of four individuals standing beside two vehicles next to the Club's building.

         [¶7] As the officers made their way down the lane, they observed Conn veer away from one of the two vehicles and walk behind the Club's building. The officers found this behavior suspicious and decided to investigate what Conn was doing. Officer Hagerty then saw Conn jogging towards him from behind the building, and he asked Conn what he was doing back there. Conn told the officers that he had been urinating. After further questioning, Conn admitted that he had hidden a firearm behind the building.

         [¶8] Conn led the officers back to where he hid the firearm under a board and some leaves. In addition to a .22 caliber handgun, the officers also discovered two change purses and a box of .22 caliber ammunition nearby. Inside the change purses the officers found a glass pipe, a pen modified into a straw, and baggies containing methamphetamine.

         [¶9] Conn was charged with Level 6 felony possession of methamphetamine, Class A misdemeanor possession of a firearm by a domestic batterer, and Class A misdemeanor possession of paraphernalia. A two-day jury trial commenced on January 18, 2017, and during trial Conn objected to the admission of the evidence retrieved from the Club. The trial court overruled the objection, and the jury found Conn guilty. On February 14, 2017, Conn was sentenced to two-and-one-half years to be served at the Franklin County Security Center. Conn now appeals.

          I. Standard of Review

         [¶10] When reviewing a trial court's ruling on the admissibility of evidence resulting from an allegedly illegal search, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Cartwright v. State, 26 N.E.3d 663, 667 (Ind.Ct.App. 2015), trans. denied. However, the constitutionality of a search or seizure is a pure question ...

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