Volume 36 Issue 19 June 16, 2009

Davis v. State, No. 45A03-0808-CR-407, __ N.E.2d __ (Ind. Ct. App., June 11, 2009)

Search based on a warrant based in part on information obtained in violation of the 4th Amendment was upheld when the remaining information for the warrant was not illegally obtained and sufficed to show probable cause.

Brown v. State, No. 34A05-0812-CR-716, __ N.E.2d __ (Ind. Ct. App., June 12, 2009)

Plurality agrees defendant receives no sentence credit for period he was arrested on charges unrelated to the one he pled guilty to and which were dismissed; plurality agrees defendant receives credit from time he was arrested on charge he pled guilty to.

Dowdell v. City of Jeffersonville, No. 10A04-0811-CV-676, ___ N.E.2d ___ (Ind. Ct. App., June 9, 2009)

Jeffersonville ordinance that prohibited convicted sex offenders from entering public parks was unconstitutional as applied under the prohibition on ex post facto laws in the Indiana Constitution.

Davis v. State, No. 45A03-0808-CR-407, __ N.E.2d __ (Ind. Ct. App., June 11, 2009)


. . . As conceded by Davis at oral argument, the pervasive smell of rotting flesh and the Majeskis’s statement of seeing emaciated dogs on the property created probable cause along with the exigent circumstances of the threat to animal life to permit a warrantless search of the curtilage. Thus, the exigent circumstances were a valid exception to the Fourth Amendment warrant requirement, making Deputy Joiner’s inspection of the property valid. Once on the property, Deputy Joiner heard the whimpering of dogs from beyond the wood line on the property. This further supported his search of the curtilage of the property, even into areas beyond that which encompassed areas open to the view of the public, to verify the well-being of the dogs.

While on the property, Deputy Joiner verified the condition of the dogs and that the Majeskis had provided them with food and water. He then contacted his supervisor to report his findings, called the crime lab to document the evidence of the animal carcass found in a trash bag in the bed of a pick-up truck, and spoke with the police dispatch in an attempt to alert animal control. Both Deputy Joiner and his supervisor subsequently contacted Detective Weaver, the local animal abuse expert, to inform her of the circumstances at the property. Before Detective Weaver arrived on scene, the police shifts had changed, and Deputy Joiner had left the property, leaving no police presence on the Davis property. Once she arrived, Detective Weaver conducted a warrantless search of the property, viewing the same circumstances as Deputy Joiner. Davis asserts that Detective Weaver’s search violated his Fourth Amendment rights because the exigent circumstances had abated, eclipsing the validity of police re-entry to the property. Detective Weaver used her observations from her search of the property as well as the information relayed to her by Deputy Joiner and Davis’s neighbors to obtain the search warrant.

. . . .

Our Supreme Court made a similar holding barring warrantless re-entry of a residence by police in Middleton v. State714 N.E.2d 1099 (Ind. 1999). After an officer saw marijuana, rolling papers and scales in plain view while taking a tour of a home as a prospective buyer with a realtor, he attempted to radio for assistance while still in the home, but was unsuccessful. Id.at 1100. Upon exiting the home, the officer again radioed for assistance and a few minutes later, re-entered the home through the unlocked back door with the additional officers to seize the evidence. Id. The Middleton Court held that if an officer is lawfully in a residence and then leaves, re-entry is not justified without a warrant, the consent of the owner, or some other exception to the warrant requirement. Id. at 1103. Undergirding this holding is the concept that [f]or purposes of the Fourth Amendment, however, the threshold of a home is the line that law enforcement officers cannot transgress without judicial authorization.  Id. at 1101.

Following this precedent, Detective Weaver’s re-entry to the curtilage of Davis’s property without a warrant, consent from the owner or in circumstances creating an exception to the warrant requirement as originally written violated the Fourth Amendment. Thus, probable cause for approval of the search warrant could not be based on Detective Weaver’s observations during her illegal search of the property. However, the probable cause affidavit also included the observations of Deputy Joiner that were relayed to Detective Weaver. Probable cause may be based on the collective information known to the law enforcement organization as a whole. Rios v. State762 N.E.2d 153, 163 (Ind. Ct. App. 2002) (quoting Williams v. State528 N.E.2d 496, 500 (Ind. Ct. App. 1988), trans. denied). As the original search of the curtilage was valid, his observations can be used to establish probable cause for the warrant.

The relevant portion of the warrant provided:

On 05/29/06, Officer Vernon Joiner of the Lake County Sheriff’s Department was dispatched to [Davis's property] in a reference to a call of animal cruelty. Officer Joiner spoke with neighbors living to the east [of the property], who advised there were numerous pit bulls located on the property that had not been fed or watered in several days. Officers Joiner and Szany went to the rear of the property to check on the status of the animals there and observed approximately 15 dogs without water, each chained to a 55 gallon drum. The officers observed that several of the dogs were emaciated and appeared to be in distress. Several of the dogs had injuries to their bodies consistent with having been involved in a dog fighting contest. Officers also observed several dead and decaying pit bull carcasses located in the back of a tan Chevy pickup truck in front of the garage. Through an opened door into the reddish-colored garage located on the property, officers also observed equipment commonly used in training fighting dogs, such as a treadmill, a head-to-head box, weights, chains and leases [sic] used to prepare dogs for fighting.

While the number of carcasses and the observation of weights and chains are not supported by Deputy Joiner’s testimony, the vast majority of this section is accurate as to Deputy Joiner’s observations. While only one dog carcass was found on the property, one dead dog is enough to raise concern about the activities on a property where numerous infirm dogs are kept. This information combined with information provided to Detective Weaver in her interviews with neighbors of Davis sufficiently establishes probable cause for the search of the premises, including the structures thereon for evidence of dog fighting and animal cruelty. Both neighbors observed instances where a large number of vehicles would converge on the Davis property at one time and men, along with some pit bulls, would go into the white metal garage and emerge a couple of hours later. During one of these gatherings, a neighbor observed a man carrying a dog followed by a man carrying a little black bag. They went from the white pole barn to the red shed and then later returned to the white pole barn.

Therefore, because there was sufficient legally obtained evidence in the affidavit of probable cause to support the issuance of a search warrant, the trial court did not abuse its discretion on this basis in admitting the evidence obtained in the warrant-based search of the Davis property.

MATHIAS, J., and BARNES, J., concur.

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Brown v. State, No. 34A05-0812-CR-716, __ N.E.2d __ (Ind. Ct. App., June 12, 2009)


Brown was arrested on March 6, 2008, on various charges of dealing, possession, and false informing. On April 9, while Brown was in jail, the State filed four additional charges against him for dealing. Those additional charges were, apparently, [footnote omitted] factually distinct from the March 6 charges. On April 10, the State arrested Brown on the April 9 charges, although Brown was already in jail due to the prior arrest. Brown remained in jail until his October 15 sentencing hearing. At that hearing, Brown pleaded guilty to one of the four April 9 charges, in exchange for which the State dismissed all the other pending charges. The court sentenced Brown to ten years incarceration after finding no mitigating circumstances and finding Browns criminal history and violation of probation as aggravators. The trial court did not award Brown any credit time for time served. This appeal ensued.

. . . .

Finally, Brown asserts that the trial court erred when it refused to credit him with time served while he was awaiting trial and sentencing. On this issue, this court does not have a majority opinion, although two panel members agree that some award of pretrial credit is required under Indiana law.

. . . .

The parties express two mutually exclusive positions. The State’s position leads to the conclusion that credit time can never be earned when a defendant is in jail on multiple counts and at least one of those counts is eventually dismissed. But Brown’s argument on appeal suggests that all charges disposed of in a plea agreement entitle a defendant to credit for time served on those charges. Neither argument is wholly supportable.

Case law supports a middle ground. Specifically, in James v. State872 N.E.2d 669, 672 (Ind. Ct. App. 2007), this court noted as follows:

Our case law is clear that a defendant is not entitled to credit for time served on wholly unrelated offenses. As it is undisputed in this case that the re-filed charge is based on the same set of underlying facts as the dismissed charges for which James was incarcerated pending trial, giving James credit for his pre-trial incarceration is not giving him credit for a wholly unrelated offense. We hold that, in these specific circumstances, James was entitled to credit for his period of pre-trial incarceration and the trial court abused its discretion in denying it.

(Citations and quotations omitted.) That is, whether a defendant earns credit time for charges dismissed by a plea agreement turns on whether those charges and the charges on which the sentence is imposed are based on the same set of underlying facts.  See id.

Here, there is no contention, and no reason to believe, that the dismissed March 6 charges were factually related to the April 9 charge on which Brown was eventually sentenced. Accordingly, Brown is not entitled to credit for time served from March 6 to April 10.

However, whether Brown is entitled to credit for time served between April 10 and October 15 presents an entirely different question. During that time period, Brown was incarcerated for the charge on which he eventually pleaded and was sentenced, along with the other dismissed charges. It has long been the law in Indiana that [a] defendant who is awaiting trials on different crimes during the same period of time and who is convicted and sentenced separately on each should have full credit applied on each sentence.  Dolan v. State420 N.E.2d 1364, 1372 (Ind. Ct. App. 1981); see alsoFrench v. State754 N.E.2d 9, 17 n.6 (Ind. Ct. App. 2001) (noting that,  under the precedent of Dolan, the trial court should have started calculating [the defendant's] credit time from the date of his arrest and not from the prior date of incarceration for unrelated charges); Stephens v. State735 N.E.2d 278, 284 (Ind. Ct. App. 2000) (It is well-settled that where a person incarcerated awaiting trial on more than one charge is sentenced to concurrent terms for the separate crimes, IC 35-50-6-3 entitles him to receive credit time applied against each separate term.), trans. denied. That is, a defendant in jail on multiple charges accrues credit time towards each charge.2 Here, while some of those charges and the credit time accrued against those charges were dismissed pursuant to the plea agreement, Brown nonetheless still accrued credit time towards his eventual sentence from April 10 to October 15. The trial court erred in not awarding Brown credit for that period of time served.

BAKER, C.J., concurring in part and dissenting in part:

[I]t is not disputed that the charges dismissed on March 6 were not related to the April 9 charge on which Brown was eventually sentenced. Thus, I agree with the lead opinion’s determination that Brown is not entitled to credit for time served from March 6 to April 10.

On the other hand, I cannot agree with the conclusion that Brown should receive credit for time served between April 10 and October 15. As the lead opinion notes, this court in Stephens v. State735 N.E.2d 278, 284 (Ind. Ct. App. 2000), held that where the defendant incarcerated on more than one charge is sentenced to concurrent terms for the separate crimes, IC 35-50-6-3 entitles him to receive credit time applied against each separate term. However, Brown was not sentenced to concurrent terms of incarceration for separate crimes. Rather, he pleaded guilty to only one charge and the remaining unrelated counts were dismissed pursuant to the plea agreement. Because those charges were dismissed in accordance with the terms of the plea agreement, it follows that Brown was not incarcerated as a result of the charge for which he was sentenced. Thus, I cannot agree that the rule announced in Stephens cited above regarding Indiana Code section 35-50-6-3applies in these circumstances. Although the parties could have allowed for credit time that pertained to the wholly unrelated charges that were ultimately dismissed, the parties did not negotiate such terms in the plea agreement.

Additionally, I believe that this court’s opinion Dewees v. State is instructive here. In Dewees

[The defendant] was arrested . . . and confined to jail on a theft charge on August 12, 1981. An information was filed on August 18, 1981. Dewees made bond on September 1, 1981, and remained free . . . until September 3, 1981, when he was rearrested . . . on new unrelated theft and burglary charges. . . . Dewees remained in . . . jail until December 30, 1981, when, upon his plea of guilty pursuant to a written plea bargain, he was given a four-year executed sentence for the earlier theft charge. The later, unrelated burglary and theft charges were dismissed pursuant to the same plea bargain. The trial court credited the defendant with 21 days presentence jail time (apparently from August 12 to September 1).

444 N.E.2d 332, 332 (Ind. Ct. App. 1983). In affirming the trial court, we observed that

Although IC 35-50-6-3 states a defendant is allowed credit for time confined awaiting trial or sentencing, we conclude the Legislature clearly intended the credit to apply only to the sentence for the offense for which the presentence time was served. Any other result would allow credit time for time served on wholly unrelated offenses. Under the criminal justice system, once convicted, the defendant must serve the sentence imposed for the offense committed. Credit time allowed by legislative grace toward a specific sentence clearly must be for time served for the offense for which that specific sentence was imposed.

. . .

Dewees was clearly not held more than 21 days on the charge for which he was sentenced. He is not entitled to any credit which may have accrued on a separate charge. The rule and the statute are based on the constitutional guarantees involving double jeopardy and equal protection. The end result is that a defendant, because of time spent in jail awaiting trial, will not serve more time than the statutory penalty for the offense, and will not serve more time than a defendant who has the good fortune to have bail money.

Id. at 334 (emphases added).

In light of the conclusion reached in Dewees, coupled with the rule that credit is to be applied for confinement time that is a result of the criminal charge for which sentence is being imposed, e.g., James872 N.E.2d at 672, I believe that the trial court properly denied Brown’s request for pretrial credit time. Thus, I would affirm the judgment in all respects.


KIRSCH, J., concurring and dissenting in part:

I concur in the decision of the lead opinion affirming Brown’s sentence and awarding him credit time from April 10, 2008 forward, but I respectfully dissent from the decision denying Brown credit time prior to such date.

. . . .

. . . Brown is not claiming double credit time; rather, he is asking that be given credit for the time spent in jail on charges that were resolved by his plea agreement. My belief is that where a trial court is sentencing pursuant to a plea agreement that resolves multiple charges, including the charge for which the defendant is being held in jail, that credit time should be accorded against the sentence ultimately imposed in the absence of a provision in the plea agreement to the contrary. Here, the State agreed to dismiss the charges for which Brown was being held. While such a provision is usually to the benefit of the defendant; here, it acted to Brown’s detriment. Had Brown pleaded guilty to one or more of such charges, he clearly would have been entitled to credit time against the resulting sentence.

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Dowdell v. City of Jeffersonville, No. 10A04-0811-CV-676, ___ N.E.2d ___ (Ind. Ct. App., June 9, 2009)


At issue herein is an ordinance that prohibits convicted sex offenders from entering public parks in Jeffersonville. Though offenders may seek very limited exemptions, the exemption procedure is extraordinarily burdensome and virtually illusory. The defendant was charged, convicted, served the sentence for his crime, and completed his registration requirement before the ordinance was enacted.  As applied to this defendant, we find that the ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution.

. . . .

Dowdell argues that the Ordinance is unconstitutional as applied to him under the ex post facto prohibition of Article I, section 24 of the Indiana Constitution. This prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. Weaver v. Graham450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri71 U.S. 277, 325-25 (1867)). . . .

. . . .

Dowdell concedes that the Ordinance has a non-punitive purpose to protect those members of the public who use the City parks. We must, therefore, analyze the effects of the ordinance as applied to Dowdell. Our Supreme Court explained that the seven factors set forth by the United States Supreme Court to determine the effects of a statute apply to an analysis under the Indiana Constitution. Wallace, slip op. p.10-11. Those seven factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Id. at 11 (quoting Kennedy v. Mendoza-Martinez372 U.S. 144, 168-69 (1963)) (emphases added). No one factor is determinative, and our task is not simply to count the factors on each side, but to weigh them. Id. (quotingState v. Noble829 P.2d 1217, 1224 (Ariz. 1992)).

. . . .

In summary, as in Wallace,

of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view advancing a non-punitive interest points clearly in favor of treating the effects of the [Ordinance] as non-punitive. The remaining factors . . . point in the other direction.

Slip op. p. 18. Dowdell was charged, convicted, served the sentence for his crime, and fulfilled and completed his registration requirement before the Ordinance was enacted. We hold that as applied to Dowdell, the Ordinance violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The judgment of the trial court is reversed.

BARNES, J., concurs.

CRONE, J., dissents with opinion.

CRONE, J., dissenting.

. . . .

To summarize, of the seven factors identified as relevant to the inquiry of whether this Ordinance has a punitive effect despite legislative intent that it be non-punitive, I find that one supports the conclusion that the Ordinance is punitive in effect as to Dowdell, and one slightly favors treating the effects of the Ordinance as punitive when applied here. The remaining five, including the excessiveness factor, point in the other direction. Accordingly, I would conclude that as applied to Dowdell, the Ordinance does not violate Indiana’s constitutional prohibition on ex post facto laws. The predominantly non-punitive nature of the Ordinance convinces me that there is no violation of Article I, section 24 of the Indiana Constitution. Consequently, I would affirm the entry of summary judgment in favor of the City.

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