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One man’s trash is another man’s evidence

  1. BlueMystic
    http://www.greensburgdailynews.com/story.asp?id=5528


    Evidential trash: Judge rules that city’s search in drug bust is legal
    By Jim Cummings, Greensburg Daily News
    July 7, 2005

    One man’s trash is another man’s evidence.

    And that’s the legal truth.

    Circuit Court Judge John Westhafer denied a defense motion claiming a search by the State Police of a city man’s trash was improper.

    The motion was brought last week by defendant Mark Allan Miller and his attorney Robert D. Wickens. They were responding to a March 24 ruling by the Indiana Supreme Court in Litchfield v. State narrowing the allowable parameters of trash searches. This was the first local case to test the revision to the law.

    Miller has been in jail for more than a year while his case readies for an Aug. 8 trial.

    The legality of a governmental search under the Indiana Constitution turns on an assessment of the reasonableness of the police conduct. Litchfield v. State, reads “totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure.”

    Thus, the reasonableness of a search or seizure turns on a balance of: The degree of concern, suspicion, or knowledge that a violation has occurred, the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and the extent of law enforcement needs.

    Subsequent to a May 14, 2004 trash inspection by police, a search warrant was issued and Miller, xxxx xxxxxxxx St., was arrested and charged with attempted manufacture of methamphetamine (within 1,000 feet of a school), possession of the drug and maintaining a common nuisance. All three counts are felonies and the manufacturing charge is labeled Class A carrying a maximum sentence of 50 years in jail.

    Miller and Wickens petitioned to have all of the evidence thrown out of the case as “fruit of a poisonous tree” as illegally obtained evidence is referred to in legal circles. The state, represented by Deputy Prosecutor Jim Rosenberry, claimed the trash search was legal because the Indiana State Police had enough justifiable and articulable suspicion a crime had occurred. They had a tip from a concerned citizen and police allegedly witnessed Miller smoking methamphetamine on his back porch the day before the search.

    Westhafer agreed with Rosenberry.

    “In denying the defense motion to suppress, the court determined the state met the standards for trash searches set recently in Litchfield v. State,” Westhafer said. “The important aspect is that the state has to have a good reason to search someone’s trash. This cannot be a random event.”

    The order was signed Wednesday morning and delivered to both the prosecution and defense. Both sides must now prepare for trial or work out an agreement to avoid court.

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