POLICE / PROSECUTOR UPDATE - MARCH 1998
Plain View Search
OWI "Implied Consent"
The Supreme Court and Court of Appeals recently decided two cases which
are of some interest to law enforcement. One case dealt with the plain
view doctrine and the person in need of aid exception to the search
warrant requirement. The facts reveal that a hotel maid approached a
certain room shortly after noon and knocked on the door. The check-out
time for the room had passed, so the maid had the front desk call the
room. After getting no response, the front desk called a second time,
again with no response. The maid then knocked again and, still getting
no response, used her key to enter the room. Although the door chain
barred her entrance, she was able to observe the defendant apparently
asleep on a couch and a candle and a "white powder substance" on a table
in front of the couch. After a third call from the front desk received
no response, the police were called. When further knocks by the police
went unanswered, the manager unlocked the door and, after observing the
defendant and the powdery substance on the table, unlatched the chain,
allowing the police to enter. The police then aroused the defendant and
his girlfriend and seized substantial amounts of cocaine and marijuana.
Under the plain view doctrine, police may seize incriminating evidence
without a warrant when two conditions are met. First, the initial police
intrusion must have been permissible under the Fourth Amendment. Second,
the incriminating nature of the evidence must be immediately apparent.
Under the first requirement, it is not necessary for police to have a
warrant to enter a place "when the facts suggest a reasonable belief
that a person within the premises is in need of aid." In this case,
repeated calls had gone unanswered and the maid had observed that the
defendant was present in the room but did not respond to those calls.
This could reasonably have suggested that the occupants of the room were
in need of medical attention. Therefore, no warrant was required for the
police to enter the room. Furthermore, as the police were legitimately
in the room, they could observe the white powdery substance and drug
paraphernalia in plain view, as these items were sitting on the table in
front of the couch on which the defendant was sleeping.
The second case dealt with the Implied Consent Law and the importance of
an officer's testimony at a refusal hearing that the defendant was
advised of the consequences of his refusal to submit to a chemical test.
The defendant's license had been suspended for refusal to submit to a
chemical test. He petitioned for judicial review but the trial court
denied his requested relief.
Ind. Code 9-30-6-7(a) requires that "if a person refuses to submit to a
chemical test, the arresting officer shall inform the person that
refusal will result in the suspension of the person's driving
privileges." The defendant testified that he was asked to submit to a
breath test but was never told that his refusal would result in the
suspension of his driver's license. However, to quote the court of
appeals, " More telling . . . is the testimony, of lack thereof, of the
arresting officer." The officer testified that he informed the defendant
of "the Implied Consent Law" at least five times and read to the
defendant from his Implied Consent card at least four times. However,
the officer never testified to the substance of his advisements to the
defendant. The court of appeals stated: "We cannot assume . . . that
[the officer] informed [the defendant], either from memory or by reading
from his card, of the consequences of his refusal to submit to a breath
test as required" by law. Therefore, the defendant's failure to submit
to the test could not be considered a refusal.
The lesson to be learned from this case is to never take shortcuts when
testifying. Testimony that a person was advised of his "Miranda rights"
without testifying to the substance of this advisement is insufficient
if challenged. Likewise, testimony that a person was "informed of the
Implied Consent Law" without specifying the substance of the advisement
is not sufficient if challenged.
Plain View
Stewart v. State, 688 N.E.2d 1254 (Ind. 1997).
Consent
Vetor v. State, 688 N.E.2d 1327 (Ind. App. 1997).
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.
