POLICE / PROSECUTOR UPDATE - OCTOBER 1998
Search and Seizure
Warrantless Search of Tent as a "Home"
Plain View Search
A recent Indiana Court of Appeals case serves as a vehicle to
examine several aspects of the law of search and seizure. In the
case, the defendant visited his wife in a state park where she
had been camping in a tent for several days. The defendant paid
the campsite rental fee for that night. Later that night, three
conservation officers were alerted by the park's security guard
of possible drug activity at the defendant's campsite. They proceeded
to an adjacent campsite and observed the defendant's campsite
for several minutes. The defendant's tent had two "rooms," one
being enclosed on three sides by screen and the other enclosed
by canvas. The tent was lit by an electric lamp. There were three
men and two women in the tent. The officers observed one man and
one woman in the screened area sharing a hand-rolled cigarette,
which the officers believed to be a marijuana cigarette. They
approached the tent and knocked on a bucket sitting outside the
tent as they unzipped the flaps to the screened room. The defendant
was sitting in the back, canvas part of the tent. One officer
noticed the defendant slide his hand under a blanket. The officer
ordered the defendant not to move, and another officer drew his
gun and pointed it at the defendant. In defendant's hand was a
35mm film canister which contained a substance later determined
to be methamphetamine.
The threshold issue in the case was whether a person camping
in a tent in a public campground is entitled to constitutional
protection against unreasonable search and seizure. The court
noted that the law in Indiana is well-settled that a person renting
a hotel or motel room may have a legitimate expectation of privacy
in the room. The court stated that as a general proposition the
constitutional protections afforded those who rent hotel rooms
should also be extended to those who make their "transitory home"
a tent, IF they exhibit a subjective and reasonable expectation
of privacy in the tent. The court felt the defendant had exhibited
such an expectation of privacy in the tent.
The court then looked at whether there was probable cause for
the officers to believe a crime was being committed. The persons
in the screened area of the tent, which was well-lit, had no reasonable
expectation of privacy in that their actions could be viewed by
anyone in the vicinity. The officers therefore lawfully viewed
activity which was consistent with illegal drug activity. Thus,
there was probable cause to believe a crime was being committed.
However, even with probable cause, a search warrant is necessary
to enter a protected area, absent some exception to that requirement.
The State first contended that the "plain view" of the marijuana
did away with the warrant requirement here. This is incorrect.
The "plain view" exception applies only when an officer, after
lawfully entering a protected area, observes contraband in plain
view. It did not apply here because it had to be shown that the
officers were lawfully in the tent before the plain view doctrine
The State also contended that the warrantless entry was justified
to prevent the destruction of evidence. However, the court noted
that the only evidence of "destruction of evidence" was the consumption
of the marijuana cigarette in the normal course, which was unlikely
to be so totally consumed that no evidence of its existence remained.
In any event, the plain view of the marijuana cigarette, or its
imminent destruction, would not justify the search which revealed
the film canister.
Finally, it should be noted that the officers observed activity
which, at most, would constitute only a misdemeanor. Our courts
have held that a warrantless home entry should rarely be sanctioned
when there is probable cause to believe that only a minor offense
has been committed.
Haley v. State, 696 N.E.2d 98 (Ind. App. 1998).
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.