Bell v. State , 626 N.E.2d 570 ( 1993 )

ROBERTSON, Judge.

Tony Anthony Bell appeals his conviction after a jury trial of dealing in marijuana. Bell raises two issues on appeal, neither of which constitutes reversible error.

FACTS

The facts in the light most favorable to the verdict indicate that on July 23, 1992, Police Officer Richard Whitlow drove by Bell’s house and noticed that Bell had set out several opaque garbage bags near an alley outside of his home. The bags were placed outside of the fenced-in area of Bell’s property where they could be reached without stepping onto Bell’s property. They appeared to be available for waste disposal pick-up. Since Whitlow had received several tips that Bell was dealing marijuana, Whitlow decided to have the bags picked up.

Two other police officers picked the bags up and gave them to Whitlow. Whitlow searched the bags and discovered drug paraphernalia, a small amount of marijuana, and mail addressed to Bell. This evidence enabled the police to obtain a warrant to search Bell’s home, cars, and business.

The police raided Bell’s house. Before the police broke Bell’s door down with a sledge hammer, Whitlow looked through a window and observed Bell place several plastic bags filled with marijuana in a manila envelope. No other police officer had seen the envelope in Bell’s possession and initially, the police could not find the envelope described by Whitlow. It was surmised that Bell had thrown it out the window. Yet, officers searching outside the house failed to find it. Later, Whitlow, searching alone, found the envelope which contained over 80 grams of marijuana. Drug paraphernalia was discovered inside Bell’s home including: finger scales, rolling papers, and baggies containing marijuana residue. Whitlow testified that, as Bell spoke with him during the search, Bell admitted that he was selling “dope.”

Bell has consistently maintained that he was framed by Whitlow and has suggested that Whitlow planted the incriminating envelope. After trial, Bell filed a motion to correct error alleging newly discovered evidence which included Whitlow’s arrest for attempting to take a bribe, attempted theft, and theft. Whitlow had been accused of attempting to extort $100,000.00 from the father of another drug defendant. A search of Whitlow’s desk produced an unmarked bag of marijuana.

DECISION

I.

Whether the trial court erred in denying Bell’s motion to suppress evidence obtained from Bell’s garbage?

Bell asserts that the search of his garbage bags violated his rights under the Fourth Amendment of the United States Constitution and Art. 1 § 11 of the Indiana Constitution. He argues that without the fruit of the illegal search of his garbage, the police would have been unable to obtain the search warrant, and therefore the trial court should have suppressed essentially all the evidence against him.

The warrantless search or seizure of garbage left for collection outside a home would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in his garbage that society accepts as objectively reasonable. California v. Greenwood (1988), 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30. It is common knowledge that plastic garbage bags left on or at the site of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Id. Therefore, a defendant has no reasonable expectation of privacy in inculpatory items left in opaque garbage bags set out for pickup by a trash collector. Id. The supreme court noted, magnanimously, that individual states are free to construe their own constitutions as imposing more stringent constraints upon police conduct than does the United States Constitution. Id.

The State concedes that Indiana courts have not yet addressed whether a defendant has a reasonable expectation of privacy in his garbage under the Indiana Constitution. The State urges us to follow Greenwood and notes that our supreme court has paralleled the United States Supreme Court on issues of privacy in the past, citing In re Order for Indiana Bell Telephone to Disclose Records, Etc. (1980), 274 Ind. 131, 409 N.E.2d 1089, which relied on Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. In Indiana Bell, our supreme court held, consistent with the United States Supreme Court, that there is no legitimate expectation of privacy regarding numbers dialed on a telephone. Id.

We are impressed with the rationale of the Greenwood case and will apply it here. In the present case, Bell placed the garbage bags in question,outside the fenced-in area of his property where they could be reached from the alley without stepping onto Bell’s property. They appeared to be available for waste disposal pick-up. We hold that Bell had no reasonable expectation of privacy in the contents of the garbage bags and we find no error in the trial court’s denial of Bell’s motion to suppress.²

II.

Whether the trial court erred by denying Bell’s motion based on newly discovered evidence?

Bell asserts that he was framed by Officer Whitlow and notes that almost all of the evidence against him was supplied by Whitlow. For example, he suggests that the manila envelope which contained marijuana was planted by Whitlow and notes that none of the other officers had seen it in Bell’s possession and those who looked for it outside Bell’s house could not find it. But, Whitlow, who searched later, did “find” it. Bell asserts that his newly discovered evidence of Whitlow’s misconduct in the other drug case severely impeaches Whitlow’s credibility and that justice demands a new trial.

The trial court held a hearing and denied Bell’s motion. However, on its own motion, the trial court reduced Bell’s sentence finding that justice required such a modification based upon the evidence introduced at the hearing.

A motion to correct error based upon the grounds of newly discovered evidence must be supported by one or more affidavits which must contain a statement of the facts showing (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Fox v. State (1991), Ind., 568 N.E.2d 1006; Ind.Crim.Rule 16; Ind.Trial Rule 59. The denial of a motion based on newly discovered evidence is a discretionary ruling and is afforded deference on appeal. Id.

In the present case, the newly discovered evidence involves Officer Whitlow’s misconduct in a different drug case. The only possible relevance of this evidence in the present case would be to show that Whit-low is a criminal himself and his testimony is not credible.

Evidence which is merely impeaching is not available as grounds for a new trial under the rules concerning newly discovered evidence. Walker v. State (1983), Ind.App., 454 N.E.2d 425, trans. denied. Therefore, the trial court abused no discretion in denying Bell’s motion.

Judgment affirmed.

HOFFMAN, J., concurs. NAJAM, J. dissents with separate opinion.

2 . We respectfully disagree with our Fifth District’s holding in Moran v. State (1993), 625 N.E.2d 1231 that Hoosiers have a right to privacy under the Indiana Constitution with respect to their garbage left out for collection. We accept as absolute truth the Moran court’s observation that Hoosiers are distinguished by their civilized behavior. (Op. at 1238) Nevertheless, we believe that, unfortunately, not all uncivilized behavior has yet been eradicated from our state; and that, even in Indiana, it is common knowledge that garbage left out for collection is readily accessible to animals, children, scavengers, snoops, and other members of the public. Thus, we respectfully disagree that Hoosiers have a personal and legitimate expectation of privacy in the garbage they leave out for collection. See Perkins v. State (1985), Ind., 483 N.E.2d 1379 (cited in Moran, op. at 1238).