Court: Search of Trash Was Wrong


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Oct 22, 2005
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Indiana -- The government might have to give back more than $57,000 in confiscated money and property as a result of a bad tip. A judge approved the transfer of $57,060 in cash plus jewelry and firearms to federal authorities after it was seized during a drug raid in Indianapolis.
But the state Court of Appeals overturned the judge's order on Monday, finding that the case against George Membres III was based on an unconstitutional search of his trash.

The judges ruled 2-1 that police didn't have good enough reason to search Membres' trash in March 2005, when Marion County Sheriff's Deputy Scott Wildauer found plastic bags, possible marijuana remnants, rolling papers and other evidence that led a judge to issue a search warrant.
Wildauer searched the trash after a confidential informant told the deputy he was "pretty sure" that Membres was selling marijuana out of his home.
After obtaining the warrant, police searched Membres' home and found marijuana, money, jewelry and four guns, according to court records.
Membres filed a motion to suppress the evidence when the state sought to turn the money over to the federal government, arguing the trash search violated his constitutional right against unreasonable search and seizure. The trial judge denied his request but stayed the transfer order pending appeal.
No criminal charges have been filed against Membres. There was no number under his name in published Indianapolis listings so he could not be reached for comment.
While police can legally search a person's trash, Judge James S. Kirsch wrote, they cannot search people's trash indiscriminately.
"There is, however, a question as to whether Deputy Wildauer had reasonable suspicion to search Membres trash," Kirsch wrote in the 11-page ruling. "If Deputy Wildauer did not have reasonable suspicion to search the trash, he could not legally have found the marijuana evidence in the trash and could not have used that evidence to establish probable cause for the search warrant of Membres residence."
The informant's statement that he was "pretty sure" Membres was selling marijuana was not specific enough to justify the search, the court ruled, and police did not sufficiently demonstrate the informant's reliability.
"The information was not based on any observations of criminal activity by the informant; he only told Deputy Wildauer that he was "pretty sure" that Membres was dealing marijuana in an unknown quantity in excess of twenty pounds," the ruling said.
Judge L. Mark Bailey dissented, saying that he believed police had acted in good faith. Source: Associated Press (Wire)
Published: Tuesday, August 1, 2006
Copyright: 2006 Associated Press

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