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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: D. ALAN LADD Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DONNA HARLOW, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0605-CR-399

APPEAL FROM THE MARION SUPERIOR COURT The Honorable William Young, Judge Cause No. 49G20-0503-FA-52008

June 7, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Defendant Donna Harlow ("Harlow") appeals the trial court's order granting the State's motion to correct error, effectively denying her motion to suppress evidence stemming from a search of her trash. We reverse. Issues 1 Harlow raises two issues, which we reorder and restate as: I. Whether the trial court erred in that the elected judge ruled on the motion to correct error despite a commissioner presiding over all previous hearings on the case without objection by the State; and Whether the police violated Harlow's rights under the Indiana Constitution against unreasonable searches and seizures in searching her trash. Facts and Procedural History On January 7, 2005, the Indianapolis police received an anonymous call from a citizen reporting that a person known as Harlow was dealing drugs from 1229 South Manhattan Avenue.2 Hesitant to provide any other information, the caller suggested the police watch the home and "draw [their] own conclusion." State's Exhibit 1. Based on this tip, two police officers watched the home on successive Thursday nights from 10 p.m. until 7 a.m. the next day. They observed several different vehicles come and go, some vehicles from as far away as Evansville, Indiana. During these observation periods,

II.

1

Similar issues were raised on appeal by Harlow's husband, facing similar charges resulting from the same trash search, and were addressed in the memorandum decision Harlow v. State, No. 49A02-0605-CR-397 (Ind. Ct. App. February 6, 2007). The parties stipulated that the affidavit for the warrant and the search warrant itself were admissible for the motion to suppress hearing.

2

2

the police officers attempted to pull the trash bags from the home, but were unable to due to "the daylight and the activity." Id. In mid-March of 2005, a second citizen called the Indianapolis police to anonymously report that the resident at 1229 South Manhattan Avenue was dealing and cooking methamphetamine in the home. This second tipster alleged he had personally seen ounces of methamphetamine in the home. On March 25, 2005, the two police who had been observing the home set out to make another attempt to pull trash set out for pickup. The trash was set out at approximately 7:30 a.m. The policemen were able to locate and obtain the help of the area trash truck driver to assist them in collecting the trash from the home so that it could be searched. The driver placed the trash from the residence in the truck's empty front scoop and transported the five bags to the pickup truck the police had waiting. The five trash bags were taken to the State Police Drug Enforcement Section office and searched. Two large marijuana plant stems, several baggy corners, several baggies with corners cut from them, two empty bottles of The Works tub and shower cleaner, two packages of empty lithium batteries, coffee filters with no coffee residue, and two pieces of mail addressed to Harlow were found in the recovered trash. The police applied for and received a search warrant for the home based on the information gathered by the investigation. The State charged Harlow and her husband John with Conspiracy to Commit

3

Manufacturing

of

Methamphetamine,

as

a

Class

A

felony, 3

Manufacturing

Methamphetamine, as a Class A felony,4 Possession of Chemical Reagents or Precursors, as a Class C felony, 5 and Possession of Marijuana, as a Class A misdemeanor.6 Harlow moved to suppress the evidence obtained from the warrantless trash search. A duly appointed commissioner of the trial court ("the Commissioner") held a hearing on the motion and granted it on November 29, 2005. On December 13, 2005, the State filed a motion seeking a hearing on good faith, which was denied by the Commissioner on January 27, 2006. On February 27, 2006, the State filed a Motion to Correct Errors and a Motion to Have Presiding Judge Rule on Motion to Correct Errors. On March 31, 2006, the presiding judge held a hearing on the State's motions and reversed the previous rulings of the commissioner in granting the motion to correct errors and denying Harlow's motion to suppress. The interlocutory appeal ensued. Discussion and Decision I. Transfer of Case to Elected Judge Indiana Code Section 33-33-49-32(c), which became effective on July 1, 2005, provides in part: A party to a superior court proceeding that has been assigned to a magistrate appointed under this section may request that an elected judge of the superior court preside over the proceeding instead of the magistrate to whom the
3

Ind. Code

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