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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: JOEL M. SCHUMM Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0605-CR-397

APPEAL FROM THE MARION SUPERIOR COURT The Honorable William Young, Judge Cause No. 49G20-0503-FA-052009

FEBRUARY 6, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION ROBERTSON, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant John Harlow ("Harlow") brings this interlocutory appeal from the trial court's order granting the State's motion to correct error and denying Harlow's motion to suppress. We reverse. ISSUE Harlow states the issues as: 1. "May a party request the presiding judge to rule on a motion to correct error several months after the omnibus date and after receiving two unfavorable rulings from a properly appointed magistrate when the Indiana Code requires such a request be made no later than ten days after the omnibus date?" 2. "Is the seizure of an individual's trash unsupported by the requisite reasonable suspicion if predicated on two anonymous tips over the course of several weeks and nonspecific police observation of vehicles coming and going from a residence?" FACTS The police received a tip from an anonymous informant that a person known as Harlow was dealing drugs from his residence. The informant told the police to watch the residence at 1229 S. Manhattan Avenue and draw their own conclusions. The police watched the residence for an undisclosed number of Thursday nights and Friday mornings between 10:00 p.m. and 7:00 a.m. and observed people going in and out of the house at all hours of the night and morning. About ten weeks later the police received another anonymous tip from a second and unrelated citizen that the resident of 1229 S. Manhattan Ave. was dealing 2

methamphetamine as well as cooking methamphetamine at that residence. The second tipster said that the male resident at the residence cooks all the time, and he, the tipster, had seen ounces of methamphetamine in the home. In late March, the police seized the trash at 1229 S. Manhattan Avenue without a warrant. (Since there were no hearings in this matter the foregoing facts were taken from the affidavit for probable cause.) Harlow and his wife were charged with a number of offenses resulting from his arrest relating to methamphetamine dealings on March 31, 2005. Harlow moved to suppress the evidence obtained by the police from a warrantless trash pull. A duly appointed commissioner of the trial court held a hearing on this motion and granted it on November 15, 2005. On December 13, the State filed a motion to schedule a hearing on good faith, which was denied by the same commissioner on January 27, 2006. The State made no objections to the commissioner handling the case up to this point. On February 27, 2006, the State filed a motion to correct error and a motion to have the presiding judge rule on the motion to correct error. The presiding judge held a hearing on these motions on March 31, 2006, and reversed the previous rulings of the commissioner by granting the motion to correct error, and denying Harlow's motion to suppress. This interlocutory appeal follows. DISCUSSION AND DECISION Issue 1. Indiana Code

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