IN: After suppression of evidence, state can’t backdoor it into evidence by a testifying snitch

The search of the juvenile defendant’s backpack was illegal under the Fourth Amendment and Indiana Constitution, but the state backdoored the evidence by calling a snitch to identify it. This was part of the fruit of the poisonous tree and not an independent source. N.S. v. State, 2015 Ind. App. LEXIS 39 (January 28, 2015):

On the record before us, it is clear that the State obtained the physical evidence — the firearm and the marijuana — as a direct consequence of the illegal search of the backpack. These items were, consistent with our Indiana Supreme Court’s guidance in Pirtle, inadmissible. The State does not contend that the physical items were recovered from an independent source, but rather argues that D.M.’s testimony was admissible and any error in the admission of the physical exhibits was harmless.

“Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citing Ind. Trial Rule 61). When determining whether an error is harmless, our review is de novo, and the error must be harmless beyond a reasonable doubt. C.L.M., 874 N.E.2d at 391.

The State called D.M. as its sole witness. D.M. testified that, on the evening of May 11, 2014, N.S. was a visitor at D.M.’s home and displayed his book bag and its contents, including marijuana. D.M. also testified that, later that evening, he and N.S. broke into vehicles and N.S. stole a pistol from one of the vandalized vehicles. He identified certain of the State’s exhibits as the marijuana and pistol N.S. had secreted in his backpack. According to D.M., he had not spoken with police before the denial hearing, but had “worked out a plea agreement to misdemeanor conversion.” (Tr. 61.)

The State contends that D.M.’s knowledge of contraband was gained independent of the backpack search because he made personal observations that preceded the search. N.S. claims that D.M.’s testimony was nonetheless a product of the illegal search because D.M. would never have been questioned about the items in N.S.’s backpack absent their discovery. In short, the State focuses upon D.M. having independent knowledge of the existence of the contraband and N.S. focuses upon whether the police — independent of the search — attained knowledge of the contraband. The latter is consistent with our Indiana Supreme Court precedent.