IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained

The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to guilt. Bailey v. State, 2023 Ind. App. LEXIS 28 (Jan. 30, 2023):

[16] Bailey fails to recognize that our Supreme Court has long circumscribed fundamental-error review in cases involving allegations of unconstitutional searches. See, e.g., Swinehart v. State, 376 N.E.2d 486, 491 (Ind. 1978) (“That the evidence may have been obtained in violation of the defendant’s constitutional rights to be protected against unlawful search and seizure does not elevate the issue to the status of fundamental error that may be raised for the first time on appeal.”); see also Membres v. State, 889 N.E.2d 265, 272 (Ind. 2008) (observing that “the exclusionary rule that prohibits introduction into evidence of unlawfully seized materials is an example of a rule that does not go to the fairness of the trial”). The Court has observed that “improperly seized evidence is frequently highly relevant” and “its admission ordinarily does not cause us to question guilt.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Accordingly, the admission of unlawfully seized evidence is not per se fundamental error.

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