State cannot overcome calendar in appeal of suppression order

Although the state was able to get a trial court to reconsider the suppression of cellphone evidence in a rape trial, it could not convince the Indiana Court of Appeals that its pursuit of an interlocutory appeal was timely.

Tippecanoe County Sheriff’s Department applied for a search warrant after a woman accused Luke Fahringer of taking her against her will and forcing her to submit to a number of sexual acts.

Investigators filed for a search warrant but before it was granted, they encountered Fahringer. Law enforcement informed the defendant he was free to leave but that they were getting a search warrant and wanted to take custody of his cell phone. The woman told the sheriff’s department that Fahringer had used his cell phone to take a picture of her identification card and threatened to kill her family if she reported the offenses.

Fahringer was allowed to contact his attorney before surrendering his phone. A subsequent search found the photo of the woman’s identification card. The state then charged the defendant with strangulation, intimidation, kidnapping, conspiracy to commit rape, two counts of criminal confinement and three counts of rape.

On July 6, 2018, Fahringer filed a motion to suppress the evidence found after the warrantless search of his cell phone. The Tippecanoe Superior Court granted the motion July 10, 2018.

Initially, the trial court indicated to the state that it would like the formal, written motion for interlocutory appeal filed by July 13, 2018, but granted the state’s request for additional time. On July 26, 2018, the trial court entered its written order granting Fahringer’s motion to suppress.

The state filed a motion to reconsider Aug. 21, 2018. In that filing, it presented new arguments against the suppression, including that plain view exceptions applied to the warrantless seizure of Fahringer’s cellphone.

On Nov. 19, 2018, the trial court certified for interlocutory appeal the July 26 suppression order and the Oct. 12 order denying the state’s motion to reconsider. The lower court found “good cause” to grant certification because the state had orally indicated its intention to request an interlocutory appeal. Also, the state had filed a timely motion to reconsider and had filed its request for interlocutory appeal certification within 30 days of the denial of that motion to reconsider.

However, in State of Indiana v. Luke Bryon Fahringer, 18A-CR-2985, the Court of Appeals agreed with Fahringer that the trial court abused its discretion in certifying its suppression order.

The appellate panel found even if the state’s oral notification of its intent to pursue an interlocutory appeal had been considered a request for certification, the deadline for filing would have been Aug. 9, 2018.

Moreover, the Court of Appeals found the state was not able to toll the time by filing a motion to reconsider rather than immediately filing a request for certification of the suppression order. And the appellate court brushed aside the state’s contention that because it argued different grounds in the motion to reconsider, the trial court could create a new, appealable order by ruling on that motion.

“We find that the State has not presented us with any extraordinarily compelling reason to disregard its failure to pursue timely certification of the trial court’s suppression order, and we dismiss this appeal for procedural default,” Judge Patricia Riley wrote for the court.