*1 dragged approximately eight Dubois him
ten feet. agree
While we that this evidence estab- by Ajabu,
lishes some resistance the record any
fails to disclose evidence from which a
reasonable trier of fact could conclude be-
yond Ajabu reasonable doubt acted
forcibly, supreme as defined our
Spangler.5 merely The evidence shows that
Ajabu resisted claiming Officer McDonald
ownership holding flag. onto his any
record not does reveal evidence that
Ajabu threatening made or violent actions police.
toward the Based on the evidence in record, compelled we are to hold that the at trial were insufficient to Ajabu’s guilt beyond
establish a reasonable
doubt.
Judgment reversed. ROBB, JJ.,
GARRARD and concur. BREITWEISER,
Chad W.
Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE of
No. 52A02-9806-CR-545. Appeals
Court of of Indiana.
Jan. 5. The State pulled cites Small v. away began N.E.2d 779 dant grasp, from the officer's denied, (Ind.Ct.App.1994), example away trans. as an to walk and then struck the officer in tire "distinguished analyzed” of a case that again chest with his fist. The defendаnt fled. Spangler. Appellee’s apprehended Brief at 7. they began The officer him and inapposite facts of Small are struggle those in the wrestle in the street. The continued in a Small, instant case. moving the defendant led car with both the defendant and the chase, on a foot a car chase and half-way hanging then another officer "still out of the car.” finally foot chase. When an officer was any able to Id. at similarity 781-82. We fail to see arrest, inform him that he was under the defen- between Small and the case at hand. *2 Modisett,
Jeffrey Attorney General, A. Fossum, Deputy Attorney Priscilla J. Gener- al, Indianapolis, Appellee-Plaintiff. for OPINION DARDEN, Judge. THE CASE
STATEMENT OF appeals Chad Breitweiser his convictions possession maintaining common The sole issue raised on nuisance. appeal is the trial court whether erred denying suppress motion to evi- Breitweiser’s during execution of a dence seized warrant at his residence.
We affirm.
FACTS 25,1997, On officers Department Peru went Police before Court, requesting of Miami Circuit for search warrant be issued a resi- dence located at 382 East Main Street Peru, application support Indiana. for the search Indiana State Police Marks, Crime Scene Technician Dean who years experience has had than fifteen more identifying marijuana, hearing testified at the follows: as Q go through And these at a we will one time, Main, all 382 East first you pick were involved in trash [t]he up there?
A Yes.
Q On dates? what A 2-10 of’97.
Q And substance then found in as to the location, any what if trash at you thought or substances to be there? Yes, A remnants of like there trash, along fragments personal mailing with miscellaneous papers names of Tama and with Chad Breitweiser. you
Q you And the items that did send marijuana to the Indiana thought to be State Police Lab? Maternowski, Indianapolis, Andrew C. Yes, A
Appellant-Defendant. I did. Q you asserting And have lab rеsults received back that the information
on that?
warrant was too stale to
cause. The trial court
Yes, they
positive
c[a]me back
motion, expressly finding
denied the
that “[i]t
marijuana.
that,
is not unreasonable to conclude
because
*3
Q
you again pick up
Then did
the trash
February
was found on
10 and
February
from that location on
17th of
17,
February
1997 that
would alsо
1997?
be
in the home at
the time the
A Yes.
25,
February
warrant was issued on
1997.”
what,
Q
you
if anything,
And
did
find in
(R. 36).
subsequently
Breitweiser was
con-
the trash on that date?
charged.
victed as
Again
A
plant fragments,
ap-
what
peared
possible marijuana
to
in
DECISION
trash.
[t]he
Breitweiser contends that the search of his
Q In
particular
you
situation did
find
residence was in
violation
both the federal
pretty large quаntity?
... a
and state constitutions because the search
A Yes we did.
without a
issued
Q
large quantity
How
a
it?was
Specifically,
argues
cause.
he
ranging
up
A Numerous
in
stems
size
eight-day period
because there was an
be-
six,
possibly
eight
long
inches
stuffed
police
tween when the
last recovered mari-
in a cereal box.
juana plant fragments from his trash and the
warrant,
issuance of the
the information ob-
Q
on,
your
And
based on
visual examina-
tained
the officers was stale and did not
17,
tion of the trash on
disagree.
constitute
cause. We
you
opinion
do
have an
as to whether
or not
there
in
was
Fourth
The
Amendment to the Unit
trash on that date?
I, §
ed States Constitution and Article
11 of
Yes, my opinion,
I believe it to be
require proba
Indiаna Constitution both
marijuana.
ble cause for the issuance of a search war
Q
you
And are
familiar with how that
rant and the
exclusion
evidence obtained
location 382 East Main was selected
illegal
due to an
or
Figert
seizure.
v.
why
...
was 382 East Main selected State,
(Ind.1997).
827,
686 N.E.2d
833 n. 1
anonymous
A An
source.
determining
whether to
issue
(R. 21-22).
information,
Based on this
warrant,
issuing
“[t]he task of the
judge
аuthorizing
issued a warrant
a search magistrate
judge]
simply
[or
is
to make a
“marijuana
para-
of the residence for
and/or
practical,
whether,
common sense decision
phernalia
pertaining
sales records
and/or
given all the circumstances set forth in the
(R. 18).
illegal drug activity.”
testimony],
proba
[or
affidavit
there is a fair
The
executed the sеarch warrant at
bility that contraband or evidence of a crime
residence on
three
will be
in particular place.” Jaggers
During
after the warrant was issued.
(Ind.1997)
search, police
thirty-nine
seized
live
Gates,
(quoting
213, 238,
Illinois v.
462 U.S.
plants,
na
cigarette containing
hand-rolled
2317, 2332,
(1983)).
103 S.Ct.
As the cases tion at the residence. Both activities consti activity protracted continuing character of the criminal under in tute crimes of a vestigation important an keeping is factor to consider nature. with our deference to a determining when whether contraband or the or trial court’s determination of particular evidence of a crime is still in a we conclude that there was a place. merely an affidavit Where recites an substantial basis for the trial court’s deter crime, Ashley, mining isolated as in time between that cause existed under the the occurrence and the issuance of the war- facts of case.2 See, i.e., Johnson, argues Ashley compels State v. 531 N.W.2d 2. Breitweiser rever- (N.D.1995) Ashley readily ("Drug habituating sal of this case. tinguishable is dis- can use First, offense.”). from the facts of this case. continuing Ashley merely single, the affidavits in recited a SULLIVAN, Judge, concurring.
Alternatively, alleges that Breitweiser cause existed when if even I concur in the affirmance of the denial of issued, any probable search suppress. doing Breitweiser’s motion to dissipated the time exe cause had so, however, I would make two additional three later. the search warrant cuted observations. § 35- recognizes that Ind.Code Breitweiser law, In the context of our criminal I.C. 35- 5—T(b)only obligates enforcement of law 33— “any part defines as 48-1-19 within ten execute a search warrant ficers to ... does not include the ma- [but] issuance, argues but days after the date of plant”. ture stalks of the not establish that the the statute “does commonly The -word “stem” most de- is information warrant is still valid when the part (usually as “the main above fined central warrant turns used to obtain the search ground) plant.” of a tree or shrub or stale, or, that the staleness caused because of Dictionary (1980). American OxfoRd delay receipt from by the execution or identically “stalk” is almost The word defined warrant, the facts to the issuance of Id. at 665. plant.” “the main stem of a Appellate’s was still reasonable.” similarity of definitions is not new. these however, above, Brief, p. 9. As noted tеstimo Dictionary International Webster’s ny hearing permitted the reasonable (2d ed.1943) “[t]he defines “stem” as opera cultivation inference that axis, trunk, body main of a tree or other residence. Bre tion existed at Breitweiser’s stem or main axis plant” “[t]he and “stalk” as points nothing, other than the itweiser plant.” synon- of a The words are therefore days during periоd be passage of three ymous. and execution of the tween the issuance case, Marks, Dean crime In the instant which affected Police, technician for the Indiana scene State gave police probable cause to search which *6 police “plant fragments” that prob the initial testified home. We conclude that his in a seаrch trash on Feb- of the of the defendant’s able cause the issuance ruary at It 1997. 704 N.E.2d 497-498. to exist at the time warrant continued search, appears fragments the mentioned were despite three-day delay in the of the Thus, the “numerous stems.” defendant its execution. argued appeal have the trial could conclusion, judge properly issued improperly its cause based upon of search warrant finding upon discovery subsequent execution and the officer’s legally mar- material which did not constitute timely. Accordingly, ijuana. mo- properly denied Breitweiser’s trial court may, appellant argu- it made no Be that as suppress.3 tion to effect, and it is therefore not ment to affirm. We of the which invalidates the issuance factor Furthermore, it search warrant issue. RUCKER, J., concurs. discovery part argued that of a of a could be SULLIVAN, J., marijuana separate plant which is itself not concurs with might permit a reasonable court opinion. nevertheless pertaining illegal drug activity. drug where- records transaction at the residence sales isolated as repeated Further, Thus, alleged present case revealed Ashley facts in does not address the issue stale- drug activity period of time. over drug regarding parapherna- when evidence ness Ashley merely to the the affidavits in led sought. drug sales are also lia and evidence of conclusion that small amounts personal present in the for use or residence we find that the information 3. Because permit- case sale whereas the facts in judge's was sufficient to to the ongoing mari- ted die conclusion that there was to issue the search cause Finally, juana cultivation at the residence. parties’ argu- we need not address Ashley merely sought the warrant to officers in good excep- concerning faith whеther the ments whereas the officers in the search present only sought applies. case a warrant to search not tion paraphernalia and but also for instance, to conclude that cause may exists to required we well be to afford a believe that itself will be degree of deference to the conclusions the site where the stаlk was found. reviewing reached court. day. issue is for another regard With to the standard of review matters, appropriate such it is to set forth I in the concur affirmance of the trial the “deference test” set forth in Houser suppression ruling court’s and in the affir- (1997) Ind., Here, State mance of the conviction. Houser, as in first reviewing court af- firmed the Upon issuance the warrant.
review, therefore, give we also deference to original probable cause determination. may quite
It' well different if the first grant
review results of a motion to
suppress effectively and therefore invalidates
the issuance of the warrant. this latter