*1 claim that her waived her constitutional by alleged were violated process rights
due in the
procedural irregularities CHINS
proceedings. having examined
The Court said Motion Publish, having opinion reviewed its advised, being duly now
this case and finds Appellee's said Motion to Publish granted.
should be
IT THEREFORE ORDERED that IS Appellee's Motion to Publish is opinion
GRANTED and this Court's here- July on
tofore handed down Decision,
marked Memorandum Not
Publication in now published. ordered LEICHT, Appellant-Defendant,
Robert Indiana, Appellee-Plaintiff.
STATE of
No. 3402-0210-CR-840. Appeals
Court of of Indiana.
Oct. 2003.
Publication Ordered Nov. 2008.
Transfer Denied Jan.
ISSUE denying trial court erred in Whether suppress evidence be- Leicht's motion proba- failed to establish cause the State support cause to the issuance ble search
FACTS February two detectives On Department Kokomo Police went from the Carpenter investigate residence to to the Lindsay possible involvement of Car- knocked, They Lind- penter drugs. door, and the detectives say answered marijuana. the odor of burnt smelled mother, Carpenter, then Lindsay's Bonnie and allowed the detec- came to the door Lindsay her home. told tives to enter smoking marijuana. them she had been Bonnie if she Brown asked Detective residence, and allow a search of the The detectives obtained Bonnie declined. and returned. a search warrant point, At that Bonnie directed Detective marijuana" quantity "a Brown to sizable eight as well as "over her bedroom drug para- dollars" in cash and hundred then (App.839). Bonnie was phernalia. at her resi- by the detectives questioned At the at the station. dence and Office, E. Leicht Law Joshua station, provided a sworn state- she also Kokomo, Appellant. ' ment. Carter, Attorney General Steve Rood, present who was Detective Schuster, Indiana, Deputy At- Nicole M. station, of Bonnie at the questioning General, Indianapolis, Appellee. torney cause to an affidavit for prepared The affidavit a search warrant.
obtain officers had smelled the specified that two OPINION Carpenter at the of burnt odor DARDEN, J. warrant and obtained a search residence The affidavit also con- for the residence. following facts. When the war- tained the THE CASE STATEMENT OF served, that she Bonnie "advised rant was interlocutory brings this Robert Leicht marijuana in the residence have did trial court's denial of his appeal of the illegal drugs"; money to the sale of related suppress. motion to individually containing bag them "a bags" appeared wrapped plastic affirm. We marijuana; contain and "stated she aiding, inducing causing dealing wanted in mari provide juana; dealing marijuana, information cooperate to us all class gets hearing, C felonies. After a about the the trial court *3 probable found charge cause to Leicht and from." Bonnie identified (App.66). a warrant issued for his arrest. as the who her the mari- juana sell, to and she the location 11, 2002, July On Leicht filed a motion description and of his residence. Bonnie suppress to the evidence "seized from [his] history described an extensive of her deal- 12, 2002," February residence on alleging Leicht, ings initially buying by with from it that the cause affidavit submitted marijuana by the "getting the ounce to the for that search warrant "consisted almost [Leicht]," it pound selling and for with entirely hearsay of uncorroborated from" quantity details about two levels of and Bonnie and "failed to establish the exis- $6,100 corresponding prices-$900 per tence of cause sufficient to war- pound. Bonnie (App.67). admitted she rant the issuance of the search warrant." marijuana had even delivered from Leicht (App.27). The trial court heard evidence night Hill "the a Derrick he was killed." hearing at a September on 2002. Bon- being present Id. Bonnie described at nie testified that after the detectives re- "approximately Leicht's residence four turned to her residence with the search ago" and witnessing delivery months the of warrant, she quantity them a sizeable twenty-pound "crates" that contained marijuana of from the safe her bedroom marijuana, "bricks" of and how she "made and some cash. She further testified that just two dollars delivering" thousand from during questioning by her police, the one of the bricks. Id. Bonnie explained to," simply was "talked there "was no she was being when "close to out" of threatened, pressure," she did not feel and sell, she would "call [Leicht] testimony her to them "freely and bring and he would either pound her a of 42). voluntarily given." (App.40, Detec- marijuana to sale or she go [sic] tive Rood testified of his personal knowl- it," and get just residence and that two Hill, edge that Derrick a recent homicide days prior to her encounter po- with the victim, major had been "a dealer" who had lice, brought pound Leicht had her "one of possessed pounds several marijuana to sell." Id. near (App.42). the time his death.
The trial court found "that The trial court concluded that the affida-
vit
stated"
the affidavit
established
it
[was]
and
because
issued
search warrant for Leicht's resi
gave the "basis of
knowledge,"
[Bonnie's]
property
day,
dence and
that same
Febru
in that Bonnie had
posses-
been found in
ary
(App.60).
April
On
sion of a
quantity marijuana,
substantial
the State filed a
cause affidavit
[Leicht],"
trafficking
"was
"gave
for a warrant
charges
to arrest Leicht on
penal interest
in con-
that he had
the
committed
offenses of nection with sale to the man who was
murdered,"
conspiracy
dealing marijuana;
eventually
to commit
"told
past
about
(20)
got twenty
1. Attached to the affidavit
pounds";
was the statement
when [she]
that she
Bonnie,
go
pick
up
would "either
to his house and
it
pains
who swore "under
penalties
perjury"
selling
that she had
house";
been
bring[{
[would]
]
or he
it to [her]
drugs
just
days prior
who "fronted" her the cost
two
to her encounter with
marijuana;
of the
that she had been so en-
police,
brought
Leicht had
her the mari-
"months,"
gaged
originally obtaining
juana
she had in
"like
to sell.
21,22).
(App.25,
(5)
pounds
very
five
a week until
end
(1)
have evi-
did not
which the
reliable
information
estab-
conduct
contain
lishing
of the source and
evidence in hand
did not have
on or
dence
hearsay
of each of the declarants of the
investigated
she could
for which
a factual
establishing
there is
had "an
and that she
charged,"
possibly
furnished; or
basis for the information
Leicht.
relationship" with
ongoing
(2)
(App.61).
contain information
establishes
totality
circumstances
hearsay.
corroborates the
DECISION
85-88-5-2(b).
Thus,
hearsay
I.C.
and state constitu
The federal
*4
hallmarks of reliabili-
"must exhibit some
will not issue
that a court
guarantee
tions
ty."
met Leicht and the of their con- crimes" was sufficient to establish the credibility tact, of the declarant whose state- and the detailed account delivery containing truck's of crates bricks ments were used in the to Leicht's residence. affidavit search warrant. Subsequent Phillips, supreme our
Further, many of the statements squarely court held that "[dlJeclarations that the affidavit attributes to Bonnie were against penal interest can furnish suffi- against interest. A statement cient for establishing penal the declarant's interest is of an meaning informant within the subject one that so far tends to the declar- 85-83-5-2(b)(1)." IND. CODE Houser liability ant to or criminal civil that a rea State, (Ind.1997). 100 sonable position the declarant's Houser, because the declarant was incrimi- would not have made the statement unless nated his statements that "suggested a believing it to be true. Jervis v. conspiracy between" the declarant and the (Ind.1997) N.E.2d (citing Ind. Evi subject warrant, of the search the declar- 804(b)). dence Rule ant was found to be "a credible source." *5 State, v. Nash 433 N.E.2d 810 Id. (Ind.Ct.App.1982), we held that statements Nash, Houser, in Just as Phillips, and against penal the declarant's interest "con Bonnie implicated herself in the commis- eredibility stitute an indicia of which sion dealing marijuana of as well as con- in ascertaining credibility used of spiracy to deal offenses. Under an informant provides whose information law, recognized this established a basis the basis of an affidavit" for a search for concluding that Bonnie awas credible There, the declarant's statement source and that the pro- information she "admitted the burglary," commission of a vided was reliable. and burglary "the fact of the was corrobo by rated victim." Id. We found this to With appropriate being given deference be "sufficient foundation to judge establish" the to the who issued the search war declarant's credibility. Similarly, rant, Id. in conclude that we there was a sub State, Phillips v. 514 N.E.2d 1075-76 stantial upon basis which to conclude that (Ind.1987), the fact that the declarant "im there was cause to believe that plicated himself in the crimes and trafficking marijuana evidence of in might information that could have been be recovered at Leicht's residence and only by one who in property.2 was involved Accordingly, the trial court did seriously tion were by Newby not 2. We are aware of corroborated either FACTS, (Ind.Ct.App.1998), upon 593 which the dis officer. Id. As noted in there was a plethora However, of information and detailed facts sent relies. we believe the facts presented in Officer Rood's Newby readily cause circumstances of are dis tinguishable from those in the instant case. Further, affidavit for the search warrant. af panel judges Newby The in found that the present fiant Rood was for and witnessed affidavit for signing cause therein was based Bonnie's of a statement she made upon "hearsay hearsay." pains within penalties "under the perjury" Specifically, affiant-police at 598. providing officer the facts to which Rood swore in Newby who obtained the search warrant Thus, in the affidavit. we believe the affidavit based his assertions in the upon facts magis which a neutral upon affidavit safely rely information from statements trate issuing could in a search allegedly made so-called "confidential totality warrant. We further find the police informant" to another officer and presented circumstances did warrant a neu reliability whose magistrate's of informa tral and detached belief that to reveal in and his decision sup possession, motion to Leicht's denying not err subject not him police to the did his source press. liability." Id. at any additional criminal affirm. We Moreover, that neither of we noted Calloway spoke to whom police officers J., SULLIVAN, concurs. relayed to them facts "corroborated J., BAKER, separate dissents Newby illegal Calloway that connected opinion. observation activity" through personal BAKER, dissenting. Judge, Id. at 601. techniques. other majori- from the dissent respectfully I Newby, the cireumstances Similar to a substantial that "there was ty's holding drug supplier about her Bonnie told there conclude that which to upon mari- officers found only after the that evi- to believe decision to juana in home. Bonnie's her marijuana might be trafficking in dence subject not her to did divulge her source prop- Leicht's residence at recovered liability inasmuch enhanced criminal I --. believe p. Specifically, erty." Op. already posses- under arrest for she was already ap- Bonnie was inasmuch as marijuana. id. at 600. See sion marijuana, prehended that Bonnie's statements claims State regarding made any statements prosecution to criminal subjected her penal interest. not were marijuana, I but conspiracy to deal State, 701 Newby I note juris- jeopardy that our double maintain compels a (Ind.Ct.App.1998) N.E.2d convictions for not allow prudence would *6 advanced than that outcome different to deal conspiracy of and possession both case, Calloway majority. Steve marijuana found "crop" of in the same was arrested Guyton home. officers Calloway told cocaine. Richardson, (Ind.2002) (citing drugs and Newby his source for was (Sullivan, J., concur at 55 Calloway to work as an informant. agreed Indiana Constitution's ring)) (holding that address, Newby's officers gave police "conviction jeopardy prohibits double obtained a search the officers of a an enhancement punishment residence, Newby's found at Drugs were imposed is the enhancement crime where contended, was and he Calloway had as harm as very same behavior filed a motion Newby then arrested. the defendant crime for which another used to that the affidavit alleging suppress, punished."). convicted has been warrant lacked the search obtain in this Moreover, Newby, Newby's trial court overruled cause. The state Bonnie's not corroborate case did interlocutory appeal ensued. an motion and observation. through personal ments Calloway's declara argued The State as statements note that inasmuch from I also drugs purchasing regarding tion form penal interest against Cal- Newby constituted statements ex- affidavit, required to logic for an interest, thereby making loway's penal are believa- Bonnie's statements reversed, plain why holding that them credible. We anonymous peril. with fraught is drugs ble already "caught Calloway was anticipatory event to occur enough probable cause existed to believe ing upon some activated. could be the warrant before taking place time activity at the criminal rely- was issued-without the search warrant tip of a citizen informant sufficiently is not Publication is now ORDERED PUB- trustworthy to issue a warrant unless his LISHED.
credibility has been established or the to-
tality of the circumstances show that his are true. Ind.Code 35-33-
5-2(b). statements, according Bonnie's theory, inherently
the State's are believa-
ble possibly subjecting because she is her- greater penalties.
self to The difficulty is, however, reasoning with this that Bon- SHANABARGER, Ronald L. "caught marijua- nie was red-handed" with Appellant-Defendant, na in argument her home. The State's thus creates Through-the-Looking- Glass scenario that even Lewis Carroll Indiana, Appellee-Plaintiff. STATE of envy: A criminal's "confession" that No. 41A05-0207-CR-327. purchased
he cocaine while in the Oval Office at the White House is somehow Appeals Court of of Indiana. more believable than an anonymous tip being cocaine is Oct. 2003. sold out of the aban- doned house on the corner. Our criminal Transfer Denied Jan. justice system is ill-served such logic.
I would reverse the trial court's denial of
Leicht's motion to suppress.
ORDER counsel,
The Appellee, by has filed a
Verified Motion for Publication of Memo-
randum Decision. Counsel states that this opinion
Court's clarifies the law in-
volves issues of public substantial impor-
tance, which meets the criteria as set out 65(A). Further,
in Appellate Rule the deci- provides guidance
sion on what constitutes
probable cause sufficient to warrant
issuance of a search warrant. Counsel
prays for an order publishing this Court's
October 2008 Memorandum Decision.
Having matter, reviewed the the Court
FINDS AND ORDERS AS FOLLOWS:
1. The Appellee's Verified Motion for
Publication of Memorandum Decision is
GRANTED, and opinion this Court's
handed down on October Decision,
marked Memorandum Not for