*1 occasions, is an this too appropriate other depart from occasion
appropriate As Court of stare decisis.
doctrine in this case:
Appeals observed damages punitive to allow illogical
[Lt but not injury actions personal per- cannot actions. We
wrongful death cheaper to adage that it is
petuate the regard general kill than to maim with actions.
wrongful death . Int'l, v.
Durham U-Haul agree. (Ind.Ct.App.2000). gen- conclusion, reading fair supports statute wrongful death
eral punitive allow that would
interpretation punitive extent that
damages to the same inju- personal are recoverable
damages au- prior case To the extent
ry actions. otherwise, it be over- should
thority holds respectfully dissent.
ruled. I therefore
DICKSON, J., concurs. QUERY, Appellant David
Louis
(Defendant Below),
v. Indiana, Appellees
STATE of
(Plaintiff Below).
No. 49S02-0008-CR-00502. Indiana.
Supreme Court of
April *2 if new search warrant information under-
mining cause that warrant is discovered after the war- granted rant has been but before it has been executed. We hold that where the State learns a material fact establish- ing underlying a search incorrect, warrant is obliged State is inform, of the new and, so, facts if it fails to do the warrant is per Informationis if material it se:invalid.' might affect either the issuance of the warrant, or the of the warrant. We find this presents extremely an un- example usual change. immaterial Although the new information undermined suggested by the crime supplied to provided it also crime, and, cause for a second if a issued, second search warrant had been would have authorized to been search virtually the same location for iden- tical items. Background
Factual and Procedural Greenwood officer Fil- Matthew lenwarth worked with a confidential infor- mant on arrange October purchase of methamphetamine from Louis Query. David super- The informant was vised purchased Fillenwarth as he powdery white Query. substance from Fillenwarth conducted two field tests determine the nature of the substance. Terry IN, R. Curry, Indianapolis, Attor- The first negative test was for controlled ney Appellant. for substances and the second indicated that substance contained methamphet-
Jeffrey Modisett, A. Attorney General of amine. Indiana, Andrew D. Hedges, Thomas Per-
kins, General, Deputy Attorneys Indianap- Based Fillenwarth's prob- affidavit of olis, IN, Attorneys Appellee. for a magistrate issued a search Query's warrant for apartment on Novem- ON PETITION FOR TRANSFER ber 1998. On November Fillenwarth
BOEHM, Justice.
laboratory
learned that a
test had deter-
purchased
the circum mined that the substance
from
This case
deals
any
did not contain
controlled sub-
stances
under which the State must
obtain
consulted
day, Fillenwarth
That
of Review
stance.
Standard
prosecutor
County deputy
awith
Johnson
deciding
whether to issue a
was still
that the warrant
assured
and was
"(tlhe
warrant,
issuing
search
task of the
the warrant
good. On November
simply
practical,
to make
of uneut
eighty-one grams
executed
whether, given all
decision
*3
commonsense
Query's apartment.
in
cocaine were found
forth in
the cireumstances set
the affidavit
was found.
methamphetamine
No
probability
...
there is a fair
that contra
of a crime will be found
band or evidence
in
dealing
co-
Query
charged
was
with
Gates,
in
Illinois v.
particular place."
Query
of cocaine.
possession
and
caine
2317, 76
462 U.S.
103 S.Ct.
the cocaine. The
suppression
for
of
moved
(1983).
duty
L.Ed.2d 527
The
of the re
motion, reasoning
trial court denied the
viewing court is to determine whether the
that,
although
issuing
the
had a "substantial
for
basis"
informed that some of
have been
should
concluding
probable cause existed.
that
prob-
contained within the
the information
Id.,
288-39,
It
at
Query argues that the cocaine dis
it is not a "material" one
4
justified
covered in the November
search must be
because the old information
a
suppressed
police
because the
were re warrant for
virtually
the same location and
quired
pur
to disclose that the substance
end,
the
same items.
the
the officers
exactly
they
chased
the confidential informant was
did
what
would have done
methamphetamine.
anyway
not
contends
to execute a warrant based on the
that
establishing
original
where the information
new information.
the
Under
warrant,
found to be
police
empow-
cause is
incorrect
search
the
were
after the search warrant is issued but be
ered to
"[mljethamphetamine,
search for
executed,
paraphernalia
fore it is
and the
is
ingest
used to deal or
meth-
documents, notes,
amphetamine, any
informed,
rec-
per
the search warrant
is
se
ords, scales,
invalid.
money
any
or
indicia of use of
dealing methamphetamine."
or
in
Meth-
find no
in this state or in the
We
amphetamine,
powder,
a white
is identifi-
directly
point.
federal courts
The See-
only through
analysis.
chemical
To
ond
that
the
Circuit has held
where
eye,
powder
the naked
a white
that actual-
underlying magis
discover that a fact
a
ly methamphetamine
pow-
and a white
trate's
determination of
cause for
der that is not are identical. Because the
issuing a
materially
search warrant is
dif
seope
nature and
of a search for metham-
ferent
than
it
originally thought,
is the
phetamine is identical to the nature and
officers,
executing
not the
who
look-alike,
seope of a search for a
the
must determine whether
correcting
information
this case does
view,
still exists.
with which
Under
change.
not constitute a "material"
agree,
we
the
must be made
any
note, however,
aware
correcting
important
"material" new or
It is
Marin-Buitrago,
validity
information. United States v.
both
of the search
(2d Cir.1984).
4
F.2d
894
must be unaffected to render the informa-
73
typical
The
formulation of
"material" facts
presents very
tion immaterial.
This case
they
is that
cast doubt on the existence of unusual facts. We do not intend to en-
at
(citing
courage
cause.
Id.
United
prosecutors
or
to withhold
Dennis,
(8th
States v.
625 F.2d
correcting
magis-
new or
information from
Indeed,
Cir.1980)).
trates.
it is difficult to think of
The new information and the
are
affidavit
to be con
another circumstance in which new infor-
destroy probable
United mation
cause for
sidered
(citing
as
whole.
support
'of the usual inferences
ment
time,
and,
create
the same
crime
one
men draw from evi-
where
which reasonable
another crime
cause for
protection
requir-
consists in
dence.
Its
resulting search
parameters
drawn
ing those inferences be
neu-
Police who
would be identical.
either case
magistrate instead of
fully
tral and detached
keep the
do not
being judged by
engaged
the officer
correcting infor-
any new or
informed of
competitive enterprise
of fer-
often
risk that
mation run the
Any
reting
assumption
That
out crime.
material.
found to have been
will be
support magis-
evidence sufficient to
validity
if
result
either
will be the
to is-
If
trate's disinterested determination
was affected.
scope
of the warrant
justify the
held
sue a search warrant will
so,
will be
original
search warrant
making
without a
sup-
officers
search
of that search
and the fruits
invalid
would reduce the Amendment
warrant
pressed.
nullity
people's
to a
and leave the
homes
Conclusion
in the discretion of
secure
af-
the trial court is
judgment
right
privacy
officers.... When
firmed.
yield
right
reasonably
must
rule,
is,
by a
search
as a
to be decided
DICKSON,J.,
SHEPARD, C.J., and
*5
officer,
by
policeman
a
or
judicial
concur.
agent.
government
enforcement
J.,
separate
dissents with
RUCKER,
(footnote
13-14,
omit
367
Id.
68 S.Ct.
SULLIVAN, J., concurs.
opinion in which
ted).
States,
Wong
v. United
See also
Sun
Justice,
RUCKER,
dissenting.
481-82,
407,
471,
9
83 S.Ct.
371 U.S.
(1963)
that the
(bolding
L.Ed.2d 441
Unit
effectuating
In
respectfully
dissent.
"that the
requires
ed States Constitution
command
the Fourth Amendment's
deliberate,
judicial
a
impartial
of
judgment
issue,
proba
shall
but
"no Warrants
the citi
interposed
...
between
officer
be
cause,"
Supreme
the United States
ble
...").
police.
zen and the
a
and
long required that
neutral
Court has
police
a
offi
magistrate-not
detached
Arti
has held that
Similarly, this Court
probable
of
cer-make
the determination
1,
11 of the Indiana Constitution
cle
Section
City
Tampa, 407
cause. Shadwick v.
that a neutral and detached
requires
1
of
2119,
32 L.Ed.2d
U.S.
92 S.Ct.
make the determination
(1972). The Shadwick court defined
rel. French v.
cause. State ex
783
as "severance and
Court,
"neutral and detached"
Hendricks
Superior
Hendricks
activities of law en
disengagement
223,
519,
from
213,
247 N.E.2d
County, 252 Ind.
explained
Jackson
(1969)
forcement."
Justice
long standing
"it
a
(declaring
is
separation
John
importance
of this
that the determination
rule
Indiana
States, 333
68 S.Ct.
son v. United
U.S.
judicial
a
determination
cause is
(1948):
367,
underscored officers, judicial opposed problematic as because it runs afoul ment that of both officers, determine the existence of the United States and Indiana constitu- guarantees cause: tional that a neutral and de- tached determine the existence judges magistrates and au- State Instead, cause. it leaves into thority to issue have received warrants very "actively hands those who are legal They full educations. often have investigating involved in crime" the [the] experience prac- in the had considerable determination of whether the new informa- law; they subject to the tice of are Code tion is material and thus whether Moreover, judges of Judicial Conduct. differently, cause exists. Stated when politically magistrates generally and are discovered, police new fact is officer-or ways answerable to their communities a prosecuting attorney-is this case officers are not law enforcement one who will determine whether it is mate- are, therefore, judicial officers more magistrate's probable rial to the cause de- likely general to understand the mores termination. This means that when a regarding behavior. This reasonable that a newly officer finds discovered preference for is based on the warrants fact magistrate's proba- is material that a neutral and mag- belief detached ble cause determination will that fact even likely istrate is more to be a fair evalu- get relayed be- ator of relevant cireurastances than fore execution of the search warrant. actively in in- officer involved my view this is incorrect. a magis- This is vestigating particular crime. investigating trate's call and neither the (Ind. officer nor this engage State, Court should Brown v. 1995) (footnote omitted). speculation on whether *6 found that have cause still In this magistrate issued war- presented exists had the been rant methamphetamines for the search of with this new information. representa- based an officer's sworn presence tion that a field test revealed exception, Rather than carve out an However, illegal drug. before the duty would hold that an officer has a warrant was executed the officer learned report any new or cor- laboratory that a presence test showed the recting information that origi- defeats the of no controlled substance at all. Consis- underlying nal magistrate's basis for the tent with operating procedure standard in issuance of a search warrant. Because jurisdiction, the officer contacted the case, done I would prosecutor local with this new information. trial Query's reverse the court's denial of Rather than pros- alert the suppress. motion to gave go-ahead ecutor the officer the
execute Carving the warrant. out an ex- SULLIVAN, J., concurs. ception to requirement that a neutral and detached make the deter-
mination this Court's
majority endorsed the actions of the prosecutor ground that the new Op. was not "material."
T72.