STATE of Indiana, Appellant-Plaintiff, v. Douglas E. SHIPMAN, Appellee-Defendant.
No. 59A01-1210-CR-471.
Court of Appeals of Indiana.
April 19, 2013.
As for the nature of the offense, after discovering seventy-nine-year-old Collier‘s body, Keller burglarized Collier‘s home and repeatedly stole from Collier while his remains decomposed outside for six weeks. Nothing about the nature of the offense warrants a reduction of his sentence. As for the character of the offender, although Keller was only twenty-two years old when he committed the offense, he has a prior conviction for conversion, which is similar to the present offenses. Keller also points out that his incarceration poses a financial hardship to his family; however, he did not have steady work when he committed the offenses and explained that he did so in part to pay his bills. We are not persuaded that the nature of the offense or Keller‘s character warrants reduction of the sentence.
Conclusion
Keller waived his right to challenge the State‘s amendment of the charging information. He has not shown that his right to a speedy trial was violated, that the admission of his statements to police was improper, or that the trial court abused its discretion in instructing the jury. Pursuant to the single larceny rule, the convictions for theft of the Social Security check and for theft of the two rings must be vacated. Although there is sufficient evidence to support the auto theft, theft, and burglary convictions, there is insufficient evidence to support the failure to report a dead body conviction as charged by the State. Keller‘s modified sentence of twenty-nine years does not violate the statutory limit on consecutive sentences, and he has not shown that his sentence is inappropriate. We affirm in part, reverse in part, and remand.
Affirmed in part, reversed in part, and remanded.
BAKER, J., and RILEY, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
Trent Thompson, Salem, IN, Attorney for Appellee.
OPINION
MATHIAS, Judge.
The Orange Circuit Court granted a motion to suppress filed by Douglas E. Shipman (“Shipman“), resulting in suppression of the evidence seized during the execution of a search warrant of Shipman‘s home. The State of Indiana appeals and presents three issues, which we renumber and restate as: (1) whether the trial court erred in concluding that the search warrant was not supported by probable cause, and (2) whether the trial court erred in concluding that the good faith exception to the exclusionary rule did not apply. Concluding that the search warrant was supported by probable cause, we reverse and remand.
Facts and Procedural History
Upon receiving this information, Indiana State Police Trooper Shane Staggs (“Trooper Staggs“) was contacted to further question K.G. Trooper Staggs informed K.G. that there could be no promises of lenience, but K.G. still informed him that he was friends with Shipman‘s two sons and went to Shipman‘s home on a daily basis. K.G. stated that he had seen marijuana inside Shipman‘s home every time he had been there except once, and even then he could smell marijuana. K.G. admitted to smoking marijuana daily, and stated that he and Shipman‘s sons had stolen marijuana from Shipman‘s safe. Other times, K.G. had taken marijuana but left cash on a counter in exchange. K.G. told Trooper Staggs that he had been at Shipman‘s home at approximately 3:00 p.m. on June 22, 2010, just two days prior. When he was there, K.G. saw four one-pound bricks of marijuana compressed in plastic packaging.
Based on this information, Trooper Staggs prepared a probable cause affidavit requesting a warrant to search Shipman‘s home for marijuana. Judge R. Michael Cloud of the Orange Superior Court determined that the warrant request was supported by adequate probable cause and issued the warrant. After the warrant was executed, the State charged Shipman with Class D felony dealing in marijuana and Class D felony maintaining a common nuisance.
On June 6, 2011, Shipman filed a pretrial motion to suppress the evidence obtained during the execution of the search warrant, claiming that the warrant was not adequately supported by probable cause. Following a hearing held on May 7, 2012, the trial court agreed and entered an order granting Shipman‘s motion to suppress on June 20, 2012. The State filed a motion to correct error on July 20, 2012. On July 27, 2012, the trial court scheduled a hearing on the State‘s motion to correct error. A hearing on the State‘s motion to correct error was held on September 11, 2012. On September 21, 2012, the trial court entered an order denying the State‘s motion. The
I. Validity of the Search Warrant
The State first argues that the warrant authorizing the police to search Shipman‘s home was properly supported by probable cause and that the trial court therefore erred in suppressing the evidence seized during the execution of the warrant.
A. Standard of Review
Generally we review a trial court‘s decision to grant a motion to suppress as a matter of sufficiency. State v. McCaa, 963 N.E.2d 24, 29 (Ind.Ct.App.2012), trans. denied. On appeal, we will neither reweigh evidence nor judge witness credibility. Id. Our role is to determine whether the record discloses substantial evidence of probative value that supports the trial court‘s decision. State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008). The State appeals from a negative judgment and must show that the trial court‘s ruling on the suppression motion was contrary to law. Id.
Here, the question is whether the search warrant was supported by probable cause. Both the
The duty of a reviewing court is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. State v. Spillers, 847 N.E.2d 949, 953 (Ind.2006). In this sense, a “reviewing court” includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. A “substantial basis” requires the reviewing court, with significant deference to the magistrate‘s determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Id. We review the trial court‘s substantial basis determination de novo, but we nonetheless afford significant deference to the magistrate‘s determination as we focus on whether reasonable inferences drawn from the totality of the evidence support that determination. Id. We consider only the evidence presented to the issuing magistrate, not after-the-fact justifications for the search. Casady, 934 N.E.2d at 1189. In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases should be resolved in favor of upholding the warrant. Id.
B. Evidence Providing Probable Cause
The
These principles are codified in
The trustworthiness of hearsay for the purpose of establishing probable cause can be established in a number of ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant‘s statements, (3) some basis for the informant‘s knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. Id. at 954. These examples are not exclusive, and, depending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay. Id. One such additional consideration is whether the informant has made declarations against penal interest. Id. Indeed, our supreme court has held that “[d]eclarations against penal interest can furnish sufficient basis for establishing the credibility of an informant within the meaning of
In Spillers, our supreme court explained, however, that not all statements admitting to criminal conduct are sufficient to establish probable cause. In that case, the informant was caught “red-handed” with illicit drugs in his possession. 847 N.E.2d at 956. After he was caught, the informant gave the police information that Spillers was his supplier. The State argued that the informant had admitted the additional crime of possession of cocaine by naming his source and that the informant‘s statement was thus against his penal interest and reliable. The Spillers court disagreed, and held that although the informant admitted committing additional crimes of possession, “his tip was less a statement against his penal interest than an obvious attempt to curry favor with the police.” Id. That is, because the informant had already been caught with cocaine in his possession, his statement to the police did not subject him to any real additional criminal liability. Id. at 957.
Shipman claims that Spillers stands for the proposition that a statement cannot be truly against the declarant‘s penal interest unless it exposes the declarant to criminal liability greater than that which he is already facing. Thus, since K.G. was already facing charges of burglary, Shipman claims that his statements regarding stealing and possessing marijuana at Shipman‘s home were merely attempts to curry favor with the police, not truly statements against K.G.‘s penal interests.
We think, however, that the facts of the present case are distinguishable from those present in Spillers. Here, K.G. was arrested for burglary. His state-
This is in direct contrast to the situation in Spillers where the informant was caught “red-handed” with drugs in his possession before he named the defendant as his supplier, and his decision to reveal his source did not subject him to any real additional criminal liability. Here, K.G.‘s statement‘s exposed him to additional criminal charges that were wholly unrelated to the burglary charges for which he had already been arrested.
Under these facts and circumstances, we cannot say as a matter of law that K.G.‘s statements were not against his penal interest. His statements, if credited, were sufficient to allow the issuing magistrate to make a practical, commonsense decision that there was a fair probability that evidence of dealing in and possession of marijuana would be found in Shipman‘s home.2 The trial court, as a reviewing court, abused its discretion in overruling this determination.
II. Good Faith Exception
Furthermore, even if the trial court was correct in deciding that the issuing magistrate was incorrect in concluding that there was sufficient probable cause to support issuing the search warrant, the proper remedy should not have been to suppress the evidence seized during the execution of the warrant. Indeed, in Spillers, our supreme court noted that:
The lack of probable cause does not automatically require the suppression of evidence obtained during a search. The Supreme Court of the United States
held in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), that the exclusionary rule does not require the suppression of evidence obtained in reliance on a defective search warrant if the police relied on the warrant in objective good faith. Leon cautioned however that the good faith exception is not available in some situations, including where (1) the magistrate is “misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” or (2) the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923, 104 S.Ct. 3405 (citation omitted). The good faith exception to the warrant requirement has been codified by Indiana Code section 35-37-4-5 .
847 N.E.2d at 957. Here, as in Spillers, there is no suggestion that the issuing magistrate was misled by false information.
With regard to the second exception to the good-faith rule, the warrant issued here was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. To the contrary, the facts of this case at worst present a close call. Even if the trial court was correct that, under Spillers, K.G.‘s statements were not truly against his penal interest, this is not a case where the officers could not reasonably rely on the decision of the issuing magistrate. Although officers are required to have “a reasonable knowledge of what the law prohibits,” this does not mean that they are “required to engage in extensive legal research and analysis before obtaining search warrants.” Id. at 958 (quoting Hensley v. State, 778 N.E.2d 484, 489 (Ind.Ct.App.2002)). As did our supreme court in Spillers, we conclude that the officers in this case relied upon the search warrant in objective good faith. See id. (concluding that the officers relied on the warrant in good faith despite concluding that declarant‘s statements were not truly against his penal interest and therefore did not support a finding of probable cause to support issuing the search warrant).
Conclusion
The trial court erred in granting Shipman‘s motion to suppress the evidence seized during the execution of the search warrant issued based upon K.G.‘s statement to the police. K.G.‘s statements were contrary to his penal interest and therefore sufficiently reliable to support a finding of probable cause to issue the search warrant. Even if K.G.‘s statements were not contrary to his penal interest, however, the officers could have relied on the warrant in objective good faith, and there was no reason to suppress the evidence pursuant to the exclusionary rule. We therefore reverse the order of the trial court granting Shipman‘s motion to suppress and remand for further proceedings consistent with this opinion.
Reversed and remanded.
BAKER, J., and MAY, J., concur.