ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN L. TOMPKINS STEVE CARTER
Brown Tompkins & Lory Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
TIMOTHY W. STEPHENSON, ) ) Appellant-Defendant, ) ) vs. ) No. 40A05-0304-CR-185 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Hensley v. State, 778 N.E.2d 484, 487 (Ind. Ct. App. 2002) (some citations
[O]nce the State has obtained a magistrates determination of probable cause, a presumption of validity obtains. Watt v. State, 412 N.E.2d 90, 95 (Ind. Ct. App. 1980). Where a presumption of the validity of the search warrant exists, the burden is upon the defendant to overturn that presumption. If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial evidence of probative value. Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003) (citation omitted).
When seeking a search warrant, the police must follow Indiana Code Section 35-33-5-2, which specifies the minimum information necessary to establish probable cause. Jaggers v. State, 687 N.E.2d 180, 183 (Ind. 1997). This statute reads in relevant part as follows:
(a) Except as provided in section 8 of this chapter, [ See footnote ] no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) the things as are to be searched for are there concealed; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or
(2) contain information that establishes that the totality of the circumstances corroborates the hearsay.
Ind. Code § 35-33-5-2.
Because the request for a warrant is necessarily made ex parte, the most basic notions of due process require that [an attack of a search warrant affidavit] be permitted. Watt, 412 N.E.2d at 95 (citing Franks v. Delaware, 438 U.S. 154 (1978)). If a defendant establishes by a preponderance of the evidence that a false statement knowingly and intentionally, or with a reckless disregard for the truth, was included by the affiant in the warrant affidavit, . and, with the affidavits false material set to one side, the affidavits remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Franks, 438 U.S. at 155-56.
The search warrant affidavit sworn out by Deputy Jones reads in relevant part as follows:
Deputy Jeffrey Jones of the Jennings Co. Sheriff [sic] Department swears that he believes and has probable cause to believe that certain property, hereinafter described, is or will be concealed in or upon the following described residence, to-wit: white ranch house with garage located at 1305 W. Ben Drive (Burnt Pine Addition), Jennings County, Indiana.
The property consists of the following: methamphetamine; chemicals for manufacturing methamphetamine; implements for manufactor [sic] meth, cash, records sales [sic] of other transactions which constitutes [sic] unlawfully obtained property/contraband/property used or possessed with the intent to use in the concealment of an offense/evidence of an offense.
In support of your affiants assertion of probable cause, the following facts are within your affiants personal knowledge, to-wit: within last 36 hours, Larry Siegelin purchased methamphetamine from Tim Stevenson [sic] and was inside the residence described above when he observed methamphetamine and implements for manufacturing meth. Larry turned the methamphetamine over to the Jennings Co. Sheriffs Department. The substance tested positive for methamphetamine.
Therefore, your affiant respectfully requests the Court to issue a search warrant directing the search for and seizure of the above-described property.
I swear and affirm, under the penalties of perjury as specified by IC 35-44-2-1, that the foregoing representations are true.
Appellants App., States Exhibit 1.
Stephenson contends that the search warrant affidavit is invalid because it contains several false or misleading statements, including Deputy Joness affirmation that the facts stated in the affidavit were within his personal knowledge. At the suppression hearing, Deputy Jones testified in relevant part as follows:
Q Okay. Now turning your attention to that affidavit. Does it state anywhere on that affidavit that the small bag of white powdery substance was recovered from a third person and not from the informant?
A No it was recovered from him.
A Mr. Siegelin.
Q Well you werent there when it was recovered were you?
A No I was not.
Q And it was recovered from his brothers house, right?
A Yes it was.
Q And nowhere in the affidavit does it say that the small bag of white powder was recovered from the brothers house and not from the person of Larry Siegelin?
A I wasnt there when he went into the residence with Major Cardinal, so I cant testify to that aspect of it.
Q Now again turning just towards whats stated on that affidavit in front of you, it doesnt say anywhere that Mr. Siegelin first said that he went to confront Mr. Stephenson and then later changed to an attempt to purchase methamphetamine, does it?
A No it does not.
Q Okay, it doesnt state anywhere in that affidavit that Mr. Siegelin admitted that he had a grudge and was angry with Mr. Stephenson does it?
A No it does not.
Q And that affidavit does that, it starts out in the form, the affiant has personal knowledge, do you see where it says that? Right below where you start filling in with the handwritten?
THE COURT: Its the third paragraph.
Q Now youre the affiant whose signature appears above the affiants line, right?
Q You did not actually see Mr. Siegelin purchase anything from Mr. Stephenson within thirty-six hours of filling out that form, did you?
A No I did not see the buy or the purchase.
Q Okay, and you werent with him at any point when he was inside the residence at 1305 West Bend, were you?
A No, I was not.
Q Okay, actually the facts that are in that affidavit are not based on your personal knowledge, but rather on what Mr. Siegelin told you right?
A Information that was relayed to me.
Q By Mr. Siegelin?
Tr. at 6-8.
The affidavit suggests that Deputy Jones personally witnessed Siegelin purchase methamphetamine from Stephenson inside Stephensons home and that Siegelin surrendered the methamphetamine to the authorities without further ado. See footnote In light of Deputy Joness testimony, it is obvious that none of this was true. There is no indication that Deputy Jones knowingly and intentionally made false statements, but his testimony clearly evidences a reckless disregard for the truth of the facts stated in the affidavit. See footnote As such, the trial court erred in denying Stephensons motion to suppress.
SHARPNACK, J., concurs.
BAKER, J., concurs in result with opinion.
BAKER, Judge, concurring in result,
I fully concur in the majoritys decision to reverse the trial courts denial
of Stephensons motion to suppress. However, I do so for a different
reason. Specifically, I would reverse for the reason that Detective Joness affidavit
is flawed because Siegelins credibility was not established.
Initially, I acknowledge that Detective Joness probable cause affidavit may be read as making an assertion that is untrue. The affidavit states that Detective Jones had personal knowledge of Siegelin purchasing methamphetamine from Stephenson. States Ex. 1. If the majority interprets this to mean that Detective Jones witnessed the Siegelin purchase, then its decision is undoubtedly correct.
However, if one construes Detective Joness affidavit as relating what Siegelin told him about the purchase in order to establish Siegelins credibilitya reasonable interpretation, given the States argument about a statement against penal interests being inherently crediblethen one need not decide whether Detective Jones made false statements. The only decision that need be made is whether Siegelins credibility was established. In its appellate brief, the State argues that Siegelins information indicated veracity because he admitted to obtaining methamphetamine from Stephensons home. Appellees Br. p. 6. The State argued that such declarations against penal interest can furnish a sufficient basis for establishing the credibility of an informant. Appellees Br. p. 6. Our supreme court stated as much in Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997).
At the suppression hearing, however, it was established that even though Siegelin stated that he had purchased methamphetamine from Stephenson, Siegelin was not in possession of methamphetamine when he approached the Jennings County Sheriff Department. Instead, Siegelin took Deputy Cardinal to Stephensons home, where a small amount of methamphetamine was recovered. In my view, taking a police officer to a methamphetamine laboratory in which one does not have a possessory interest is not against ones penal interest. Therefore, the State failed to show that the informants credibility was established, and so the warrant could not have been based on probable cause.
At oral argument, the State went on to intimate that whenever a person contacts police regarding criminal activity, that person is inherently making a statement against his penal interests because he subjects himself to a charge of false reporting. The States reasoning is that such an actionbecause of the threat of a false reporting chargeautomatically corroborates the hearsay contained in an affidavit. The States position is contrary to Indiana Code section 35-33-5-2(b)(2), however, which requires that an affidavit based on hearsay must contain information that establishes that the totality of the circumstances corroborates the hearsay. Under the totality of the circumstances, a persons statement against penal interest may be sufficient. Newby v. State, 701 N.E.2d 593, 600 (Ind. Ct. App. 1998). The magistrate issuing a warrant is to decide if under the totality of the circumstances a warrant shall issue. Id. A statement against penal interest is not the automatic corroboration as the state contends, though it is apparent to me that statements against ones penal interest might very well influence a magistrates decision.
Inasmuch as my colleagues and I read the affidavit differently, we come to the same conclusion by a different road.