Donald J. Hickman
Jeffrey A. Modisett
Phillip D. Hatfield
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Donald J. Hickman
Jeffrey A. Modisett
Phillip D. Hatfield
LARRY E. JAGGERS, )
Appellant (Defendant below), ) Indiana Supreme Court
) Cause No. 47S01-9711-CR-564
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 47A01-9611-CR-363
Appellee (Plaintiff below). )
a Class D felony.See footnote
The trial court sentenced Jaggers to six months imprisonment and two
years supervised probation. We grant transfer to address the interplay between the "good
faith" exception to the exclusionary rule and the warrant statute, Indiana Code § 35-33-5-2.
Because we hold that the evidence used to convict Jaggers was inadmissible, we reverse the
conviction and remand for further proceedings.
in Part II infra), a magistrate immediately issued a warrant authorizing a search of the
described house for "[m]arijuana, 'grow' lights, and records and other similar written
material recording or otherwise reflecting illegal trafficking in marijuana." The officer
executed the warrant at Jaggers's home that afternoon. The search uncovered a substantial
quantity of marijuana and related paraphernalia. Jaggers was convicted in a bench trial and
he appealed. With one judge dissenting, the Court of Appeals affirmed. Jaggers v. State,
681 N.E.2d 793 (Ind. Ct. App. 1997) (unpublished table decision).
activities by the suspect that are not ordinarily easily predicted. Depending on the facts,
other considerations may come into play in establishing the reliability of the informant or the
Even under Gates's deferential standard of review, the determination of probable cause in this case lacked a substantial basis. The independent police investigation corroborated the informant's assertion that marijuana was being grown on two plots of land miles from Jaggers's residence and that Jaggers appeared to live where the informant said he lived -- nothing more. These facts did not establish any corroboration of the anonymous claim that Jaggers's house contained evidence of crime. Nor did they confirm that the off- site marijuana plants belonged to Jaggers. Cf. Kail v. State, 528 N.E.2d 799, 804-08 (Ind. Ct. App. 1988) (search warrant for defendant's house issued on probable cause where defendant was arrested at marijuana patch away from his residence and facts supported conclusion that growing paraphernalia would be found in his house). The critical claim here -- that Jaggers was cultivating and trafficking marijuana in his house and also controlled the off-site plots -- was entirely uncorroborated.
Equally critically, the informant's credibility was entirely unknown. Use of anonymous informants to establish probable cause often presents heightened reliability concerns. Because there is no possibility of criminal liability for filing a false police report, the informant has no incentive to be truthful. See Gates, 462 U.S. at 233-34 ("[I]f an unquestionably honest citizen comes forward with a report of criminal activity--which if fabricated would subject him to criminal liability--we have found rigorous scrutiny of the
basis of his knowledge unnecessary.") (citation omitted). Anonymity effectively shields
from scrutiny any possible ulterior motives; the situation is rife with the potential for pranks
and mischief. Accordingly, some corroboration of the accusations is all the more essential
when the informant is anonymous. See, e.g., Sanders v. State, 576 N.E.2d 1328 (Ind. Ct.
App. 1991) (tip from confidential informant that defendant would be driving in the area and
"possibly" in possession of narcotics did not establish probable cause for warrantless search
of defendant's vehicle where the trustworthiness of the information had not been
At the same time, anonymous tips can provide important information enabling police to apprehend suspects who otherwise might escape detection. A balance must be struck between these considerations. As Gates put it: "While a conscientious assessment of the basis for crediting [anonymous] tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not." Gates, 462 U.S. at 238. The only factor cutting towards crediting the tip in this case was that the caller claimed to have personally witnessed the criminal activity. Gates indicated that "a statement that the event was observed firsthand" entitles the tip to "greater weight than might otherwise be the case." Id. at 234. However, the caller gave no information that would have enabled a neutral and detached magistrate to assess the credibility of this claim of firsthand observation. The caller's assertion of personal knowledge carries little weight in light of the total lack of corroboration of the claim and no basis for concluding that the caller was a credible source. In short, the search warrant here was issued on uncorroborated hearsay from an informant
whose credibility was entirely unknown. This does not satisfy the Fourth Amendment's
requirement of probable cause.
The reason for the prohibition on searches based on uncorroborated hearsay goes to the root of the Fourth Amendment and Indiana statutory and constitutional protection against unreasonable searches and warrants without probable cause. If any anonymous caller's allegation, uncorroborated by anything beyond public knowledge, could justify a search, every citizen's home would be fair game for a variety of innocent and not so innocent intrusions.
B. Indiana Code § 35-33-5-2
Jaggers contends the caller's information also does not satisfy the Indiana statute regulating the issuance of search warrants based on hearsay. That statute provides:
(b) When based on hearsay, the [probable cause] 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(b) (1993). Amendments to the statute have in effect codified changes in Fourth Amendment doctrine on the use of informants to establish probable cause.See footnote 2
Accordingly, we have held that "[w]hen seeking either a search or an arrest warrant, the
police must follow the warrant statute, which specifies the minimum information necessary
to establish probable cause." Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994) (citation
and footnote omitted); accord Houser, 678 N.E.2d at 99.See footnote
For many of the same reasons discussed in Part IA supra, the requirements of the statute were not satisfied here. Subsection (b)(1) was not met because the officer did not offer any information to the issuing magistrate, and apparently had none, establishing the credibility of the anonymous source. Subsection (b)(2) was also not met because the totality of the circumstances did not corroborate the hearsay. The informant's claim that Jaggers was cultivating and trafficking marijuana in his house was entirely uncorroborated. The facts that were verified were unremarkable; anyone who knew the location of Jaggers's house and the two marijuana patches could have placed the anonymous phone call. Bradley v. State, 609 N.E.2d 420, 423 (Ind. 1993) (totality of circumstances did not corroborate hearsay where police investigation established only that anonymous caller gave correct address of the defendant and an accurate description of a crime that had in fact occurred). The Supreme Court observed in Gates that "[b]ecause an informant is right about some things, he is more probably right about other facts." Gates, 462 U.S. at 244 (internal quotation marks and
citation omitted). While this may be true as a general proposition, this presumption does not
attach until the informant is shown to be correct about facts not within the public domain.
Seltzer v. State, 489 N.E.2d 939 (Ind. 1986) (anonymous tip supported finding of probable
cause because informant described a class ring missing from the crime scene and the theft
had not been reported in the newspapers). The caller's claim of firsthand observation of
marijuana in Jaggers's house would ordinarily boost the credibility of the assertion, Dolliver
v. State, 598 N.E.2d 525, 528 (Ind. 1992), but it too is uncorroborated. The statement of
firsthand knowledge could just as easily have been fabricated to make the underlying
allegation appear more credible. Cf. Everroad v. State, 590 N.E.2d 567 (Ind. 1992)
(subsection (b)(2) not satisfied where claim of firsthand observation of criminal activity was
not corroborated by totality of circumstances). In sum, the hearsay in this case fails to satisfy
either the Fourth Amendment or Indiana Code § 35-33-5-2.
unreasonable." Id. at 923 (internal quotation marks and citations omitted). In affirming the
trial court, the Court of Appeals could not agree on proper application of the good faith
exception. Judge Robertson held that Leon allowed the evidence to be admitted, irrespective
of whether probable cause existed, because the magistrate had not been misled.See footnote
Chezem concurred in result without opinion. Judge Najam dissented on two grounds: (1) the
warrant was not supported by probable cause because it issued on uncorroborated hearsay;
and (2) the good faith exception did not apply because no well-trained officer would
reasonably have relied on a warrant issued on uncorroborated hearsay.
Jaggers argues that the investigating officer misled the magistrate when he testified at the probable cause hearing that the two marijuana plots were "near" State Road 60 (Jaggers's house was located just north of State Road 60 on Lawrence County Road). The State responds that the Leon exception applies here because the officer did not testify falsely about the location of the plots. We disagree. The marijuana patches were at least two and six miles from the house respectively. The officer personally visited the plots just a few hours before testifying as to their location. Although he agreed with the prosecutor's statement at the probable cause hearing that the plots were "separate from the place we are seeking to search," the officer subsequently stated that the marijuana patches were "near"
Jaggers's residence. Although perhaps an innocent mischaracterization, this representation
was critical when viewed in the factual context. Placing the plots "near" Jaggers's residence
implied a link between Jaggers and the plots that was not supported by the evidence. This,
in turn, implied involvement by Jaggers in marijuana trafficking that was otherwise not
reasonably inferable from the officer's testimony. In applying Leon, our cases have stressed
the importance of accurately presenting all relevant information to the magistrate. See, e.g.,
Dolliver, 598 N.E.2d at 529. Only then can the magistrate make the neutral and detached
determination the Fourth Amendment requires of whether probable cause exists. Here the
magistrate's decision to issue the warrant may well have turned on the blurring of the
absence of any link between Jaggers and the marijuana patches.
This certainly approaches misleading the magistrate to a degree that prevents invocation of Leon. In any event, we agree with Judge Najam that the information on which the warrant was based was so lacking in indicia of probable cause that no well-trained officer would reasonably have relied on the warrant. Law enforcement officers are trained to distinguish the incriminating from the innocuous. Federal constitutional cases such as Gates and Indiana's warrant statute make at least two things abundantly clear to law enforcement officers who seek a warrant based on hearsay: (1) the informant must be shown to be credible; or (2) the information must be shown to be reliable through corroboration or some other means. Because the informant in this case was anonymous, it would have been clear at the outset to a reasonable police officer that some corroboration of the caller's allegations would be critical if a warrant was to be obtained. Indeed, our decisions have emphasized
that corroboration of inculpating information can sometimes be crucial to determining the
existence of good faith. Cf. Bradley, 609 N.E.2d at 423-24 (holding that good faith
exception was not available in part because there was no corroboration of anonymous
caller's allegation linking defendant to the crime).
The State's contention that the officer corroborated the anonymous tip "to the extent practicable" does not comport with the facts. The caller stated that Jaggers had "an ongoing operation for several years at that location" and that "something is pretty much always growing in there." This should have signaled time and opportunity to develop independent data showing the allegations to be reliable. Yet the police investigation was limited to confirming factual allegations that shed absolutely no light on whether Jaggers's house might contain evidence of crime. The location of the house and of the off-site plots were "easily obtained facts and conditions existing at the time of the tip . . . ." Gates, 462 U.S. at 245. The caller claimed that he had seen marijuana "in and around that residence and its curtilage," but the officer did not attempt to confirm this through personal observation. And even though the caller asserted that Jaggers was selling "a pound of marijuana a week," no surveillance of any kind was placed on the house to determine whether the level of traffic was consistent with drug dealing. Finally, the officer expended no effort to establish any link between Jaggers and the marijuana patches. In short, there was no corroboration of these critical facts and no serious effort to corroborate them.
Since 1969, the General Assembly has required some showing of credibility of the informant or of the hearsay for a warrant to issue on the informant's statements. See, e.g.,
1969 Ind. Acts, ch. 99, § 1. Although the warrant statute has been amended from time to
time, this legislative policy has remained consistent for nearly thirty years. See also note 2
supra. Police officers are reasonably charged with knowing the statute's basic requirements:
"The goal is that warrants be issued only upon probable cause, shown preferably by facts but
in any event by information that is believed to be reliable." Madden v. State, 263 Ind. 223,
226, 328 N.E.2d 727, 729 (1975) (construing predecessor statute). Because reliance on a
warrant issued on completely uncorroborated hearsay from an anonymous informant
contravenes this purpose, the conduct of the police here cannot be characterized as
objectively reasonable. Leon's rationale is not advanced by effectively allowing the State
to claim good faith reliance on a warrant after a less than faithful effort to establish probable
cause to obtain it. Accordingly, we hold that the good faith exception announced in Leon
cannot save the illegally-seized evidence in this case. The trial court erred when it denied
Jaggers's motion to suppress and admitted the evidence seized as a result of the search.
Because the error was not harmless, the conviction must be reversed.See footnote
criteria. Subsection (b)(1) remains on the books notwithstanding the demise of the Spinelli test in Gates. What is now subsection (b)(2) was added to the warrant statute in 1984. See 1984 Ind. Acts, P.L. 177, § 1. By focusing on the totality of the circumstances, it clearly tracks the then-recent decision in Gates.
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