ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ZACHARY J. STOCK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DON MERRITT, )
vs. ) No. 49A04-0305-CR-213
STATE OF INDIANA, )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-0201-FA-13409
February 13, 2004
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Appellant-defendant Don Merritt appeals the trial courts denial of his motion to suppress.
Merritt presents one issue for our review, which we restate as whether the
trial court erred in denying his motion to suppress.
Facts and Procedural History
On January 16, 2002, Indianapolis Police Department Officer Philip Smiley drafted the following
search warrant affidavit:
Philip A. Smiley, Police Officer, swears or affirms that he believes and has
good cause to believe: that a controlled substance, to wit: Cocaine,
an extract of Coca, the possession of which is unlawful, is being kept,
used, and sold from the residence located [at] 3508 N. Butler Ave., Indianapolis,
Marion County, Indiana and said residence is under the control of a B/M
20 yrs. old, 52 73 tall, 270 lbs., with a medium
afro wearing a black leather jacket and blue jeans.
This affiant bases his belief
on the following information: that within the past seventy-two (72) hours of
1-16-02, a confidential, credible and reliable informant came personally to this affiant and
stated that within the past seventy-two (72) hours of 1-16-02, he/she was personally
in the location of 3508 N. Butler Ave., Indianapolis, Marion County, Indiana and
observed in the possession of a B/M 20 yrs. old, 52 73
tall, 270 lbs., with a medium afro wearing a black leather jacket
and blue jeans, a substance said informant believed to be Cocaine, an extract
of Coca. Said informant was further told by the B/M 20 yrs.
old, 52 73 tall, 270 lbs., with a medium afro wearing
a black leather jacket and blue jeans, that the substance he/she had in
his/her possession was in fact Cocaine, an extract of Coca and was for
sale. Said informant is known personally by this affiant to be a
past user of cocaine, an extract of Coca, and knows Cocaine, an extract
of Coca by its appearance and the manner in which it is packaged
for sale. Said informant is reliable in that information provided by the
informant in the past has resulted in at least three (3) seizures of
controlled substances and these cases have resulted in convictions in court. Said
informant is confidential in that revealing the identity of the informant could directly
endanger the life of the informant and would destroy any future use of
Based upon the above information, I am requesting a search warrant be issued
for the residence located at 3508 N. Butler Ave., Indianapolis, Marion County, Indiana.
Said residence is described as a single story-single family residence white in
color with blue trim, and has the numerals 3508 affixed to the front
of the residence to be searched. Said residence consists of a living
room, dining area, kitchen, bedroom(s) and bathroom(s). I request this search to
include all rooms, closets, drawers, shelves and personal effects contained therein and thereon
where Cocaine, an extract of Coca may be concealed.
I further request this search to include the person of the B/M 20
yrs. old, 52 73 tall, 270 lbs., with a medium afro
wearing a black leather jacket and blue jeans.
Appellant s App. at 28.
Based on this affidavit, the trial court issued a search warrant for the
residence and person described above. On January 17, 2002, Officer Marc Lundy and members
of the Indianapolis Police Department S.W.A.T. team executed the search warrant and found
Merritt sitting in the dining room with several other persons. The police
recovered a bag containing marijuana from the dining room table and cocaine from
a jacket in one of the bedroom closets.
On January 24, 2002, the State charged Merritt with Class A felony dealing
Class C felony possession of cocaine,
Class C felony possession of
cocaine and a firearm,
and Class A misdemeanor possession of marijuana.
October 22, 2002, Merritt filed a motion to quash warrant/motion to suppress evidence.
On March 7, 2003, the trial court denied Merritts motion in an
order reading in pertinent part:
The defense argument in this case is that the statement in the first
paragraph of the probable cause affidavit concerning who was in control of the
residence is a conclusion not supported by the facts. The Court agrees with
the defense, thus, the Court will excise that information from the affidavit and
reanalyze the existence of probable cause.
See Query v. State, 745 N.E.2d
769 (Ind. 2001); Franks v. Delaware, 438 U.S. 154 (1978).
The Court FINDS that with the offending language removed there still remains probable
cause for the issuance of the warrant.
WHEREFORE, the Motion to Suppress is hereby DENIED.
Appellants Br. at 19-20. This interlocutory appeal ensued.
Discussion and Decision
We review the trial courts ruling on a motion to suppress in a
manner similar to other sufficiency matters. Edwards v. State, 759 N.E.2d 626,
630 (Ind. 2001). The record must disclose substantial evidence of probative value
that supports the trial courts decision. Id. We do not reweigh
the evidence, and we consider the conflicting evidence in the light most favorable
to the trial courts ruling. Id.
The State argues that in cases involving drug dealers it is reasonable for
a magistrate to conclude that evidence is likely to be found where the
dealers live. Appellees Br. at 4. It also contends that it
was plausible for the magistrate to infer that the drug transaction between the
unidentified black male and the informant was one of many similar transactions conducted
at the residence and that the magistrates practical experience may have apprised him
of the level of criminal activity in the neighborhood and the probable nature
of Merritts residence as that of a crack house.
Id. at 5.
Merritt contends that the trial court erred in denying his motion to
suppress because the search warrant affidavit lacked probable cause. Specifically, Merritt argues
that the affidavit failed to link the unidentified black male with drugs to
his residence. We agree.
A court may issue warrants only upon probable cause, supported by oath or
affirmation[.] Ind. Code § 35-33-5-1. Indiana Code Section 35-33-5-2 specifies the
minimum information necessary to establish probable cause and provides in relevant part:
(a) Except as provided in section 8 of this chapter, no warrant for
search or arrest shall be issued until there is filed with the judge
(1) particularly describing:
the house or place to be searched and the things to be searched
(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
Emphasis added. An affidavit demonstrates probable cause to search premises if it
provides a sufficient basis of fact to permit a reasonably prudent person to
believe that a search of those premises will uncover evidence of a crime.
Hensley v. State, 778 N.E.2d 484, 488 (Ind. Ct. App. 2002).
In deciding whether to issue a search warrant, the task of the issuing
magistrate is simply to make a practical, commonsense decision whether, given all the
circumstances set forth in the affidavit
there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
The duty of the reviewing court is to determine whether the magistrate
had a substantial basis for concluding that probable cause existed. Substantial basis
requires the reviewing court, with significant deference to the magistrates determination, to focus
on whether reasonable inferences drawn from the totality of the evidence support the
determination of probable cause. Reviewing court for these purposes includes both the
trial court ruling on a motion to suppress and an appellate court reviewing
Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997) (citations, quotation marks, and
Here, Officer Smiley stated in his affidavit that, while a confidential informant was
in Merritts residence on one occasion, an unidentified black male offered to sell
the informant what appeared to be cocaine. Officer Smiley did not state
that the unidentified black male frequented, resided, or concealed contraband at 3508 North
Butler Avenue nor did he state that there was good cause to believe
that the black male would possess cocaine in the residence when the warrant
was obtained. See Doss v. State, 649 N.E.2d 1045, 1048-49 (Ind. Ct.
Footnote: 995) (finding affidavit la
Footnote: ked indicia of probable ca
Footnote: se because it omitted impo
factual details). Mor
ion in denyi