ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CRAIG V. BRAJE STEVE CARTER
ELIZABETH A. FLYNN Attorney General of Indiana
Braje & Nelson, LLP
Michigan City, Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JEFFREY J. MARLOWE, )
vs. ) No. 46A03-0207-CR-229
STATE OF INDIANA, )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Walter P. Chapala, Judge
Cause No. 46D01-0202-FA-012
April 16, 2003
OPINION - FOR PUBLICATION
The State filed charges against Jeffrey Marlowe for Possession of Marijuana and
Possession of Cocaine with Intent to Deliver. Marlowe filed a Motion to
Suppress all of the evidence seized as a result of a search warrant
executed at his residence. Following a hearing, the trial court denied Marlowes
Motion to Suppress. Marlowe filed this interlocutory appeal. We affirm.
Marlowe raises a single issue for our review which we restate as whether
the trial court properly denied his Motion to Suppress.
Facts and Procedural History
Marlowe owned and operated a business at 922 Chicago Street in Michigan City,
Indiana. His residence was on the corner of Western Avenue and Columbia
Street at 132 Columbia. A confidential informant told the Michigan City Police
Department that he had seen narcotics at Marlowes business. Additionally, the informant
told the police department that he had seen narcotics at Marlowes residence, but
incorrectly identified the residence as 132 Western Avenue. Also, the police received
an anonymous tip that there was illegal activity at Marlowes residence. The
Michigan City Police Department conducted two controlled buys at Marlowes business in one
day. No controlled buys occurred at Marlowes residence. As a result
of these controlled buys, a probable cause hearing was held by the LaPorte
Circuit Court and an Order for Search Warrant for Marlowes residence was entered
by the court. The warrant identified Marlowes residence as 132 Western Avenue.
On February 7, 2002, the police searched Marlowes residence. After finding narcotics
evidence intended for use at trial, the police arrested Marlowe. Marlowe filed
a Motion to Suppress the evidence confiscated at his residence. At the
hearing on the Motion to Suppress, Marlowes attorney was not allowed to fully
cross-examine all witnesses. The trial court denied Marlowes Motion to Suppress and
this interlocutory appeal ensued.
Discussion and Decision
I. Standard of Review
We review the denial of a motion to suppress in a manner similar
to other sufficiency matters. Scott v. State, 775 N.E.2d 1207, 1209 (Ind.
Ct. App. 2002). We do not reweigh the evidence and we consider
conflicting evidence most favorable to the trial courts ruling. Id. However,
unlike the typical sufficiency of the evidence case where only the evidence favorable
to the judgment is considered, we must also consider the uncontested evidence favorable
to the defendant. Id.
Marlowes Motion to Suppress
Marlowe contends that his Motion to Suppress was erroneously denied because the search
warrant incorrectly identified the house. Additionally, he argues that the search warrant
was not based on probable cause. Generally, a search warrant should not
issue unless it particularly describes the place to be searched and things or
persons to be seized. U.S. Const. amend. IV; Ind. Code § 35-33-5-2(a)(1);
Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997). In Houser, the
search warrant issued erroneously identified the building to be searched as 1435 South
Hoyt Avenue instead of 1435 South Kinney Avenue. However, the warrant stated
that the officers were to search a cement block building bearing the words
Lees Automotive. The court held that the warrant sufficiently described the property
to be searched despite the mistake. Id. at 101.
Citing the holding in Houser, Marlowe states that the search warrant here should
be invalidated because the address was wrong. Also, Marlowe argues that the
warrant at question here, unlike the warrant in Houser, does not describe the
property with such specificity that it is distinguished from the buildings around it.
In Willard v. State, 272 Ind. 589, 400 N.E.2d 151 (1980), our supreme
court examined probable cause in a warrant issued to search a motor home.
The search warrant contained an incorrect designation of the license number and
model year of the motor home. The court held that a search
warrant need only be sufficiently specific to identify the house or place to
be searched for the officers who serve the warrant. Id. at 155.
Although the warrant issued in the present case did not contain the kind
of specific identifying information as the warrant issued in Houser, the warrant issued
here was sufficiently specific for the officers who served the warrant. Besides
the address, the warrant identified the house as white in color and as
a single family dwelling. Appellants Appendix at 10.
Additionally, we note that Marlowe has presented no evidence to this court
that the proper address for his residence is 132 Columbia Street rather than
132 Western Avenue. There is nothing in the record to show that
the address on the search warrant is incorrect.
See footnote Therefore, the trial court
did not err in finding that the search warrant sufficiently described the address
of the house to be searched.
Next, Marlowe contends that the search warrant was not based on probable cause.
Marlowe contends that the confidential informant lacked the required indicia of credibility.
The United States Supreme Court has held that uncorroborated hearsay from an
informant whose credibility is unknown cannot suffice to satisfy the probable cause requirement
for the issuance of a search warrant.
Illinois v. Gates, 462 U.S.
213, 227 (1983). The federal test for ensuring the reliability of
a hearsay statement in a probable cause determination allows the use of hearsay
only if the totality of the circumstances corroborates the hearsay. Lloyd v.
State, 677 N.E.2d 71, 74 (Ind. Ct. App. 1997), trans. denied (quoting Gates,
462 U.S. at 230-31). The reliability of hearsay 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 informants statements, (3) some
basis for the informants knowledge is demonstrated, or (4) the informant predicts conduct
or activities by the suspect that are not ordinarily easily predicted. Jaggers
v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Gates, 462 U.S. at
Further, Indiana Code section 35-33-5-2(b) provides:
When based on hearsay, the affidavit must either:
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
contain information that establishes that the totality of the circumstances corroborates the hearsay.
Marlowe concedes that the magistrate at the probable cause hearing asked Officer Mark
Swistek whether the Michigan City Police Department had relied on the confidential informant
in the past and Officer Swistek responded affirmatively. Additionally, Marlowe concedes that
the magistrate asked Officer Swistek whether the information from the informant had always
proven truthful and accurate and again, Officer Swistek responded affirmatively. However, Marlowe
contends that simply responding affirmatively without offering a factual basis for the hearsay
is not sufficient to establish a factual basis for the search warrant.
Marlowe refers us to Newby v. State, 701 N.E.2d 593 (Ind. Ct. App.
1998), in support of his position. In Newby, this court examined a
search warrant which was based on hearsay within hearsay, the officer seeking
the warrant was reporting what a witness had allegedly told another officer.
Id. at 598. Although the State argued that the statements were made
against Newbys penal interest and that the totality of the circumstances corroborated the
hearsay statements, this court held that the determination of probable cause lacked a
substantial basis and that the search was therefore unlawful. Id. at 602.
Marlowes reliance on Newby is misplaced. In Newby, the officers did not
know the informant before receiving information regarding Newby. In the present case,
the officers knew the confidential informant and the informant had provided reliable information
in the past.
See footnote Additionally, the police conducted two controlled buys with the
informant. This is sufficient to establish the reliability of the hearsay evidence
provided by the confidential informant.
Jaggers, 687 N.E.2d at 181.
Of greater concern in the present situation is the question of the location
to be searched. The confidential informant told Michigan City police that Marlowe
had drugs at his residence and that he was selling the drugs at
his place of business. The Michigan City Police Department then conducted two
controlled buys at Marlowes business. However, the search warrant was issued for
Marlowes residence rather than for his business. The State argues that,
even though the controlled buys were conducted at Marlowes business, the magistrate could
reasonably infer from the informants prior observation of contraband in Marlowes residence and
from the controlled buys that there would be contraband in Marlowes residence.
Furthermore, the State argues that the controlled buys substantiated the informants reliability, and
the informant had seen contraband in the residence the evening prior to the
We review the magistrates ruling that probable cause existed for a search based
on both the evidence and reasonable inferences drawn from the totality of the
evidence supporting the determination. Houser, 678 N.E.2d at 99. Although the
controlled buys occurred at Marlowes business, that was only one way in which
the confidential informants information was corroborated here. First, the confidential informant had
given correct information in the past. Second, some basis for the informants
information was shown in that he was present in Marlowes home and had
seen contraband the evening before the search. Furthermore, there had been an
anonymous tip called to the Michigan City Police Department stating that there was
illegal activity occurring in Marlowes residence. Even though the controlled buys occurred
at Marlowes business rather than at his home, the totality of the evidence
supports the magistrates determination that probable cause existed for a search warrant for
Although the description of Marlowes residence contained an incorrect address, the description was
sufficiently particular. Additionally, the required indicia of reliability was introduced to support
the confidential informant and to establish probable cause for the search warrant.
Finally, although the controlled buys occurred at Marlowes business, probable cause existed for
the search warrant for Marlowes residence. Therefore, we affirm the trial courts denial
of Marlowes Motion to Suppress.
BAILEY, J., and BARNES, J., concur.
Marlowes address is listed as 132 Western Avenue in his chronological case
summary as well. Appellants Appendix at 1.
Footnote: Marlowe contends that Officer Swistek admitted that he had never used the
confidential informant for a controlled buy situation prior to February 7, 2002.
Although this is true, it gives only half of the picture. Officer
Swistek testified at the hearing on Marlowes Motion to Suppress that he used
the confidential informant within the previous year for investigation and informational purposes.
Indiana Code section 35-33-5-2 merely requires that there be evidence of the confidential
informants credibility it does not state that the confidential informant must have
been involved in a previous controlled buy situation.