ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROY L. DICKINSON STEVE CARTER
Franklin, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
DAVID T. CREEKMORE, ) ) Appellant-Defendant, ) ) vs. ) No. 41A01-0304-PC-157 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
However, [d]eclarations against penal interest can furnish sufficient basis for establishing the credibility
of an informant within the meaning of Ind. Code § 35-33-5-2(b)(1). Houser,
678 N.E.2d at 100.
At the hearing to determine whether the search warrant would issue, Detective Sanders told the court:
[T]he reason I believe hes telling me the truth, Your Honor, being truthful that there is more in the house is that he admitted to me that he is delivering drugs to a residence who [sic] is transferring the drugs to . . . and admitted to me that he had done it on other occasions and also [sic], which was against his own interest[.]
(Defendants Ex. 1, p. 6.) In addition, Detective Sanders informed the court Garresh said his dealers name was Dirty Dave and Detective Walters, who investigated drug crimes in the Nineveh area, reported that he had heard tips regarding a Dirty Dave in that area.
In Iddings, we held that an informant was a credible source because, while informing police that drugs would be found at the defendants house, the informant also implicated himself in the manufacture of methamphetamine with the defendant at the defendants house. Iddings, 772 N.E.2d at 1014. Similarly, here, Garreshs credibility can be inferred because in reporting the source of the drugs in his car, Garresh implicated himself in the delivery of marijuana and psilocybin mushrooms from Creekmore to someone in Indianapolis. In addition, that Detective Walters had heard of Dirty Dave suggests Garresh was being honest about his dealers name. Accordingly, there was a substantial basis for the issuing judge to conclude there was probable cause to believe marijuana and mushrooms would be found at Creekmores house. See id. The trial court did not err when it denied Creekmores motion to suppress based on lack of probable cause. See id.
2. Improper Road Names
Creekmore claims the search warrant was fatally defective because of improper road designations. Creekmores residence is three houses from the intersection of 775 South and 100 East in Nineveh, Indiana. However, Detective Sanders requested a warrant to search the third house from the intersection of 775 W and 100 N in Nineveh, Indiana. (Defendants Ex. 2, at 5.) Then, when Detective Walters told Detective Sanders those numbers, but not the directional designations, correspond to an intersection in Nineveh, Detective Sanders contacted the Judge to obtain an addendum to the warrant. Judge Gray issued an addendum indicating the roads were 775 N. and 100 W. (Defendants Ex. 3, at 1.)
As a preliminary matter, we must deal with the validity of the addendum to the search warrant. Creekmore claims reversible error occurred because the telephone communication between Detective Sanders and Judge Gray, during which Detective Sanders requested the addendum to the search warrant changing the location of the house, was not recorded as required by Ind. Code § 35-33-5-8. See footnote In State v. Davis, 770 N.E.2d 338, 342 (Ind. Ct. App. 2002), we concluded that a search warrant obtained pursuant to an unrecorded telephone call was invalid because there was no way for the State to prove that the requirements of the Fourth Amendment had been met. In Timmons v. State, 723 N.E.2d 916, 920 (Ind. Ct. App. 2000), affd in part & vacated in part on rehg 734 N.E.2d 1084 (Ind. Ct. App. 2000), trans. denied 741 N.E.2d 1259 (Ind. 2000), we held an arrest warrant was nonexistent because the State failed to comply with most of the requirements of Ind. Code § 35-33-5-8.
This case is distinguishable from those two cases because here, probable cause for the search warrant was demonstrated in the presence of the judge at the earlier probable cause hearing, thus satisfying the requirements of Ind. Code § 35-33-5-2. See footnote The only fact dealt with during the telephone call was the directional coordinates of the streets listed in the warrant. Those directional coordinates did not affect whether there was probable cause to search Creekmores house. Accordingly, we need not hold that the entire warrant was invalid or non-existent for failure to comply with the recording requirement of Ind. Code § 35-33-5-8. At most we need consider only the directional coordinates invalid.
However, those incorrect directional coordinates do not require us to suppress the evidence collected. First, the good faith exception allowed Detectives Sanders and Walters to rely on the addendum. If evidence is collected pursuant to a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid, then the evidence is admissible at trial. Ind. Code § 35-37-4-5(b)(1)(A).
In Timmons, we held the good faith exception could not apply to the warrant obtained in violation of Ind. Code § 35-33-5-8 because the warrant was not free from obvious defects when police completely failed to follow the statutory procedure for obtaining a telephonic warrant. Timmons, 734 N.E.2d at 1088. As we noted above, however, the facts here are different from Timmons because Detective Sanders was obtaining only a change in the directional coordinates of the intersection where the house was located in Nineveh. Both Detective Sanders and Detective Walters had reason to believe the addendum would be correct. Because Detective Sanders had not completely failed to follow the proper procedures for obtaining the search warrant, he could in good faith rely on the addendum to the warrant being valid.
Second, incorrect address information does not necessarily invalidate a warrant. Search warrants must particularly describe the place to be searched. U.S. Const. Amend. IV (warrant shall particularly describ[e] the place to be searched); Ind. Const., Art. I, Sect. 11 (No warrant shall issue, but . . . particularly describing the place to be searched . . . .); Ind. Code § 35-33-5-2 (No warrant for search . . . shall be issued until there is filed with the judge an affidavit: (1) particularly describing (A) the house or place to be searched . . . .). Nevertheless, suppression of evidence collected is not required, despite a minor error in the address, if the warrant sufficiently described the property to be searched despite the mistake. Houser, 678 N.E.2d at 101.
For example, in Houser, the following error occurred in the search warrant:
[T]he warrant here erroneously placed Lees Automotive at 1435 South Hoyt Avenue, when the correct address was 1435 South Kinney Avenue. However, the warrant did correctly state that officers were to search a cement block building bearing the words Lees Automotive. Housers business was located on a triangular piece of land bordered by South Hoyt, South Kinney and West Eighth Street.
Id. at 100-101. Our supreme court held that under those facts, the warrant was sufficiently specific to pass constitutional and statutory muster. Id. at 101.
Herein, the search warrant indicated the following information regarding Creekmores residence:
YOU ARE HEREBY AUTHORIZED, DIRECTED AND COMMANDED To Search the following residence; Po [sic] Box 121, Nineveh, Johnson County, Indiana. The residence appears to be a one[-]story residence that is light greenish in color with black in color shutters on the residence. The residence also is located just north of the intersection of 775 W and 100 N in Johnson County. The residence appears to be the third residence north from the intersection of 775/100 and is located on the west side of County road 100. The residence appears to have a chain link style fence around the residence, also a silver in color ford vehicle bearing Indiana Lic#KA9VRB is located on the north side of the residence in the driveway.
(Def. Ex. 2, p. 5.) The addendum modified the warrant such that the location of the residence to be searched . . . [is] 775 N. and 100 W. on the south side of 100. (Def. Ex. 3, p. 3.)
While 775 West, 100 North, 775 North, and 100 West do not pass through Nineveh, Indiana, 775 South and 100 East intersect in downtown Nineveh. Creekmores house is the third house from that intersection, and his house matches the visual description given. Detective Sanders testified only one house in Nineveh, Creekmores house, matched the description in the search warrant. Given these facts, the warrant here sufficiently described the property to be searched despite the mistake. See Houser, 678 N.E.2d at 101.
Because the evidence indicated Garreshs hearsay statement was reliable, probable cause existed for the search of Creekmores house. Improper road designations did not make the warrant invalid because the warrant sufficiently described the place to be searched, and Detectives Sanders and Walters in good faith could rely on the addendum to the warrant. Accordingly, the trial court did not err when it denied Creekmores motion to suppress.
DARDEN, J., and BARNES, J., concur.