Breitweiser v. State, 52A02-9806-CR-545

• Decision Date: 22 January 1999
• Docket Number: No. 52A02-9806-CR-545,52A02-9806-CR-545
• Parties: Chad W. BREITWEISER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 496

704 N.E.2d 496

Chad W. BREITWEISER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A02-9806-CR-545.

Court of Appeals of Indiana.

Jan. 22, 1999.

Andrew C. Maternowski, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Chad Breitweiser appeals his convictions of possession of marijuana and maintaining a common nuisance. The sole issue raised on appeal is whether the trial court erred in denying Breitweiser's motion to suppress evidence seized during the execution of a search warrant at his residence.

We affirm.

FACTS

On February 25, 1997, police officers of the Peru Police Department went before the judge of the Miami Circuit Court, requesting that a search warrant be issued for a residence located at 382 East Main Street in Peru, Indiana. In support of the application for the search warrant, Indiana State Police Crime Scene Technician Dean Marks, who has had more than fifteen years experience identifying marijuana, testified at the hearing as follows:

Q And we will go through these one at a time, first of all as to 382 East Main, were you involved in [t]he trash pick up there?

A Yes.

Q On what dates?

A 2-10 of '97.

Q And as to the substance then found in the trash at that location, what if any marijuana or substances you thought to be marijuana were found there?

A Yes, there was remnants of plant like fragments found in the trash, along with mailing miscellaneous personal papers with names of Tama and Chad Breitweiser.

Q And did you send the items that you thought to be marijuana to the Indiana State Police Lab?

A Yes, I did.

Q And you have received lab results back on that?

A Yes, they c[a]me back showing positive for marijuana.

Q Then did you again pick up the trash from that location on February 17th of 1997?

A Yes.

Q And what, if anything, did you find in the trash on that date?

A Again found plant fragments, what appeared to be possible marijuana in [t]he trash.

Q In this particular situation did you find ... a pretty large quantity?

A Yes we did.

Q How large a quantity was it?

A Numerous stems ranging in size up to possibly six, eight inches long stuffed in a cereal box.

Q And on, based on your visual examination of the trash on February 17, 1997 do you have an opinion as to whether or not there was marijuana in the trash on that date?

A Yes, my opinion, I believe it to be marijuana.

Q And are you familiar with how that location 382 East Main was selected ... why was 382 East Main selected

A An anonymous source.

(R. 21-22). Based on this information, the judge issued a warrant authorizing a search of the residence for "marijuana and/or paraphernalia and/or sales records pertaining to illegal drug activity." (R. 18).

The police executed the search warrant at the residence on February 28, three days after the warrant was issued. During the search, police seized thirty-nine live marijuana plants, a hand-rolled cigarette containing marijuana, timers, lights, a CO sub2 tank, fertilizer, a brass pipe, marijuana seeds and other drug paraphernalia. Breitweiser, who lived at the residence, was present during the search.

The State charged Breitweiser with possession of marijuana and maintaining a common nuisance, both class D felonies. Prior to trial, Breitweiser filed a motion to suppress, asserting that the information supporting the search warrant was too stale to support a finding of probable cause. The trial court denied the motion, expressly finding that "[i]t is not unreasonable to conclude that, because marijuana was found on February 10 and February 17, 1997 that marijuana would also be present in the home at the time the warrant was issued on February 25, 1997." (R. 36). Breitweiser was subsequently convicted as charged.

DECISION

Breitweiser contends that the search of his residence was in violation of both the federal and state constitutions because the search warrant was issued without a showing of probable cause. Specifically, he argues that because there was an eight-day period between when the police last recovered marijuana plant fragments from his trash and the issuance of the warrant, the information obtained by the officers was stale and did not constitute probable cause. We disagree.

The Fourth Amendment to the United States Constitution and Article I, § 11 of the Indiana Constitution both require probable cause for the issuance of a search warrant and the exclusion of evidence obtained due to an illegal search or seizure. Figert v. State, 686 N.E.2d 827, 833 n. 1 (Ind.1997).

In determining whether to issue a search warrant, "[t]he task of the issuing magistrate [or judge] is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit [or testimony], there is a fair probability that contraband or evidence of a crime will be found in a particular place." Jaggers v. State, 687 N.E.2d 180, 181 (Ind.1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for determining that probable cause existed. Id. " '[S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination' of probable cause." Id. at 181-82 (quoting Houser v. State, 678 N.E.2d 95, 99 (Ind.1997)). The "reviewing court" for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. at 182. In this review, we consider only the evidence presented to the issuing judge or magistrate "and not post hac justifications for the search." Id.

It is a fundamental principle of search and seizure law that the information given to the magistrate or judge in the application for a search warrant must be timely. See Sgro v. United States, 287 U.S. 206, 210, 212, 53 S.Ct. 138, 140-141, 77 L.Ed. 260 (1932); Raymer v. State, 482 N.E.2d 253, 255 (Ind.1985)("Stale information only gives rise to a mere suspicion and not a reasonable belief, especially when the items to be obtained in a search are easily concealed and moved."). Accordingly, probable cause must be found to exist at the time the warrant issues, and the facts in support of the warrant must be so close to the time of the issue of the warrant as to justify a finding of probable cause at that time. Sgro, 287 U.S. at 210, 53 S.Ct. at 140.

While it is true that the age of the information supporting the application for a warrant can be a critical factor when determining whether there is probable cause, our courts have not established a precise rule as to how much time may elapse between the obtaining of the facts upon which the search warrant is based and the issuance of the warrant. Moran v. State, 644 N.E.2d 536, 542 (Ind.1994). Accordingly, probable cause is not determined by merely counting the number of days between the occurrence of the facts relied upon and the warrant's issuance. See 2 Wayne R. LaFave, CRIMINAL PROCEDURE § 3.7 (3rd Ed.1996). Instead, the staleness of the information must be judged by the facts and circumstances of each case. Armstrong v. State, 429 N.E.2d 647, 651 (Ind.1982).

Numerous Indiana cases have addressed the alleged staleness of facts shown as probable cause in an application for a search warrant. For example, in Ashley v. State, 251 Ind. 359, 241 N.E.2d 264 (1968), a search warrant to search a house for marijuana was issued on October 11. The search warrant was based on affidavits from officers alleging, in pertinent part, that an informant obtained marijuana from the residence on October 3. The Court stated:

Although there can be no precise rule as to how much time may intervene between the obtaining of the facts and the issuance of the search warrant, in dealing with a substance like marijuana, which can be easily concealed and moved about, probable cause to believe that it was in a certain building on the third of the month is not probable cause to believe that it will be in the same building eight days later.

Id. at 269.

In Blalock v. State, 483 N.E.2d 439, 444 (Ind.1985), officers flew over Blalock's greenhouse and observed dark green plants of varying heights arranged in rows on August 19, 1983. Although unable to discern the number and shape of the leaves on the plants, the officers concluded marijuana was being grown inside the greenhouse based on the security precautions, the remoteness of the area, and the color of the plants. Two days later, another officer trained in marijuana identification flew over the greenhouse and concluded that the greenhouse was being used for marijuana production. The officers compared their opinions, and on August 23, a search warrant was issued.

On appeal, the defendant maintained that the delay in issuing the search warrant was excessive. Id. at 444. Our supreme court held that time periods of four days and two days between officers' respective observations and the issuance of the search warrant were not so excessive as to invalidate the warrant where the defendant made no showing that the marijuana growing in the greenhouse at issue could be expected to be moved within that time span. Id.

In Bigler v. State, 602 N.E.2d 509, 516 (Ind.Ct.App.1992), the facts alleged in the probable cause affidavit established an ongoing operation lasting at least two years, the last known act of distribution having occurred twenty-one days before the officers sought the warrant. The officers sought the warrant to search for evidence that would prove that distribution of amphetamines had been or was being committed. We stated that under such circumstances, the element of time loses significance and need...