Bunnell v. State
| Citation | 160 N.E.3d 1142 |
| Decision Date | 18 December 2020 |
| Docket Number | Court of Appeals Case No. 20A-CR-981 |
| Parties | Jesse R. BUNNELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Attorney for Appellant: Dylan A. Vigh, Law Offices of Dylan A. Vigh, LLC, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Josiah Swinney, Deputy Attorney General, Indianapolis, Indiana
[1] In this interlocutory appeal, Jesse Bunnell challenges the Greene Superior Court's summary denial of his motion to suppress evidence allegedly obtained through an unlawful search and seizure of his home. On the unique facts of this case, we find that the search-warrant affidavit failed to provide the warrant-issuing judge with a substantial basis for its probable-cause determination. Because there was no probable cause to issue the warrant, the search of Bunnell's home was unlawful.
[2] We reverse.
[3] Jesse Bunnell rented a home where he lived with Amber Richardson and two children. On the afternoon of April 11, 2018, Alexandria Odell called the Greene County Sheriff's Department to request a welfare check at Bunnell's home. Odell told police that her fiancé, Ivan Stetter—who was deployed overseas at the time—was receiving text messages from Richardson indicating that she had been battered by Bunnell inside the residence.1
[4] Deputy David Elmore responded, and upon arriving at the home, he noticed a recreational vehicle (RV) and a jeep parked on the property. Deputy Elmore approached the front door and knocked multiple times, but no one answered. He then walked toward the back of the house. On the way, he noticed a cable running from one of the home's ground-level windows into the RV. He knocked on the RV, but no one answered. Deputy Elmore then continued to the back of the home where he noticed two doors: one on the ground level and one at the top of exterior stairs. He first knocked on the ground-level door, but again, no one answered. So, he proceeded up the exterior stairs to the other door.
[5] At the top of the stairs, Deputy Elmore made two observations. First, he noticed "an exterior security camera with wires going into the home through the door jam." Appellant's App. p. 16. Second, he observed "through [his] training and experience the smell of raw Marijuana emitting from the door." Id. Meanwhile, Deputy Christopher Anderson had arrived to assist; he also "advised through his training and experience [that] he smelled raw Marijuana ... emitting from the door at the top of the exterior stairs." Id. Deputy Elmore knocked on this door as well, but no one answered.
[6] After knocking on the home's three doors, Deputy Elmore spoke with Richardson over the phone and confirmed that she and the children were safe at a domestic violence shelter. Deputy Elmore also advised dispatch that he was applying for a search warrant "due to the odor of raw Marijuana coming from the residence." Id. at 26. That warrant sought authorization to search the home, the RV, the jeep, and a detached garage for "any and all illegal substances and paraphernalia associated with illegal substances." Id. at 15–16.
[7] About eight minutes after submitting the search-warrant affidavit, a judge signed off on the warrant but limited its scope to the house. Id. at 17–18. Inside, officers found approximately nine pounds of marijuana, multiple marijuana plants (in the basement), smoking pipes, syringes, and other drug paraphernalia. Deputy Elmore subsequently applied for and was granted a search warrant for the RV, where he found additional marijuana. As a result, the State charged Bunnell with one count each of Level 6 felony dealing in marijuana, Level 6 felony possession of marijuana, Level 6 felony maintaining a common nuisance, and Class C misdemeanor possession of paraphernalia.
[8] Bunnell filed a motion to suppress the evidence recovered from the home and RV alleging that the search and seizure violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. More specifically, Bunnell made two claims: (1) the exterior stairwell and upstairs door "were not the normal means of entry-or-exit to and from" the home, and thus Deputy Elmore's detection of marijuana "within this area" constituted a warrantless search, id. at 36–39; and (2) the search warrant was not supported by probable cause because there was no evidence that the officers had "the requisite training and experience in detecting the odor of raw marijuana emanating from a [h]ome," id. at 39–42.
[9] After a hearing, the trial court summarily denied Bunnell's motion. Burnell filed a motion requesting the trial court to certify its denial for interlocutory appeal, which the court granted. This court then accepted jurisdiction over the appeal.
[10] Bunnell presents several arguments on appeal, one of which we find dispositive: whether the initial search-warrant affidavit supplied the issuing judge with a substantial basis for concluding there was probable cause to search his home.2
[11] Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require search warrants based on probable cause. U.S. Const. Amend. IV ; Ind. Const. Art. 1, § 11. This constitutional requirement is codified in Indiana Code section 35-33-5-2, which specifies the information that must be included in an affidavit supporting a search warrant. One requirement is that the affidavit set "forth the facts known to the affiant through personal knowledge ... constituting the probable cause." I.C. § 35-33-5-2(a)(3).3
[12] In deciding whether there is probable cause, "[t]he task of the issuing magistrate is simply to make a practical, common-sense 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." Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In reviewing that decision, our job is to determine whether the affidavit provided the warrant-issuing judge with a "substantial basis" for finding probable case. Id. at 238–39, 103 S.Ct. 2317 (citation omitted). And though we afford a probable-cause determination "great deference," id. at 236, 103 S.Ct. 2317, it "is not boundless," United States v. Leon , 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We must ensure that the judge "perform his neutral and detached function and not serve merely as a rubber stamp for the police." Id. (cleaned up). A warrant issued without probable cause is invalid, and thus any subsequent search based on the warrant is illegal. Heuring v. State , 140 N.E.3d 270, 273 (Ind. 2020). Generally, under the exclusionary rule, any evidence obtained directly and derivatively from the illegal search must be suppressed. Id.
[13] Here, Bunnell argues that the initial search-warrant affidavit failed to provide the judge with a substantial basis for finding probable cause. More specifically, he notes that "the only evidence that supports" probable cause is the deputies' detection of the odor of raw marijuana, which was based on their "training and experience." Appellant's Br. at 20–21. But because there is no information about either deputies' relevant training or experience in detecting the odor of raw marijuana, Bunnell contends that the affidavit is insufficient to establish probable cause. He thus asserts that the seized evidence pursuant to both the initial search warrant and the subsequently issued warrant must be suppressed. The State disagrees, maintaining that "the odor of raw marijuana with an identifiable source justified the magistrate's initial probable-cause determination." Appellee's Br. at 13.4
[14] On these unique facts and circumstances, we agree with Bunnell. To explain why, we address a narrow issue of first impression: whether law enforcement's detection of the odor of marijuana based on unspecified "training and experience" by itself provides a warrant-issuing judge with a substantial basis for concluding that probable cause exists to search a home.
[15] Over seventy years ago, the Supreme Court of the United States declared that "the presence of odors" can establish probable cause to issue a search warrant if two conditions are met: (1) the issuing judicial officer "finds the affiant qualified to know the odor"; and (2) the odor "is one sufficiently distinctive to identify a forbidden substance." Johnson v. United States , 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
[16] In the years since Johnson , this court has consistently held, beginning with State v. Hawkins , 766 N.E.2d 749, 751–52 (Ind. Ct. App. 2002), trans. denied , that when a trained and experienced police officer detects the distinctive odor of a drug—such as raw or burnt marijuana—coming from a vehicle, the officer has probable cause to search that vehicle. See Marcum v. State, 843 N.E.2d 546, 548 (Ind. Ct. App. 2006) ; see also Shorter v. State , 144 N.E.3d 829, 838–39 (Ind. Ct. App. 2020) (), trans. denied . Notably, however, in each of those decisions law enforcement's qualifications to detect the odor were either not contested, Hawkins , 766 N.E.2d at 752, or were sufficiently established, Marcum , 843 N.E.2d at 548 ; Shorter , 144 N.E.3d at 839. The same was not true in State v. Holley , 899 N.E.2d 31 (Ind. Ct. App. 2008), trans. denied .
[17] In Holley , officers pulled over a vehicle and subsequently searched it after detecting "the smell of raw marijuana emanating" from the occupants. Id. at 32. The trial court granted Holley's pretrial motion to suppress the evidence seized from the car. Id. at 33. On the State's appeal, we noted...
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Bunnell v. State
...failed to adequately detail the deputies’ relevant training or experience in detecting the odor of raw marijuana. Bunnell v. State , 160 N.E.3d 1142, 1151 (Ind. Ct. App. 2020). Finding that issue dispositive, the Court of Appeals declined to address two other issues Bunnell raised. Id. at 1......