Carnes v. State, No. 2-283A37

Docket NºNo. 2-283A37
Citation480 N.E.2d 581
Case DateJuly 23, 1985
CourtCourt of Appeals of Indiana

Page 581

480 N.E.2d 581
Michael CARNES and Leah J. Carnes, Appellants (Defendants Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-283A37.
Court of Appeals of Indiana,
Second District.
July 23, 1985.

Page 583

William F. Thompson, Jacquelyn Thompson, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Appellants Michael and Leah Carnes appeal their convictions for unlawful possession of marijuana (under Ind.Code Sec. 35-48-4-11 (1982)) and for unlawful possession of methaqualone (under Ind.Code Sec. 35-48-4-7 (1982)). Appellants were given a two-year, suspended sentence, placed on a one-year probation, and ordered to perform one hundred hours of community service. The Carneses raise the following issues:

(1) whether the trial court erred in denying the Carneses' motion to suppress the controlled substances seized in the course of executing the search warrant;

(2) whether there was sufficient evidence to establish constructive possession of the marijuana by Leah 1 and of the methaqualone by Michael and Leah;

(3) whether the trial court erred in denying the Carneses' motion to dismiss;

(4) whether the trial court erred in denying the Carneses' motion for disclosure of the identity of the State's informant.

We find no error and affirm the convictions.

Facts

On October 16, 1981, a search warrant was issued for the residence at 3242 South Collier Street in Indianapolis. The warrant was issued on the affidavit of Police Officer Walton whose sworn statement read as follows:

"[A] controlled substance to wit: Marihuana Cannabis Sativa is being kept, used and sold at [above address] ... which is unlawful. Said residence is under the control of Mick Carnes. This affiant basis [sic] his belief on the following information: that a confidential, credible and reliable informant was personally inside the above stated address within the past seventy-two hours of October 16, 1981 and did there observe Marihuana being kept, used and sold."

Record at 238. The affidavit further described the informant's familiarity with marijuana and his reliability.

Officer Walton and two other officers served the warrant on October 16, 1981. From a position near the front door, Walton

Page 584

saw a woman, whom he later identified as Leah Carnes, lying on the living room couch. He yelled to her that he was a police officer, entered through the front door, and advised her of the search warrant.

Michael Carnes arrived at the residence while Walton was talking to Leah Carnes. After being advised of the search warrant, Michael volunteered that there was marijuana in the refrigerator. In a search of the remainder of the residence, the officers found a package of methaqualone pills 2 and a small quantity of marijuana. Those controlled substances were found in the Carneses' bedroom in a package under a tray which rested on a small bench or table.

Michael was immediately arrested for unlawful possession of marijuana, and on November 19, 1981, the State charged him with unlawful possession of methaqualone. Leah Carnes was charged on November 19, 1981 with unlawful possession of both substances. Between October 16, 1981 and November 19, 1981, Walton attempted to persuade Michael to become an informant for him. Pending Michael's decision, Walton had withheld filing the additional charge against Michael and the charges against Leah. The defendants were convicted on all counts.

I. Motion to Suppress: Probable Cause for Warrant

The Carneses object to the trial court's denial of their motion to suppress the substances seized pursuant to the search warrant. They attack the adequacy of the warrant on two premises:

A) the warrant was not supported by an adequate showing of criminal activity and

B) the factual information was too remote in time to allow a neutral magistrate to reasonably conclude that probable cause existed to search the residence.

A. Showing of Criminal Activity

The court in Layman v. State, 407 N.E.2d 259 (Ind.App.1980) analyzed the approach of a reviewing court faced with the sufficiency of the factual basis presented for the issuance of a search warrant as follows:

"Our approach is two-fold. First we identify the questions a court must ask in determining whether a search is reasonable under the circumstances, i.e., whether probable cause exists for a warrant to issue. Second, we apply the standard set out by the Indiana Supreme Court in determining whether enough facts are presented to enable a magistrate to answer these questions independently and apart from the conclusions of the affiant.

While the quantity and nature of the constituent elements necessary to establish probable cause are inextricably related to each given set of facts, there are two basic questions pertinent to the determination of probable cause for a search under any set of facts: (1) whether the particular items sought to be seized are sufficiently connected with criminal activity and (2) whether the items are to be found in a particular place. If sufficient facts are presented so that a neutral and detached magistrate can make an affirmative response to these questions, probable cause may be presumed to exist thus making the issuance of the search warrant reasonable."

407 N.E.2d at 263. (citations omitted)

In the instant case, Walton related that the informant had personally observed marijuana being "kept, used and sold" at 3242 South Collier, Indianapolis, Indiana, the residence of Michael and Leah Carnes. Carneses argue the informant's allegation that marijuana was seen being "kept, used and sold" is conclusory in nature.

An affidavit for a search warrant must apprise the magistrate of the underlying facts and circumstances which tend to

Page 585

show probable cause exists for the search. Flaherty v. State, 443 N.E.2d 340 (Ind.App.1982); Layman v. State, 407 N.E.2d 259 (Ind.App.1980). Those attestations upon which the probable cause is premised must be attestations of fact and not mere conclusions of the affiant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Short v. State, 443 N.E.2d 298 (Ind.1982).

The informant's statement in the subject affidavit is not conclusory in the sense that term was used in Aquilar. In Aquilar, the court found inadequate an officer's statement that "affiants have received reliable information from a credible person and do believe," that narcotics are stored in a home. 378 U.S. at 109, 84 S.Ct. at 1511. The conclusory statement gave the magistrate no basis for making a disinterested determination regarding probable cause. In Officer Walton's affidavit, however, the informant stated he personally observed marijuana being "kept, used and sold". The warrant was issued upon those underlying circumstances, not upon any conclusions drawn therefrom by the affiant or the informant, as occurred in Aquilar.

The underlying facts provided the issuing authority in the present case were sufficient for a determination of probable cause.

B.

The Carneses' second objection to the affidavit for probable cause is that the factual information provided is too remote in time to support the finding of probable cause to search. The affidavit recited that the informant had seen marijuana in the Carneses' residence within seventy-two hours of the date of the affidavit and the issuance of the warrant, October 16, 1981.

Our supreme court rejected an identical argument in Tinnin v. State, 275 Ind. 203, 416 N.E.2d 116 (1981). In Tinnin, the affidavit was dated and issued August 1, 1978, and stated that within the past seventy-two hours of August 1, 1978, the informant had personally observed the accused in possession of a substance he believed to be heroin. The court held seventy-two hours is a period of time for which it is reasonable to believe the contraband would still be present in the home. 3

Here, too, the relevant observation was within seventy-two hours of the application for a warrant. Thus, the issuing authority's finding that probable cause existed for the search warrant was not based on factual information too remote to support a finding of probable cause. The trial court properly denied Carneses' motion to suppress the substances gathered in the search of their residence.

II. Sufficiency of the Evidence

The Carneses next question whether the evidence presented constitutes "substantial evidence of probable value" supporting the verdict against them. 4 We hold...

To continue reading

Request your trial
38 practice notes
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...view"; and the location of contraband in close proximity to items owned by the defendant. Carnes v. State (1985), Ind.App., 480 N.E.2d 581, 586. "In each of these instances of 'additional circumstances' exists the probability that the presence and character of the contraband was n......
  • Lampkins v. State, No. 18S04-9609-CR-597
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1997
    ...substances and their presence. Fassoth, 525 N.E.2d at 323; Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.1984). See Carnes v. State, 480 N.E.2d 581, 586 (Ind.Ct.App.1985) (listing additional circumstances and cases in support thereof). We acknowledge that some of the testimony presented by......
  • State v. Hernandez, No. 91-683-C
    • United States
    • United States State Supreme Court of Rhode Island
    • May 4, 1994
    ...inferred from the possession alone. Rather, the inference must be supported by additional circumstances." Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct.App.1985). Constructive possession may occur when the place where the substance was found was in the joint dominion and control of the......
  • State v. Gutierrez, No. 86, Sept. Term, 2014.
    • United States
    • Court of Special Appeals of Maryland
    • January 28, 2016
    ...court reasoned that no evidence indicated that Gee frequented the basement laundry room and distinguished the case from Carnes v. State, 480 N.E.2d 581, 586 (Ind.Ct.App.1985), in which a conviction based on constructive possession was upheld when drugs were found in a common area of a kitch......
  • Request a trial to view additional results
38 cases
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...view"; and the location of contraband in close proximity to items owned by the defendant. Carnes v. State (1985), Ind.App., 480 N.E.2d 581, 586. "In each of these instances of 'additional circumstances' exists the probability that the presence and character of the contraband was n......
  • Lampkins v. State, No. 18S04-9609-CR-597
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 1997
    ...substances and their presence. Fassoth, 525 N.E.2d at 323; Davenport v. State, 464 N.E.2d 1302, 1307 (Ind.1984). See Carnes v. State, 480 N.E.2d 581, 586 (Ind.Ct.App.1985) (listing additional circumstances and cases in support thereof). We acknowledge that some of the testimony presented by......
  • State v. Hernandez, No. 91-683-C
    • United States
    • United States State Supreme Court of Rhode Island
    • May 4, 1994
    ...inferred from the possession alone. Rather, the inference must be supported by additional circumstances." Carnes v. State, 480 N.E.2d 581, 586 (Ind. Ct.App.1985). Constructive possession may occur when the place where the substance was found was in the joint dominion and control of the......
  • State v. Gutierrez, No. 86, Sept. Term, 2014.
    • United States
    • Court of Special Appeals of Maryland
    • January 28, 2016
    ...court reasoned that no evidence indicated that Gee frequented the basement laundry room and distinguished the case from Carnes v. State, 480 N.E.2d 581, 586 (Ind.Ct.App.1985), in which a conviction based on constructive possession was upheld when drugs were found in a common area of a kitch......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT