Caudle v. State

• Decision Date: 04 June 2001
• Docket Number: No. 49A02-0008-CR-546.,49A02-0008-CR-546.
• Citation: 749 N.E.2d 616
• Parties: Willie O. CAUDLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

749 N.E.2d 616

Willie O. CAUDLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0008-CR-546.

Court of Appeals of Indiana.

June 4, 2001.

Hilary Bowe Ricks, Indianapolis, Indiana, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge.

Willie O. Caudle ("Caudle") appeals his conviction for dealing in cocaine, a class A felony.¹ Caudle raises one issue, which we expand and restate as:

1. whether the trial court erred in denying Caudle's motion to suppress evidence because the supporting affidavit provided insufficient probable cause to justify the issuance of a search warrant for the residence; and

2. whether the trial court erred in denying Caudle's motion to suppress because the search warrant was stale by the time it was executed.

We affirm.

The facts most favorable to the conviction follow. In early July 1999, a confidential informant ("CI") told Indianapolis Police Detective Douglas Cook that crack cocaine was being sold from a house at 1114 S. Harlan Street by a man named "Snowbird," a.k.a. Columbus Caudle ("Columbus"). On July 9, Detective Cook took the CI to that house to complete a controlled buy. Both before and after the CI entered the house, Detective Cook searched the CI for money, drugs and contraband. The CI went to the house with only money and returned with only cocaine. The CI stated that Columbus sold the cocaine. Based on this evidence, on July 9, 1999, Detective Cook filed a probable cause affidavit to request a search warrant for the house at 1114 S. Harlan Street and for Columbus. A magistrate issued the search warrant later that same day.

Over the next nine days, Detective Cook conducted surveillance on the house, but he never saw Columbus at the residence. In addition, during those nine days, Detective Cook attempted other controlled buys from the house, but another buy from Columbus did not occur because apparently Columbus was never there. However, on July 16, Caudle, who was in his car outside the residence, offered to sell powdered cocaine to the CI, who inexplicably did not purchase the drugs. On July 19, the tenth day following the issuance of the search warrant, Detective Cook executed the search warrant at approximately six o'clock in the morning. During the search, officers found 12.4 grams of cocaine under the mattress of the bed where Caudle had been sleeping and found handguns and drug paraphernalia elsewhere in the bedroom.

Caudle was charged with dealing in cocaine as a class A felony, possession of cocaine as a class C felony,² and possession of cocaine and a firearm as a class C felony.³ Before his trial, Caudle filed a motion to suppress the cocaine and the handguns. The trial court denied Caudle's motion. A jury convicted Caudle of all three charges. The trial court judge entered judgment of conviction only on dealing in cocaine as a class A felony and sentenced Caudle to forty years incarceration.

Our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). We determine whether substantial evidence of probative value exists to support the trial court's denial of the motion. Id. "We do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's ruling." Id. However, this review is different from other sufficiency matters because we must also consider uncontested evidence that is favorable to the defendant. Methene v. State, 720 N.E.2d 384 (Ind.Ct.App.1999).

I.

The first issue is whether the trial court erred in denying Caudle's motion to suppress evidence because the supporting affidavit provided insufficient probable cause to justify the issuance of a search warrant for the residence. The magistrate who originally issued the search warrant was to have made "`a practical, commonsense decision whether, given all the circumstances set forth in the affidavit. . . there is a fair probability that contraband or evidence of a crime [would] 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)). When we review the sufficiency of the evidence in an affidavit, we review de novo the trial court's decision to uphold the magistrate's determination of probable cause. Houser v. State, 678 N.E.2d 95, 98 (Ind.1997). However, we give "significant deference" to the magistrate's decision that probable cause existed. Id. at 99. When deciding whether there was a "`substantial basis'" for deciding that probable cause existed, we "`focus on whether reasonable inferences drawn from the totality of the evidence support the determination'[.]" Jaggers, 687 N.E.2d at 181-182 (quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332, and Houser, 678 N.E.2d at 99). In addition, our decision must be based only upon the evidence presented to the issuing magistrate, not on justifications for the search that were offered after the search occurred. Jaggers, 687 N.E.2d at 182.

The probable cause affidavit in question provided, in pertinent part:

Detective Douglas L. Cook, Police Officer, SWEARS [OR] AFFIRMS THAT HE BELIEVES AND HAS GOOD CAUSE TO BELIEVE: that a controlled substance, to wit: Cocaine, an extract of the coca plant, the possession of which is unlawful, is being kept, used and sold from the residence located at 1114 S. Harlan St., Indianapolis, Marion County, Indiana and said residence is under the control of a B/M identified as Columbus Caudle, 54 years of age, DOB 11-12-44, SSN. . . .

This affiant bases his belief on the following information: that within the past seventy-two (72) hours of July 9, 1999, a confidential informant came personally to this affiant. The confidential informant was searched for illegal contraband, drugs, and U.S. Currency. Upon said search, no illegal contraband, drugs or U.S. Currency were found on the said informant. Then the confidential informant was provided by this affiant with U.S. Currency. This affiant followed the confidential informant to 1114 S. Harlan St., Indianapolis, Marion County, Indiana, and personally observed the confidential informant go to the residence, knock and was admitted into the residence. Said informant stayed inside the residence (5) minutes, and said informant exited the residence and returned to this affiant. Said informant handed this affiant a quantity of suspected Cocaine which, when tested, proved to be positive for cocaine. Said informant was again searched and no illegal contraband, drugs, or U.S. Currency was found. Said informant is confidential in that revealing the identity of the informant could directly endanger the life of the informant and would destroy any future use of the informant.

Based upon the above information, I am requesting a search warrant be issued for the residence . . . .

I further request this search to include the person of a Columbus Caudle . . . and the residential curtilage.

Record, p. 165.

Caudle alleges that the affidavit was insufficient in a number of respects. He claims that the evidence in the affidavit fails to satisfy the requirements of Ind. Code § 35-33-5-2(b) because the affidavit does not inform the magistrate about the reliability of the confidential informant. Caudle also claims that Detective Cook's description of the controlled buy was insufficient to support probable cause under Methene, 720 N.E.2d 384.⁴

Ind.Code § 35-33-5-2 provides, in pertinent part:

(b) When based on hearsay, the affidavit must either:

(1) 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

(2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

Here, contrary to Caudle's allegation, the affidavit is not based on hearsay. Instead, it is based on the personal observations of Detective Cook, who took the CI to make a controlled buy from the house at 1114 S. Harlan Street. Record, p. 165. As a result it was not necessary for Detective Cook to state facts supporting the reliability of the CI as required by Ind. Code § 35-33-5-2(b) in order for the search warrant to be valid. See Mills v. State, 177 Ind.App. 432, 434-435, 379 N.E.2d 1023, 1025-1026 (1978),

cited with approval in Haynes v. State, 431 N.E.2d 83, 86 (Ind.1982).

In addition, the affidavit here is distinguishable from the affidavit found insufficient to support probable cause in Methene, 720 N.E.2d 384. In Methene, the attesting officer did not provide any details about the drug buy that would have allowed the magistrate to make an informed decision that a "controlled" buy had occurred. Id. at 390. Such details include whether the CI was searched before and after the buy, and whether the officer watched the CI go to and come from the home. Id. Here, on the other hand, the affidavit clearly provides all of this information. Record, p. 165. Detective Cook's actions and observations while using the CI to effectuate the controlled buy, as outlined in the affidavit, were sufficient to justify the magistrate's finding of probable cause to issue a warrant for the search of the residence at 1114 S. Harlan. See Mills, 177 Ind.App. at 434-435,

379 N.E.2d at 1025-1026. Consequently, Caudle's claims fail.

II.

The second issue is whether the trial court erred in denying Caudle's motion to suppress because the search warrant was stale by the time it was executed. A search warrant must be executed within ten days after the date that it is issued. Ind. Code § 35-33-5-7. Here, the search of the house at 1114 S. Harlan Street occurred approximately seven hours before that ten-day period would have expired. Therefore, Caudle does not...