Creekmore v. State

• Citation: 800 N.E.2d 230
• Decision Date: 18 December 2003
• Docket Number: No. 41A01-0304-PC-157.,41A01-0304-PC-157.
• Parties: David T. CREEKMORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

800 N.E.2d 230

David T. CREEKMORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 41A01-0304-PC-157.

Court of Appeals of Indiana.

December 18, 2003.

Roy L. Dickinson, Franklin, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

David T. Creekmore appeals his conviction and sentence. He questions whether the trial court erred by failing to suppress evidence gathered from his home pursuant to a search warrant. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 2, 2001, Detective Larry Sanders of the Morgan County Sheriff's Department was working road patrol on State Road 37 when he noticed a car speeding southbound and making unsafe lane changes. Detective Sanders stopped the vehicle and gave a traffic citation warning to the driver, Tyler Garresh, whom Detective Sanders had never before met. When Detective Sanders looked into the back seat of Garresh's car, he saw marijuana plants, stems, and seeds. Garresh consented to a search of his vehicle, and Detective Sanders found marijuana and psilocybin mushrooms.¹

Detective Sanders seized the illegal substances and asked Garresh to reveal the source of the marijuana and mushrooms. Garresh said the dealer was named "Dirty Dave," (Tr. at 149), and described the dealer's residence in detail. Detective Sanders and Garresh drove to the residence in Nineveh, Indiana, and the residence matched the description Garresh had given. Before leaving Nineveh, Detective Sanders wrote down the license plate information of the vehicles in the driveway and noted the house was the third from the intersection of "775 West" and "100 North." (Id. at 46.) Detective Sanders took Garresh back to his car and let him go.

Detective Sanders ran a plate check on a silver Ford in the driveway of the house in question, and the car was registered to Fred Creekmore at a post office box in Nineveh. Detective Sanders contacted a detective from the Johnson County Sheriff's Department to inquire whether he had heard of "Dirty Dave." Detective Walters reported "he had heard someone, or that name sounded familiar to him," (id. at 26), and he "believed that he was familiar with this subject." (Id. at 30.)

Detective Sanders contacted the prosecutor's office and appeared before Judge Gray to request a search warrant. After obtaining the warrant, he met with Detective Walters and other officers to plan the execution of the warrant. At that time, Detective Walters informed Detective Sanders that the directional coordinates on the warrant were incorrect because 775 West and 100 North do not meet in Nineveh. Detective Sanders called Judge Gray and requested an addendum to the search warrant indicating the correct coordinates.² Judge Gray issued an addendum indicating the house was near 775 North and 100 West.³ After talking to Judge Gray on the telephone, the officers executed the warrant and found marijuana and a system for indoor cultivation of psilocybin mushrooms.

The State charged Creekmore with dealing in a controlled substance, a Class B felony,⁴ possession of marijuana in excess of thirty grams, a Class D felony,⁵ and dealing in a controlled substance, a Class B felony.⁶

Creekmore filed a motion to suppress the evidence seized from his house. The trial court denied that motion, and it certified its denial for an interlocutory appeal. We declined to accept jurisdiction over that interlocutory appeal, and Creekmore's case proceeded to trial. During his bench trial, Creekmore renewed his request to suppress the evidence, and the trial court again denied that motion. The court found him guilty of possession of marijuana in excess of thirty grams and guilty of dealing in a controlled substance. The court sentenced Creekmore to a fifteen-year sentence to be served "nine years executed" and six years "suspended to active probation" for dealing in a controlled substance. (Appellant's App. at 127.) In addition, it sentenced him to two years executed for possession of marijuana, and the court ordered that sentence to be served concurrent with the sentence for dealing.

DISCUSSION AND DECISION

Creekmore claims the trial court erred when it denied his motions to suppress the evidence collected pursuant to the search warrant. We review the trial court's ruling on a motion to suppress in a manner similar to other sufficiency questions. Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001). We affirm if substantial evidence of probative value supports the trial court's decision. Id. We may neither reweigh the evidence nor assess the credibility of the witnesses, and we must consider the evidence in the light most favorable to the trial court's decision. Id.

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. U.S. Const. Amend. IV. The Fourteenth Amendment extended to state governments the Fourth Amendment's requirements for constitutionally valid searches and seizures. Figert v. State, 686 N.E.2d 827, 830 (Ind.1997). When a defendant challenges whether evidence was gathered properly under the Constitution, the State bears the burden of proving the evidence was admissible. See, e.g., Edwards, 759 N.E.2d at 630

(discussing admissibility under the Fourth Amendment of evidence gathered by warrantless search); Carter v. State, 730 N.E.2d 155, 157 (Ind.2000) (discussing admissibility of confession under the Fifth Amendment).

1. Probable Cause

The Fourth Amendment demands that no search warrant be issued unless it is supported by probable cause. U.S. Const. Amend. IV ("no warrant shall issue, but upon probable cause"). Probable cause is "a fluid concept incapable of precise definition ... [that] is to be decided based on the facts of each case." Figert, 686 N.E.2d at 830. "Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime." Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994).

When deciding whether to issue a search warrant, the issuing judge's task is "simply to make 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 will be found in a particular place." Figert, 686 N.E.2d at 830 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),reh'g denied463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983)).

If a defendant questions the validity of the search warrant, the trial court's duty is to determine whether a "substantial basis" existed to support the judge's finding of probable cause. Id. "`Substantial basis requires the reviewing court, with significant deference to the [judge]'s determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination' of probable cause." Id. (quoting Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)). When conducting its review, the trial court may consider "only the evidence presented to the issuing [judge] and not post hoc justifications for the search." Id. We review the issuance of a search warrant under the same standard the trial court employs. Id.

Creekmore claims there was no probable cause supporting the issuance of a warrant for his house because the only evidence implicating Creekmore's residence was Garresh's hearsay statement and "Garresh's credibility as an informant was never established." (Appellant's Br. at 9.) The State claims Garresh's credibility was established by the fact that Garresh implicated himself in dealing in marijuana and psilocybin mushrooms, rather than just possessing those items.

Uncorroborated hearsay from an informant whose credibility is unknown cannot provide probable cause to issue a search warrant. Iddings v. State, 772 N.E.2d 1006, 1013 (Ind.Ct.App.2002), trans. denied 783 N.E.2d 700 (Ind.2002). Accordingly, Ind.Code § 35-33-5-2 requires:

(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 the totality of the circumstances corroborates the hearsay.

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 he's 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[.]

(Defendant's Ex. 1, p. 6.) In addition, Detective Sanders informed the court Garresh said his dealer's 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 defendant's house, the informant also implicated himself in the manufacture of methamphetamine with the defendant at the defendant's house. Iddings, 772 N.E.2d at 1014. Similarly, here, Garresh's 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...