Doss v. State, 45A03-9308-CR-282
| Decision Date | 24 April 1995 |
| Docket Number | No. 45A03-9308-CR-282,45A03-9308-CR-282 |
| Parties | Reginald DOSS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-defendant Reginald Doss appeals from his conviction for receiving stolen property, a Class D felony, and maintaining a common nuisance, a Class D felony. The facts relevant to this appeal are summarized below.
On September 16, 1992, Officer Ronald Kottka of the Griffith, Indiana Police Department received a tip from a confidential informant (CI) that Doss had in his possession at his home certain stolen items, weapons, and drugs. The CI told police that he had personally seen the items at Doss's home and he gave a description of them. Based upon his conversation with the CI, Officer Kottka drafted an affidavit to support a search warrant of Doss's home. The affidavit read, in pertinent part:
"Detective Ronald Kottka swears or affirms that he believes and has good cause to believe ...; after speaking to a confidential informant whom I believe to be truthful and credible, spoke the following facts of his own personal knowledge. That a subject named Roger Klemoff committed a burglary at Griffith Jewelers, 235 N. Broad St., Griffith. Removed in the burglary was numerous class rings. The C.I. stated the class rings were brought to a house located 50' south of 46th Ave. on the west side of Maryland, a grayish one story wood shingled house. The entrance to said house being on the south side. Located in the rear is a detached garage containing a motor vehicle with Illinois plate 'EX 3249'. The house is the second house on the west side, south of 46th Ave. on Maryland in Gary, Lake County, IN. He further stated a house was burglarized at 1548 S. Broad St., Griffith. Taken in the burglary was a RCA 27
Officer Kottka met with Judge Samuel Cappas on September 18, 1992, to obtain a search warrant. No other information beyond what was included in the above affidavit was given to Judge Cappas to assist him in making a determination of probable cause. Judge Cappas issued the warrant which was executed that same day. The subsequent police search of Doss's home uncovered the following items: a television, a video cassette recorder (VCR), several class rings and substances containing traces of cocaine, marijuana, and other controlled substances.
Based on this evidence, Doss was charged with receiving stolen property and maintaining a common nuisance. Doss requested suppression of the above evidence which the trial court denied. Thereafter, he received a jury trial and was convicted on these charges. The trial court sentenced Doss to 5 years' imprisonment. He appeals his conviction.
On appeal, Doss raises one issue which we restate as: whether the trial court erred in failing to grant his motion to suppress the items seized from his residence.
The trial court found the search warrant to be technically defective. Nonetheless, the trial court denied the motion to suppress finding that Officer Kottka conducted the search relying in good faith on the decision of Judge Cappas to grant the search warrant. Doss contends the trial court erred in doing so. Specifically, he argues the trial court improperly denied the motion because the affidavit was so lacking in indicia of probable cause as to make Officer Kottka's reliance upon it unreasonable. See Leon v. United States (1984), 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677, 699. By contrast, the State claims that because there is no evidence that Officer Kottka misled the judge or gave false information in the affidavit, the trial court acted properly in extending the good faith exception to Officer Kottka and consequently denying Doss's motion to suppress.
The Fourth Amendment to the United States Constitution, Article 1, § 11 of the Indiana Constitution, and Indiana statutory law, see IND.CODE § 35-33-5-1 (1988 Ed.), all provide that a warrant shall not issue unless there is probable cause supported by oath or affirmation. However, evidence seized pursuant to a search warrant later invalidated is admissible if the police officers executing the warrant acted in "good faith." IND.CODE § 35-37-4-5 (1988 Ed.).
"Good faith" is defined by IND.CODE § 35-37-4-5 as existing where a search warrant:
"(1) [is ] properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid;"
(Emphasis added.) The good faith exception to the exclusionary rule is inapplicable where: the warrant is based upon false information knowingly or recklessly supplied by an affiant, see Bradley v. State (1993) Ind., 609 N.E.2d 420, 424 (); the warrant is facially deficient; and the issuing magistrate or judge is not detached and neutral or has wholly abandoned his judicial role, see Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699. Additionally, "good faith" does not exist where the affidavit upon which probable cause rests is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id.
The affidavit was supported by information given to Officer Kottka by a confidential informant and was thus hearsay. IND.CODE § 35-33-5-2(a) (1992 Supp.) provides that an affidavit for probable cause may be based on hearsay if it:
"(1) contain(s) 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(s) information that establishes that the totality of the circumstances corroborates the hearsay.
See Everroad v. State (1992), Ind., 590 N.E.2d 567.
In Everroad, the police officer affiant stated in the probable cause affidavit that he had good cause to believe the defendant had in his possession a stolen television set. He also stated that such information was received from a credible source, specifically a subject both present during the theft of the television and also during its sale to the defendant. The affidavit indicated the date on which the information was given to the affiant. It also disclosed that information discovered the day before confirmed that the defendant still had the items in his possession. The trial court denied a motion to suppress the items recovered from defendant's premises. Id. at 569.
On appeal, our supreme court found there to be no probable cause and that the affidavit was, in fact, so lacking in indicia of probable cause as to render the police officer's reliance upon it unreasonable. Id. at 571. Thus, concluded the Everroad court, the good faith exception to...
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