Figert v. State

• Decision Date: 23 October 1997
• Docket Number: Nos. 50S03-9709-CR-473,s. 50S03-9709-CR-473
• Citation: 686 N.E.2d 827
• Parties: Teresa D. FIGERT and Byron Green, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 827

686 N.E.2d 827

Teresa D. FIGERT and Byron Green, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

Nos. 50S03-9709-CR-473.

Supreme Court of Indiana.

Oct. 23, 1997.

E. Nelson Chipman, Jr., Richard A. Eaton, Plymouth, for Appellants.

Jeffrey A. Modisett, Attorney General, Katherine L. Modesitt, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

In this interlocutory appeal, defendants Teresa D. Figert and Byron Green challenge the trial court's denial of their motions to suppress. With one judge dissenting, the Court of Appeals affirmed. Figert v. State, 683 N.E.2d 1314 (Ind.Ct.App.1997). We granted transfer to address application of the "good faith" exception to the exclusionary rule. We reverse the trial court.

Factual and Procedural History

As part of an ongoing undercover investigation, a police officer made several controlled purchases of crack cocaine from different men residing in, or at least conducting drug sales from, two of three manufactured homes in a place in Marshall County known as "the Farm." The homes were located in a rural area in close proximity to each other in a "U" shape. Figert and Green lived in the third home. The probable cause affidavit did not allege that any sales were observed from the third home or that Figert or Green, or anyone meeting their description, sold drugs, or that the third home was a base of operations for drug trafficking. Besides mere proximity to the general area of the drug sales, the only fact the affidavit detailed as to the third home or Figert and Green was that "[t]here are currently a large number of unidentified individuals living in and frequenting the three trailers." The affidavit also made clear that in one of the controlled buys the seller insisted on consummating the transaction outdoors and away from the homes to conceal it from his parents who lived there. The police officer who made the controlled drug purchases nonetheless concluded in the affidavit that he had "probable cause to believe that additional crack cocaine, paraphernalia, and evidence of crack cocaine dealing will be found within the three trailers...." (emphasis added). Based on the information contained in the affidavit, the trial court issued a warrant authorizing a search of "the three residences at 20831 Upas Road" for, among other things, cocaine and "any and all property related to narcotics trafficking." Because some of the controlled purchases were consummated in automobiles driven by the suspects, the warrant also authorized a search of "the vehicles located within the curtilage" of the homes.

Several police officers, including the affiant, executed the warrant during the early morning hours of May 25, 1996. A search of Figert's and Green's home and Green's car uncovered incriminating evidence that led to their prosecution for drug-related offenses. Figert and Green filed separate motions to suppress. With respect to the home search, they both contended that the warrant was issued without probable cause because the supporting affidavit provided no basis to conclude that cocaine or related paraphernalia would be found in their home. After denying their motions to suppress, the trial court certified the following questions for interlocutory appeal: (1) "Whether the finding of probable cause for the issuance of a search warrant for all dwellings on the premises ... was proper when the information used to formulate probable cause and the issuance of a search warrant was based on the activities of two residences that did not involve the [defendants'] residence"; and (2) "Whether the Court's finding that 'the totality of the circumstances makes the entire premises suspect' and thus '[a] substantial basis existed for a finding of probable cause to search all dwellings located at the farm' was correct." The Court of Appeals held that there was no probable cause for the issuance of the warrant as to Figert's and Green's home, but found that the "good faith" exception applied. On that basis, the trial court was affirmed. Judge Staton joined the majority on the first issue but dissented as to the good faith exception. Because the certified questions do not address the search of the car, the Court of Appeals did not deal with that issue. Nor do we. ¹

Standard of Review

The parties appear to agree that the warrant was facially valid because it described with sufficient particularity the places to be searched and the things to be seized. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); Phillips v. State, 514 N.E.2d 1073, 1075 (Ind.1987). The problem both certified questions present is whether the information pleaded in the affidavit supported the finding of probable cause. Probable cause has long been described as a fluid concept incapable of precise definition. It is to be decided based on the facts of each case. See, e.g., Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In deciding whether to issue a search warrant, "[t]he task of the issuing magistrate 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." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. Id. at 238-39, 103 S.Ct. at 2332. "[S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination" of probable cause. Houser v. State, 678 N.E.2d 95, 99 (Ind.1997). "Reviewing court" for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. at 98. In this review, we consider only the evidence presented to the issuing magistrate and not post hac justifications for the search. Seltzer v. State, 489 N.E.2d 939, 941 (Ind.1986).

I. Probable Cause to Search the Defendants' Home

In addressing the probable cause question, the Court of Appeals correctly stated and applied several principles of search and seizure law. As a general proposition, a search of multiple units at a single address must be supported by probable cause to search each unit and is no different from a search of two or more separate houses. ² Accordingly, there must be a showing of probable cause to search Figert's and Green's home, not just the other homes. We agree with the Court of Appeals that the determination that probable cause existed for searching the third home lacked a substantial basis. "[T]he reasonable inferences drawn from the totality of the evidence," Houser, 678 N.E.2d at 99, at most show that drugs were being sold from the first two homes by persons who lived in those homes or used them as a base of operations for drug trafficking. "Unidentified individuals," who may or may not have been involved in the drug sales, were "frequenting the three trailers." This all occurred in the general vicinity of the three homes, but does not support the conclusion that the third home or Figert and Green were necessarily involved. In short, the probable cause affidavit does not allege facts that would establish a fair probability that evidence of crime would be found in Figert's and Green's home. Other cases involving a lack of nexus between a controlled drug buy and the place to be searched have held the affidavit insufficient to establish probable cause. Cf. Flaherty v. State, 443 N.E.2d 340 (Ind.Ct.App.1982) (search of defendant's apartment lacked probable cause where police officer saw informant enter the same apartment building to buy drugs but not the defendant's apartment in particular).

As the Court of Appeals noted, an exception to the requirement of probable cause to search each unit at one address has been recognized where the units are under the common dominion or control of the target of the investigation or, as the State puts it, are used as a "collective dwelling." In that situation, some decisions have held that probable cause to search one unit or part of the premises supports a search of the rest. ³ However, there is an insufficient showing here of collective occupation or control. The probable cause affidavit alleged that different persons lived in the first two homes and that the officer bought drugs from both occupants on separate occasions. The affidavit did not allege any connection between any of the controlled drug buys and the third home. Significantly, an effort was made to conceal the illegal activities from some of the occupants of the first two homes. Thus, the facts cut against the view that the Farm was a collective drug-dealing operation and indicate that some of the occupants may not have been aware of illegal activity. If the officer who sought the warrant had information tending to show involvement by the third home in the drug sales, that information should have been offered when the warrant was issued. United States v. Simpson, 944 F.Supp. 1396, 1409 (S.D.Ind.1996) ("single unit" exception could not sustain warrant where officers failed to present evidence to the issuing magistrate showing that multiple units were being used as single unit). In short, as all the judges of the Court of Appeals held, probable cause was not established by the affidavit.

As a final matter, the same search warrant was used in this case to search three separate residences occupied by different persons. Courts in other jurisdictions have viewed the use of a single search warrant for this purpose with disfavor, see, e.g., Williams v. State, 95 Okla.Crim. 131, 240 P.2d 1132, 1137 (1952), as have some of our decisions. See, e.g., Hess v. State,...