Foster v. State
| Decision Date | 22 September 2016 |
| Docket Number | Court of Appeals Case No. 82A05-1511-CR-2010 |
| Parties | Morgan Christopher Foster, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Anderson, Indiana
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Vanderburgh Superior Court
The Honorable Robert J. Pigman, Judge
[1] Following a jury trial, Morgan Foster was convicted of conspiracy to commit dealing in methamphetamine as a Level 2 felony and was sentenced to twenty-two and one-half years in the Indiana Department of Correction. Foster appeals his conviction and sentence, raising five issues for our review, which we restate as (1) whether the trial court abused its discretion in admitting evidence, (2) whether the evidence is sufficient to support his conviction, (3) whether his conviction violates the prohibition against double jeopardy, (4) whether his sentence violates Indiana's Proportionality Clause, and (5) whether his sentence is inappropriate in light of the nature of the offense and his character. Concluding the trial court did not abuse its discretion in admitting evidence, the evidence is sufficient to support Foster's conviction, his conviction does not violate the prohibition against double jeopardy, and his sentence is neither unconstitutional nor inappropriate, we affirm.
[2] In early April 2015, Foster was attempting to locate pseudoephedrine pills to manufacture methamphetamine. A confidential informant and Foster agreed to an exchange. The confidential informant notified Detective Todd Seibert of the Evansville Police Department of the agreement with Foster. Detective Seibert then set up a controlled buy between the informant and Foster.
[3] On April 7, 2015, Detective Seibert provided the informant with 100, 120 milligram pseudoephedrine pills. Around 4:00 p.m., the informant arrived at Foster's home. The informant told Foster she wanted three grams of methamphetamine in exchange for the pills. Foster did not have any methamphetamine at the time, but stated he would "be started by 7:00 [and] be done no later than 11:00." Transcript at 377. Foster provided the informant with his personal property as collateral and explained he would call the informant "[n]o later than 11:00." Id. at 380. During the conversation, Demareo Thurston called Foster and Foster demanded Thurston come to the home, claiming he was "ready to go."1 Id. at 377. The informant gave Foster all 100 pills and left. Detectives Seibert, Patrick McDonald, and Brock Hensley then conducted surveillance on the home.
[4] Later that evening, Thurston arrived at Foster's home with camping fuel. Foster then requested Thurston purchase sodium hydroxide (lye) and a one-gallon plastic bottle. Thurston obliged, and returned with sodium hydroxide, a one-gallon plastic container, and coffee filters. In exchange for his time, Thurston was hoping to receive at least one gram of methamphetamine.
[5] At some point, Detective Seibert walked around the home and noticed a strong chemical odor emanating from the back of the home. Through his training and experience, Detective Seibert believed the odor was indicative of themanufacturing of methamphetamine. Unbeknownst to Detective Seibert, other police officers received a report of a chemical odor emanating from the home around the same time. When those police officers arrived, Detective Hensley called the officers and requested they attempt to contact Foster and Thurston. The police officers also noticed a strong chemical odor coming from the home. After no one answered the door, the police officers left. Shortly thereafter, Thurston and Foster also left. Police officers were able to locate the pair and Detective Seibert spoke with Foster. Detective Seibert detected a strong chemical odor generally associated with the manufacturing of methamphetamine coming from Foster.
[6] Detective Seibert then signed an affidavit for a search warrant of Foster's home, which stated in part, "[O]fficers responded to [Foster's] residence due to an anonymous complaint that a strong chemical odor was coming from the residence." Defendant's Exhibit A. Despite attesting that he "speaks from personal knowledge and observation," id., Detective Seibert did not have personal knowledge that police officers had responded due to an anonymous complaint. The trial court authorized the search. During the search, police officers observed an active "one pot" manufacturing lab, the contents of which were still undergoing a chemical reaction. Tr. at 207. In addition, they observed the following items typically used in the manufacture, use, and dealing of methamphetamine: coffee filters, lye, a coffee bean grinder, digital scales, corner cut baggies, a used cold pack, a straw used to inhale or smoke narcotics, and camping fuel. No pseudoephedrine pills were discovered duringthe search of the home. On April 25, 2015, the State charged Foster with dealing in methamphetamine as a Level 2 felony ("Count I"), conspiracy to commit dealing in methamphetamine as a Level 2 felony ("Count II"), and attempted dealing in methamphetamine as a Level 3 felony ("Count III").
[7] In September 2015, Foster filed a motion for a Franks hearing and/or a motion to suppress, alleging Detective Seibert recklessly included a false statement in his application for the search warrant, the false statement was necessary to the finding of probable cause, and therefore all evidence seized during the search was fruit of the poisonous tree. At a hearing on the matter, Detective Seibert admitted he did not have personal knowledge that police officers had received an anonymous tip regarding an odor coming from the house, claiming the statement was innocently included due to a "a typo from a cut and paste from when the warrant was typed." Id. at 84. He further claimed he only signed the affidavit, explaining an individual in the prosecutor's office typed the affidavit pursuant to Detective Hensley's account of the facts. The trial court ultimately struck the false statement from the affidavit and concluded the remaining information established probable cause for the issuance of the warrant and therefore the evidence seized pursuant to the warrant was lawful.
[8] At trial, the State admitted evidence seized during the search of Foster's residence. Foster objected, alleging the admission of evidence violated the Fourth Amendment. The trial court overruled his objection, and the jury returned guilty verdicts on all three counts. At sentencing, the trial court entered judgment of conviction only on Count II, conspiracy to commit dealingin methamphetamine, due to double jeopardy concerns and sentenced Foster to twenty-two and one-half years in the Department of Correction. This appeal ensued.
[9] At the outset, we note Foster did not seek interlocutory review of the trial court's denial of his pretrial motion to suppress/Franks motion and we therefore consider his appeal as a request for this court to review the trial court's decision to admit evidence at trial. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We review a trial court's admission of evidence for an abuse of discretion. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. "An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Id. We neither weigh the evidence nor resolve questions of credibility, "but consider the evidence which supports the decision of the trier of fact in the case of contested evidence and any uncontested evidence presented by the appellant." Davies v. State, 730 N.E.2d 726, 732 (Ind. Ct. App. 2000), trans. denied, cert. denied, 532 U.S. 945 (2001).
[10] Foster argues the affidavit supporting the issuance of the search warrant contained a false statement that misled the issuing court and therefore the search was unconstitutional under the Fourth Amendment. The Fourth Amendment requires a hearing be held in the event a defendant "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [was] necessary to the finding of probable cause . . . ." Franks v. Delaware, 438 U.S. 154,155-56 (1978). Stated differently, only when the defendant satisfies this burden and the remaining information in the affidavit is insufficient to establish probable cause is the search warrant deemed void. Id. at 156.
[11] 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." The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. It is clear that a substantial 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. A "reviewing court" for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. In this review, we consider only the evidence...
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