Frasier v. State

• Decision Date: 26 August 2003
• Docket Number: No. 07A01-0207-CR-239.,07A01-0207-CR-239.
• Parties: Larry R. FRASIER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

794 N.E.2d 449

Larry R. FRASIER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 07A01-0207-CR-239.

Court of Appeals of Indiana.

August 26, 2003.

David C. Grupenhoff, Thomas M. Barr & Associates, Nashville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Larry R. Frasier, Jr., brings this discretionary interlocutory appeal challenging the trial court's decision to deny his motion to suppress certain evidence. Frasier presents four issues for our review, which we restate as the following three:

I. Whether the search warrant issued by the trial court was supported by probable cause;

II. Whether, if the search warrant was improperly issued, the evidence obtained as a result of the issuance of the warrant is nevertheless admissible under the "good faith" exception; and

III. Whether images discovered during a search of Frasier's personal computer may properly be entered into evidence.

We affirm.

The record reveals that on November 1, 2000, Brown County Sheriff's Department Detective Scott Southerland prepared an affidavit seeking a search warrant authorizing a search of Frasier's residence. The affidavit being essential to the resolution of this case, we set forth the contents thereof:

"I, Scott Southerland, swear or affirm under penalties for perjury that the following is true.

I am a law enforcement officer with the Brown County Sheriff's Department. In that capacity I have received criminal information concerning Larry R. Frasier Jr. who resides at 6390 Oriole Drive, Nineveh, Indiana 46164.

Approximately ninety days ago, I talked with Deputy Bernie McGaha who told me he had received information from a concerned citizen, a person who wished to remain anonymous. (CS# 1) This person wished to remain anonymous because of fear of retaliation. CS# 1 told Deputy McGaha that he/she had been inside the Frasier residence. CS# 1 said he/she had seen processed marijuana and marijuana plants growing in the garage. CS# 1 further said that he/she has seen Frasier smoking marijuana in his house and in his yard, and that he/she had seen Frasier smoke marijuana with his daughter and/or son. CS# 1 also told Deputy McGaha that he/she had seen Frasier's daughter roll marijuana cigarettes for her father, and he/she thought it was likely that Frasier has molested his daughter. Frasier's daughter, [M.F.], is now 19 years old. CS# 1 said that he/she was shown pornographic pictures that Frasier had on his computer. CS# 1 believed these pornographic pictures were of children. CS# 1 told Deputy McGaha that he/she was shown lights used to grown marijuana plants indoors by Larry Frasier.

At about the same time, I talked with Deputy Randy Taggart who related a report taken from CS# 1 where CS# 1 reported in essence the same thing as CS# 1 reported to Deputy McGaha. CS# 1 did tell Deputy Taggart that he/she has seen Larry Frasier and his daughter [M.F.] come outside the house when they were apparently wearing only towels. CS# 1 told Deputy Taggart he/she had heard Larry Frasier make a comment about a neighbor girl, stating that she would be `an easy target.'

CS# 1 later told Deputy McGaha that he/she believed Frasier was trying to `straighten up his act' and didn't want to get involved any further. At the time of CS# 1's statements to Deputy McGaha and Deputy Taggart it is believed that CS# 1 and Frasier were having an argument. CS# 1 and Frasier were friends prior to this and Deputy McGaha believes they are on friendly terms again.

On October 31, 2000 I talked with Deputy John Collins who told me of a report he received a couple months ago from a concerned citizen, a person who wished to remain anonymous. (CS# 2) This person wished to remain anonymous because of fear of retaliation. CS# 2 told Deputy Collins that he/she had visited the Frasier residence about two months ago to pick up his/her children, who were visiting with the Frasier children. CS# 2 told Deputy Collins that while at the residence he/she saw a `bale of marijuana' in the garage. CS# 2 could not remember for sure how long since this happened but it had been several months prior to reporting it.

On October 31, 2000, I received information from a person who wishes to remain anonymous. (CS# 3) This person said that he/she has been inside the Frasier residence within the past 72 hours and saw marijuana. CS# 3 said that Frasier sold marijuana and was growing marijuana in the garage. I found CS# 3 to be credible. CS# 3 expressed fear of retaliation and believes Frasier to be a violent person capable of causing physical harm. CS# 3 believes a person named Tony Cardwell is supplying Frasier with marijuana for resale.

On October 31, 2000 I interviewed a person who lives close to Larry Frasier. (CS# 4) This person wishes to remain anonymous because they live nearby and are afraid of retaliation by Frasier. This person stated he/she had been told that Frasier dealt in drugs and was growing marijuana in his garage. CS# 4 told me the name of the person who told him/her this and I found their source of information to be CS# 1 from above. CS# 4 believes this is probably true because CS# 4 has in the past seen a lot of traffic in and out at the residence. CS# 4 said he/she also believed it to be true because a few weeks ago Frasier obscured the windows on the garage so nobody can see inside. CS# 4 said it looked like Frasier had painted the glass windows. CS# 4 said that about 1 1/2 weeks ago they saw a person they knew as Tony Cardwell at the Frasier, [sic] outside the house, talking with Frasier. CS# 4 said Frasier had a gun and CS# 4 believed he/she witnessed a drug deal but couldn't articulate why he/she though [sic] that except that Frasier had a gun. CS# 4 also told me that his/her spouse was invited into the Frasier's residence by Larry Frasier. Frasier tried to show the spouse pornographic pictures on his computer by [sic] the spouse declined and said he/she didn't want to see them.

On November 1, 2000 I drove past the Frasier residence. It appears to me that the windows on the overhead garage door are covered or painted black. I saw a stack of black plastic pots behind the garage. I have seen this type of pots [sic] many times in the past, during other marijuana investigations, with marijuana plants in them. I viewed the residence with a thermal imager, a device that shows temperature differences between objects. The overhead door to the garage showed signs of higher temperature. What I saw is consistent with the heat pattern that would be present with an indoor marijuana grow where the lights used for the plants produce heat. I have been trained and certified in the use of a thermal imager and it's [sic] application during investigations of indoor marijuana grows.

I checked for criminal history for Larry Frasier through NCIC and found that Frasier was arrested by the Indiana State Police of the Evansville Post for smuggling marijuana. This arrest was in 1978 and shows no disposition.

In my training and experience people who deal in illegal drugs keep records of transactions to show who owes money for drugs bought on credit. The records may be written or kept on a computer. It is also my experience that people who grow marijuana frequently take photographs or make videotape recordings of their marijuana plants. I have also learned in my training and experience that people who deal illegal drugs frequently keep the drugs in a safe, lock-box, or locked room in their residence to keep them secure from visitors and/or their children.

Based upon the above-described information, which I believe to be true, I believe evidence of possession of marijuana, dealing in marijuana, and/or child pornography is located in the residence of Larry Frasier. The residence is located at 6390 Oriole Drive, Brown County, Indiana. From the road the residence appears to be a one-story frame structure with attached garage.

I am requesting a Search Warrant be issued for the above-described residence, outbuildings, and premises. I am asking for authorization to search the residence as well as safes, lock boxes, locked rooms, computers, computer hard drives, computer disks or any other device used to store digital information, photographs, videocassette tapes, and photographic negatives.

I am asking for authorization to seize any evidence related to possession of marijuana, dealing marijuana, and/or child pornography, including but not limited to: marijuana plants, processed marijuana, marijuana packaging materials and equipment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana, and pornographic images depicting persons believed to be children." Appendix at 25-27.

Based upon this affidavit, Brown County Circuit Court Judge Judith A. Stewart issued a search warrant which directed the police to enter Frasier's home and garage and to search for and seize the following:

"Marijuana plants, processed marijuana, marijuana packaging materials and equipment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana...."¹ Id. at 28.

On November 1, 2001, Detective Southerland and other officers executed the warrant. When Southerland entered the Frasier residence, he went to the bedroom where a personal computer was located. Southerland first noticed an icon labeled "Smoke" located on the computer's "desktop."² Upon opening this file to view it, Southerland discovered that it included a letter to a company which sold a product purporting to allow one to pass a urine drug screen. Southerland then began opening documents listed in the "Documents" sub-menu of the computer's "Start" menu. This sub-menu lists recently opened...