Hirshey v. State, 01A02-0511-CR-1038.
| Decision Date | 23 August 2006 |
| Docket Number | No. 01A02-0511-CR-1038.,01A02-0511-CR-1038. |
| Citation | 852 N.E.2d 1008 |
| Parties | Brad HIRSHEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Donald C. Swanson, Jr., Fort Wayne, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Special Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Brad Hirshey challenges the trial court's ruling denying his motion to suppress and his convictions for dealing in methamphetamine, a class A felony; possession of a sawed-off shotgun, a class D felony; eight counts of possession of a switchblade knife, all class B misdemeanors; possession of marijuana, a class A misdemeanor; and possession of paraphernalia, a class A misdemeanor. We affirm in part, reverse in part, and remand.
We restate the issues as follows:
I. Whether the search warrant for Hirshey's trailer was supported by probable cause;
II. Whether the officers relied on the warrant in good faith;
III. Whether Hirshey validly consented to the search of the garage;
IV. Whether the search of the garage exceeded the scope of Hirshey's consent;
V. Whether evidence should be suppressed based on the fact that Hirshey did not receive Miranda warnings; and
VI. Whether the evidence was sufficient to prove that Hirshey possessed methamphetamine with intent to deal.
Holly Godsey was arrested for dealing methamphetamine. Indiana State Police Detective Dan Mawhorr interviewed Godsey and asked her "if she wanted to try to do something to help herself with the charge." Tr. at 48. Godsey indicated that she purchased drugs from Hirshey on a regular basis and agreed to try to make a controlled purchase from him. However, Godsey was unable to contact Hirshey. Detective Mawhorr then sought a search warrant for Hirshey's trailer based on Godsey's statements. Detective Mawhorr had no previous connection with Godsey, and the probable cause affidavit provided the court with no information concerning her credibility. He also did not corroborate any portion of her statement.
A warrant was issued to search Hirshey's trailer for methamphetamine. Detective Mawhorr and several other officers took the warrant to Hirshey's trailer, and Hirshey let them in after viewing the warrant. Hirshey was kept outside throughout the search. Eight switchblade knives were found in a dresser drawer. A search of the bathroom wastebasket revealed charred aluminum foil and seven plastic bags with the corners cut off. In the closet, police found a bong and a butane torch. A plastic bag of marijuana was found inside a fanny pack. In a nightstand, the police found a propane torch, two glass smoking pipes, an aluminum teaspoon, a digital pocket balance, and some cut corners of plastic bags.
After finding these items, Detective Mawhorr placed Hirshey under arrest. He did not advise Hirshey of his Miranda rights. He asked Hirshey for consent to search a detached garage located about 300 yards from the trailer. Hirshey initially was unwilling to allow the search to proceed without a warrant. After Detective Mawhorr told him that he could apply for a warrant, and his parents urged him to consent, Hirshey signed a consent form.
Officer Lori Petro, who was participating in the search, asked Hirshey if there were any weapons inside the garage. Hirshey told her that she might find guns in the cabinet. Inside the garage, police found a nine-millimeter semi-automatic pistol and a sawed-off shotgun in a cabinet. A brown leather pouch was found inside a wood-burning stove. The pouch contained eleven plastic bags of various quantities of methamphetamine. The combined weight of the methamphetamine was 9.56 grams.
Hirshey was charged with dealing in methamphetamine, a class A felony; possession of a sawed-off shotgun, a class D felony; eight counts of possession of a switchblade knife, all class B misdemeanors; possession of marijuana, a class A misdemeanor; possession of paraphernalia, a class A misdemeanor; and maintaining a common nuisance, a class D felony. On October 1, 2004, Hirshey filed a motion to suppress the evidence seized during the search of the trailer and garage. On November 1, 2004, a hearing was held on Hirshey's motion. On November 24, 2004, the court entered an order granting Hirshey's motion only as to his statement about the location of the guns. On November 29, 2004, the trial court certified the order for interlocutory appeal. On February 2, 2005, this Court declined to accept jurisdiction.
The maintaining a common nuisance charge was dismissed, and a jury trial was held in June 2005 on the remaining charges. The trial court issued a standing order indicating that there would be a continuing objection to all evidence obtained pursuant to the search warrant and the consent search. The jury found Hirshey guilty on all counts.
The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require that warrants only be issued "upon probable cause, supported by oath or affirmation." Evidence that is seized in violation of these provisions must be suppressed. Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Riddle v. State, 257 Ind. 501, 275 N.E.2d 788, 790 (1971). Hirshey asserts that the warrant lacked probable cause and that the trial court erred in denying his motion to suppress the evidence obtained from the resulting search of his trailer.
Hirshey originally challenged the admission of the evidence through a motion to suppress. However, he is appealing from a completed trial and challenges the admission of the evidence at trial. Therefore, the issue is "appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. Our standard of review on the admissibility of evidence "is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection." Id. Id. We affirm the trial court's ruling if it is supported by substantial evidence of probative value. Creekmore v. State, 800 N.E.2d 230, 233 (Ind.Ct.App.2003).
Indiana Code Section 35-33-5-2(b) lays out special requirements for probable cause affidavits that are based on hearsay:
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.
Officer Mawhorr's affidavit was based on hearsay statements by Godsey. However, he did not establish Godsey's credibility or corroborate her statements.
The State argues that probable cause exists because Godsey's statements were against her penal interest. Our supreme court has held that "declarations 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 v. State, 678 N.E.2d 95, 100 (Ind.1997). In cases where we have found that the statements were against penal interest, the declarants have potentially exposed themselves to greater criminal liability. Creekmore, 800 N.E.2d 230; Leicht v. State, 798 N.E.2d 204 (Ind.Ct.App.2003), trans. denied. In Creekmore and Leicht, the declarants were found in possession of drugs and made statements implicating themselves in dealing. However, in this case, Godsey had already been arrested for dealing methamphetamine as a class A felony, and her statements did not tend to expose her to any greater criminal liability. On the contrary, Godsey offered information about Hirshey to receive leniency. In such cases, our court has held that the statements were not against penal interest. Newby v. State, 701 N.E.2d 593, 600 (Ind.Ct.App.1998) ().1 Godsey's statements were not against her penal interest, and because there is no other indication that her statements were reliable, the warrant lacked probable cause.
The State argues that even if the warrant lacked probable cause, the officers relied on it in good faith.
Generally a search conducted pursuant to an invalid warrant results in the suppression of any items seized. However, an exception has been carved out under both federal and Indiana law in which a search will be deemed valid if the State can show that the officer conducting the search relied in good faith upon a properly issued, but subsequently invalidated warrant. [United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Ind.Code § 35-37-4-5]. The good faith exception will not apply under the following circumstances: (1) the warrant is based on false information knowingly or recklessly supplied; (2) the warrant is facially deficient; (3) the issuing magistrate is not detached and neutral; or (4) the affidavit or sworn testimony upon which probable cause rests is so lacking in indicia of probable cause as to render an official belief in the existence of the warrant unreasonable. [Leon, 468 U.S. at 923, 104 S.Ct. 3405; Doss v. State, 649 N.E.2d 1045, 1047 (Ind.Ct.App.1995)].
Lloyd v. State, 677 N.E.2d 71, 74-75 (Ind. Ct.App.1997) (footnote omitted), trans. denied. Because it is clear that hearsay statements, without any indicia of reliability, cannot establish probable cause, we believe that this...
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