Hoop v. State

• Decision Date: 14 July 2009
• Docket Number: No. 49A02-0807-CR-666.,49A02-0807-CR-666.
• Parties: Jonathon HOOP, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

909 N.E.2d 463

Jonathon HOOP, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0807-CR-666.

Court of Appeals of Indiana.

July 14, 2009.

Timothy J. Burns, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Jonathon Hoop brings this interlocutory appeal from the denial of his motion to suppress. The challenged evidence was seized during the execution of a search warrant, which was issued after an officer had a drug-detecting dog sniff the front door of Hoop's residence. We conclude that under Article 1, Section 11 of the Indiana Constitution, an officer needs reasonable suspicion to conduct a dog sniff of a private residence. Even if that requirement was not met in this case, the officers relied on the warrant in good faith. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 26, 2007, Sergeant Jason Bradbury swore out an affidavit to obtain a search warrant for Hoop's residence. The affidavit stated, in relevant part:

A confidential credible and reliable informant (C.I.) personally told your affiant that there was a marijuana growing operation at 739 Churchman Ave. Beech Grove, Marion County, Indiana. The C.I. stated that he/she was inside the residence in early May 2007 and smelled what he/she knew to be marijuana that was being cultivated. The C.I. also observed several items of paraphernalia that [are] used to ingest marijuana. The C.I. stated that the residence was under the control of a white male, Jonathon Hoop [birth date deleted].

A check of public utility records showed that the residence had power in the name of Jonathon Hoop. The power usage also showed that since Jonathon Hoop moved into the residence that the power used was higher than the previous occupant. A drivers license check was [run] on Jonathon Hoop and it showed that he had an address of 739 Churchman Ave. Beech Grove, Marion County, Indiana.

Based on the above information a "free air" sniff was conducted on 739 Churchman Ave. Beech Grove, Marion County, Indiana. The sniff was conducted July 26th, 2007. Det. Jeff Krider and his K-9 partner "Sonny" sniffed the front door of the residence. "Sonny" had a distinct behavior change while sniffing the front door of 739 Churchman Ave. Beech Grove, Marion County, Indiana. This behavior change is consistent with the K-9's detection of the odor of a controlled substance.

Det. Krider has been employed with the Indianapolis Metropolitan Police Department for eighteen (18) years and is currently assigned to the Metropolitan Drug Task Force. Det. Krider and "Sonny" have received specialized training as a narcotics detection team in the odors of controlled substances. Det. Krider and Sonny are certified as a team annually with the last certification in March of 2007 with 100% accuracy. "Sonny["] is trained in the detection of marijuana, cocaine, heroin and methamphetamine.

The C.I. is credible and reliable due to the fact that revealing his/her identity could endanger the life of the C.I. and destroy any further use of the C.I. The C.I. is credible and reliable due to the fact that he/she has led to the seizure of narcotics on more than three (3) occasions and led to arrest on more than three (3) occasions. The C.I. is also familiar with marijuana growing operations and the particular odor associated with a marijuana grow and has smelled that odor on several other prior occasions. The C.I. has also provided information that has led to the seizure of one (1) indoor marijuana grow.

Through your affiant[']s training and experience, fourteen (14) years as an employee of the Sheriff[']s Department and approximately six (6) years as a narcotics investigator, he is aware that marijuana growing is an ongoing operation and that based on the above information your affiant is requesting a search warrant be issued for 739 Churchman Ave. Beech Grove, Marion County, Indiana.

(Defendant's Ex. A.)

A search warrant was issued, and it was executed on July 27, 2007 by members of the Metropolitan Drug Task Force. They allegedly found 140 marijuana plants, several bags of marijuana, a digital scale with marijuana residue, cash, and firearms. Hoop was charged with Class D felony dealing in marijuana¹ and Class D felony possession of marijuana.²

On October 29, 2007, Hoop filed a motion to quash warrant and motion to suppress. A hearing was held on April 7, 2008. Sergeant Bradbury testified he was present when Detective Krider walked his dog, Sonny, "up to the front door under the porch," where Sonny "alerted to a narcotic odor inside the door." (Tr. at 18.) The officers did not have a warrant authorizing the dog sniff and did not have the homeowner's permission to walk onto the property.

On June 2, 2008, the trial court denied Hoop's motion. The trial court certified its order for interlocutory appeal, and we accepted jurisdiction.

DISCUSSION AND DECISION

The Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution require warrants to be supported by probable cause. Edwards v. State, 832 N.E.2d 1072, 1077 (Ind.Ct.App.2005). The task of the issuing magistrate is to "make a practical, commonsense decision" whether, in light of all the circumstances, there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Id. A reviewing court determines whether the magistrate had a "substantial basis for concluding that probable cause existed." Id. "While the determination of reasonable suspicion and probable cause requires de novo review on appeal, a trial court's determination of historical fact is entitled to deferential review." Myers v. State, 839 N.E.2d 1146, 1150 (Ind.2005) (citing Ornelas v. United States, 517 U.S. 690, 695-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Hoop argues the dog sniff of his door violated his rights under the Fourth Amendment and Art. 1, § 11 of the Indiana Constitution, and the remaining evidence was insufficient to establish probable cause to issue the search warrant.

1. Fourth Amendment

Hoop contends the dog sniff of his door is a search within the meaning of the Fourth Amendment, and therefore the officers were required to have a warrant before bringing the dog up to his home. He relies on United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), cert. denied sub nom. Wheelings v. United States, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985).

In Thomas, the Drug Enforcement Agency obtained a warrant to search Wheelings' apartment based in part on a dog sniff conducted outside his apartment. The Second Circuit noted the Supreme Court's holding in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) that a dog sniff of luggage in an airport was not a search within the meaning of the Fourth Amendment. However, the Second Circuit distinguished Place based on the heightened privacy interest in one's home:

It is one thing to say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search. The question always to be asked is whether the use of a trained dog intrudes on a legitimate expectation of privacy. While one generally has an expectation of privacy in the contents of personal luggage, this expectation is much diminished when the luggage is in the custody of an air carrier at a public airport.

We have recognized the heightened privacy interest that an individual has in his dwelling place.

* * * * * *

Although using a dog sniff for narcotics may be discriminating and unoffensive relative to other detection methods, and will disclose only the presence or absence of narcotics, it remains a way of detecting the contents of a private, enclosed space. With a trained dog police may obtain information about what is inside a dwelling that they could not derive from the use of their own senses. Consequently, the officers' use of a dog is not a mere improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument. Here the defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be "sensed" from outside his door.

Id. at 1366-67 (citations omitted).

Thomas has been roundly criticized. The Sixth Circuit provided the following critique of Thomas' reasoning:

Thomas seems to stand alone in its pronouncement that a canine sniff may constitute an unreasonable search. According to the Thomas court, the heightened privacy interest in a dwelling place renders a canine sniff intrusive on the inhabitant's expectation of privacy, even with respect to contraband. Yet, this holding ignores the Supreme Court's determination in Place that a person has no legitimate privacy interest in the possession of contraband, thus rendering the location of the contraband irrelevant to the Court's holding that a canine sniff does not constitute a search. Indeed, the Court later explained that "the reason [the Place canine sniff] did not intrude upon any legitimate privacy interest was that the governmental conduct could reveal nothing about noncontraband items." [United States v.] Jacobsen, 466 U.S. [109, 124 n. 24, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)].[³] In short, there is no legitimate interest in "privately" possessing cocaine.

U.S. v. Reed, 141 F.3d 644, 649-50 (6th Cir.1998) (some citations omitted).⁴

Hoop compares his case to Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Suspecting that Kyllo was using high-intensity lamps to grow marijuana in his home, an agent used a thermal imaging device to determine the amount of heat emanating from Kyllo's home. The scan took a few minutes and was performed from the agent's vehicle, which was parked across the street from Kyllo's...