Huffines v. State, 49A02-0006-CR-377.

• Decision Date: 21 December 2000
• Docket Number: No. 49A02-0006-CR-377.,49A02-0006-CR-377.
• Citation: 739 N.E.2d 1093
• Parties: Stanley R. HUFFINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

739 N.E.2d 1093

Stanley R. HUFFINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0006-CR-377.

Court of Appeals of Indiana.

December 21, 2000.

Timothy J. Burns, Robert W. Hammerle, Indianapolis, Indiana, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant Stanley Huffines ("Huffines") appeals the denial of his motion to suppress. We reverse.¹

Issue

Huffines raises one issue: whether a "search warrant was invalid due to [the] dissipation of probable cause because of the passage of eight (8) days from issuance and eleven (11) days since the incident giving rise to probable cause."

Facts and Procedural History

Within seventy-two hours prior to May 27, 1999, Officer Douglas Cook ("Cook") and a confidential informant ("C.I.") went to Huffines' residence to purchase drugs. C.I. entered Huffines' home and observed cocaine therein. Huffines stated that the substance was cocaine and that it was for sale. C.I. purchased cocaine, exited the home, and gave the cocaine to Cook. In an affidavit seeking a search warrant, Cook detailed C.I.'s observation and cocaine purchase and alleged "that a controlled substance, to wit: Cocaine . . . is being kept, used and sold from" Huffines' residence. On May 27, 1999, at 1:30 p.m., the court issued a warrant, based upon the affidavit, to search Huffines' residence. The warrant authorized the police to search for "[c]ocaine, an extract of Coca, all monies, papers, records, documents, electronic information, or any other documentation which indicates or tends to indicate a violation or a conspiracy to violate the Indiana Controlled Substance Act." During the search, which was executed on June 4, 1999, at 6:32 a.m., the police discovered the following items:

inside Huffines' right front shirt pocket, clear plastic baggies containing a total of 7.0566 grams of cocaine and 0.5210 grams of methamphetamine;

in Huffines' right front pants pocket, $2,153;

in the small of Huffines' back inside his pants, a Smith and Wesson 5 shot revolver handgun loaded with 5 live rounds;

inside desk drawers, several clear plastic baggies containing a total of 3.7391 grams of cocaine and 24.7271 grams of methamphetamine in a Crown Royal bag, a box of clear sandwich baggies that was concealing a small clear plastic bag containing 1.18 grams of marijuana, $270, a small clear plastic baggy containing 0.2362 grams of cocaine, one marijuana cigarette, 2 partially smoked marijuana cigarettes, a box containing 2 spoon like devices and 1 knife like device coated with a cocaine/methamphetamine mix, and partial straws and razor blades coated with cocaine residue;

on the desk, $29;

in a safe, several clear plastic baggies containing a total of 58.6286 grams of cocaine, 2.3521 grams of methamphetamine, and 5.26 grams of marijuana, 4 handguns; and

in a second safe, $4,000 and 3 handguns with ammunition.

On June 8, 1999, the State charged Huffines with dealing in cocaine,² a Class A felony, possession of cocaine,³ a Class C felony, dealing in a controlled substance,⁴ a Class B felony, possession of a controlled substance,⁵ a Class D felony, and possession of marijuana,⁶ a Class A misdemeanor. Huffines filed a motion to suppress the evidence seized during the search. After holding a hearing on the matter, the trial court denied Huffines' motion. Huffines filed and the court denied his motion to reconsider the motion to suppress. The trial court certified to this court its order denying Huffines' motion. We accepted jurisdiction under Appellate Rule 4(B)(6), and this interlocutory appeal ensued.

Discussion and Decision

Huffines contends that his suppression motion should have been granted because the police relied upon a stale search warrant to search his home. His argument is as follows. The probable cause to search his residence was based upon a single occurrence, that is, C.I.'s observation of drugs in Huffines' residence. The probable cause dissipated during the eight- to eleven-day period that separated the day that C.I. saw the drugs from the day that the police performed the search. Once the warrant was no longer supported by probable cause, it was void as a matter of law. Therefore, the police relied upon a defective warrant to perform their search; the search was illegal under the Fourth Amendment of the U.S. Constitution and Article One, Section 11 of Indiana's constitution; and the court should have suppressed the evidence obtained during the search. The State responds that the trial court properly denied Huffines' motion to suppress because the warrant was not stale at the time of execution. Rather, the search fell within the ten-day time frame permitted by statute to execute a warrant.⁷

In a recent decision reversing the denial of a motion to suppress we set out the relevant standards of review.

When ruling on the admissibility of evidence, the trial court is afforded broad discretion, and Indiana appellate courts will only reverse the ruling upon a showing of abuse of discretion. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court.

. . . .

[W]hen reviewing a trial court's ruling on the validity of a search and seizure: we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial probative evidence.

Hanna v. State, 726 N.E.2d 384, 387-88 (Ind.Ct.App.2000) (citations omitted).

"A search warrant must be: (1) executed not more than ten (10) days after the date of issuance[.]" IND.CODE § 35-33-5-7(b). Indisputably, the search of Huffines' residence was conducted within ten days after the warrant was issued and was therefore in compliance with Indiana Code Section 35-33-5-7(b). However, the fact that the search did not violate the statute does not address Huffines' separate constitutional arguments. See Jaggers v. State, 687 N.E.2d 180, 183 (Ind.1997)

(noting the Fourth Amendment's and Indiana's constitutional and statutory protections "against unreasonable searches and warrants without probable cause").

The ten-day limitation of Indiana Code Section 35-33-5-7, enacted in 1981, provides the same period of time that exists for the execution of a federal search warrant. See Fed.R.Crim.P. 41. Under the federal rule, a federal search warrant must state "a specified period of time" within which the warrant may be executed not to exceed ten days from the issuance of the warrant. See id. One commentator has pointed out that "[e]ven if the issuing magistrate specifies a period of ten days, however, some federal courts have held that this period may be excessive under certain circumstances." 16 WILLIAM ANDREW KERR, INDIANA PRACTICE, CRIMINAL PROCEDURE PRETRIAL § 2.4(c), at 230 (1991).

According to this viewpoint, probable cause must exist at the time that a search warrant is executed. Therefore, an officer who obtains a search warrant must execute the warrant immediately or must reevaluate all of the facts and circumstances again when executing the warrant at a later time to determine if probable cause still exists at that time. If the facts or circumstances indicate that probable cause does not continue to exist from the time that a warrant is issued to the time that it is finally executed, then the warrant is invalid and cannot be executed.

Id. at 230-31 (footnote omitted).

United States v. Gibson, 123 F.3d 1121 (8th Cir.1997) exemplifies the aforementioned viewpoint. Gibson challenged the district court's denial of his motion to suppress, arguing that the search warrant was stale because probable cause dissipated during a four-day delay in executing the warrant. See id. at 1124. The Eighth Circuit set out the law as follows:

"Probable cause is a fair probability that contraband or evidence of a crime will be found in the location to be searched." LaMorie, 100 F.3d at 552. We determine probable cause "under a totality-of-the-circumstances approach." Id. at 553. A delay in executing a search warrant may render stale the probable cause finding. United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied, 516 U.S. 903, 116 S.Ct. 265, 133 L.Ed.2d 188 (1995). Important factors to consider in determining whether probable cause has dissipated, rendering the warrant fatally stale, include the lapse of time since the warrant was issued, the nature of the criminal activity, and the kind of property subject to the search. Id. See also United States v. Rugh, 968 F.2d 750, 754 (8th Cir.1992)

.

Id. (emphasis added). In Gibson, the detective testified that he waited four days to execute the search "to provide some protection for the identity and safety of the informant." Id. at 1125. Further,

[t]o make certain that there still would be controlled substances in the apartment when the warrant was executed, [the detective] asked the informant to notify him if there appeared to be any increase or decrease in traffic to and from Gibson's apartment. [The detective] testified that the traffic flow at Gibson's apartment would indicate the presence of controlled substances and drug trafficking activity. The district court denied Gibson's suppression motion, finding that although there was no evidence here of a large-scale drug operation, the police had information available to them indicating on-going drug activity at Gibson's apartment. The district court concluded that the confidential informant's statements about drug trafficking activity at the apartment were sufficiently indicative of continued drug dealing to provide probable cause at the time the warrant was issued.

Id....