Hurst v. State

• Decision Date: 16 December 2010
• Docket Number: No. 49A02-1004-CR-378.,49A02-1004-CR-378.
• Citation: 938 N.E.2d 814
• Parties: William HURST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

938 N.E.2d 814

William HURST, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

No. 49A02-1004-CR-378.

Court of Appeals of Indiana.

Dec. 16, 2010.

Michael G. Shanley, Baker, Pittman & Page, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James E. Porter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

William Hurst appeals the trial court's order denying his motion to suppress. Specifically, he raises a single issue for our review, namely, whether the trial court erred when it denied his motion to suppress evidence obtained upon the execution of a search warrant.

We affirm.

FACTS AND PROCEDURAL HISTORY¹

In August 2009, Eric Thomas reported to the Indianapolis Metropolitan Police Department ("IMPD") that his eleven-year-old daughter, who lived with her mother and Hurst, her mother's boyfriend, had texted a photograph to Thomas of marijuana in the child's home. Officer Danny Asher was dispatched to check on the child's welfare at 2839 South Oxford Street in Indianapolis, where he met with Thomas. Thomas showed the texted photograph to Officer Asher. IMPD Detective Chad Osborne then arrived at the scene and also viewed the photograph. Based on his training and experience as a narcotics detective, Detective Osborne confirmed that the substance appeared to be marijuana.

Subsequently, IMPD Detective Christopher T. Smith executed an affidavit for a search warrant at 2839 South Oxford Street. The affidavit states in relevant part:

This investigation commenced when Officer Danny Asher with IMPD Southeast District responded to a dispatched run at 2839 South Oxford Street, Indianapolis, Marion County, Indiana. The run was to check the welfare of an eleven[-]year[-]old female. The complainant Eric Thomas stated that his daughter is living at the residence with her mother and her [mother's] boyfriend. The complainant's eleven[-]year[-]old daughter who was at the residence, advised her father that there was an amount of marijuana inside the residence. Once on scene, Officer Asher advised this affiant that the eleven [-]year[-]old female took a picture of the suspected marijuana inside 2839 South Oxford Street and sent the picture via text message to Mr. Thomas who showed Officer Asher. Detective Chad Osborne arrived at 2839 South Oxford Street and observed the text message on Mr. Thomas's phone. Detective Osborne knows that [sic] through his training and experience as a narcotics detective that the substance in the picture appeared to be suspected marijuana. [Neither t]he eleven[-]year[-]oldfemale's mother nor her boyfriend were on scene.

Appellant's App. at 46. Based on the affidavit, on August 11, a magistrate issued a search warrant authorizing law enforcement officers to search the residence located at 2839 South Oxford Street. In a search conducted under that warrant, the officers discovered marijuana.

On August 12, the State charged Hurst with one count of dealing in marijuana and one count of possession of marijuana, both as Class D felonies. On October 28, Hurst filed a motion to suppress evidence obtained upon execution of the search warrant.² On November 17, following a hearing on Hurst's motion, the court took the matter under advisement. On December 22, the court ruled orally on the motion as follows:

[A]fter considering the evidence and the testimony, and I had a transcript of our hearing. It is a very unique situation and one that—I looked [at] the statute requiring—the requirements for an affidavit and when it comes down to hearsay, and when it contains hearsay the biggest thing is the officer must take steps to verify as best they [sic] can the corroboration and the information that they [sic] have presented to the magistrate and was before them [sic]. Given the circumstances—frankly I don't—I am going to deny your motion to suppress. I frankly—this was—I don't see anything else that could have been done in terms of what you want an 11[-]year[-]old girl to do when she is confronted with the facts she was confronted with. As far as reporting that to the person that they [sic] trust[,] i.e.[,] the father[,] and the father reporte[d] to the police. The issue of whether or not there is any custody issue going on, that was to the best of my knowledge not known to the officers and also not conveyed to the magistrate, but based on the paragraph and the information contained in the search I do believe that there was enough probable cause to issue the search warrant. So I think that the steps that were taken by the officer based on the evidence and the facts confronted by them [sic] warrant the actions that they [sic] took....

Appellant's App. at 52-53.

On January 13, 2010, Hurst filed a petition to certify the trial court's order for interlocutory appeal and to stay proceedings pending appeal. On January 19, the court granted Hurst's petition but also asked the parties to submit proposed findings and conclusions by February 16. On March 5, the court entered its Findings of Fact and Conclusions of Law to supplement its December 22 order on Hurst's motion to suppress. The court found, in relevant part:

3. The probable cause for the issuance of the search warrant was based on the information provided by cooperating citizen [sic], Eric Thomas and his eleven [-]year[-]old daughter.

4. The court held in particular that an eleven[-]year[-]old child cannot be expected to have the maturity and presence of mind to contact law enforcement officials on her own and it is entirely reasonable that, when faced with a situation which makes her fearful, she turns to her father for assistance, guidance, and protection.

5. The court further found that parents must be able to report to law enforcement the crimes which their minor children report to them, but which those parents may not have witnessed themselves.

Appellant's App. at 56-57. The court concluded that Thomas had reported to police as a cooperating citizen and that cooperating citizens "are to be considered reliable for the purpose of determining probable cause. Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230, 1232-33 (1978)." Id. at 57. The court further concluded that corroborating information "can come in the form of photographs, business documents, written communications, scientific facts, court records, criminal histories, and other official records." Id. at 59.

On March 8, Hurst filed a second petition to certify the court's order for interlocutory appeal and to stay proceedings pending appeal, and the trial court granted the petition. And, on May 14, this court accepted jurisdiction of the appeal.

DISCUSSION AND DECISION

Hurst contends that the warrant to search his home was not supported by probable cause. This court has set out the standard of review and law regarding probable cause to support search warrants:

In deciding whether to issue a search warrant, the task of the issuing judge is to make a practical, common sense 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. Query v. State, 745 N.E.2d 769, 771 (Ind.2001) (citing [ Illinois v.] Gates[, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ] ); Hensley v. State, 778 N.E.2d 484, 487 (Ind.Ct.App.2002). The reviewing court is required to determine whether the issuing judge had a "substantial basis" for concluding that probable cause existed. Query, 745 N.E.2d at 771 (quoting Gates, 462 U.S. at 238-39 ); Hensley, 778 N.E.2d at 487. A substantial basis requires the reviewing court, with significant deference to the issuing judge's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Query, 745 N.E.2d at 771; Houser v. State, 678 N.E.2d 95, 99 (Ind.1997). "A 'reviewing court' for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision." Query, 745 N.E.2d at 771. In our review, we consider only the evidence presented to the issuing judge and may not consider post hoc justifications for the search. Id. (citing Seltzer v. State, 489 N.E.2d 939, 941 (Ind.1986)).

The Fourth Amendment to the United States Constitution, which is made applicable to the states by reason of the Fourteenth Amendment, protects citizens from unreasonable searches and seizures. Creekmore v. State, 800 N.E.2d 230, 233 (Ind.Ct.App.2003). The Fourth Amendment demands that no search warrant be issued unless it is supported by probable cause. Id. Probable cause is a fluid concept, which is decided based on the facts of each case. Id. " 'Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime.' " Id. (quoting Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994)).

Probable cause to issue a search warrant cannot be supported by uncorroborated hearsay from an informant whose credibility is unknown. Creekmore, 800 N.E.2d at 234. I.C. § 35-33-5-2(b) requires that when a warrant is sought based on hearsay, an affidavit supporting the probable cause 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 that the totality of the circumstances corroborates the hearsay.

I.C. § 35-33-5-8 allows an exception to I.C. § 35-33-5-2 and permits a judge to receive the same information that would otherwise be included in this affidavit through sworn oral testimony.

The reliability of hearsay may be established if: (1) the informant has given correct information in the past; (2) independent police investigation corroborates the informant's

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