Lloyd v. State

Decision Date28 February 1997
Docket NumberNo. 53A01-9608-CR-249,53A01-9608-CR-249
Citation677 N.E.2d 71
PartiesOtis LLOYD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

BAKER, Judge.

In this interlocutory appeal, appellant-defendant Otis Lloyd contests the denial of his motion to suppress the marijuana discovered during a search of his apartment. In particular, Lloyd contends that the deputy sheriff conducted the search pursuant to an invalid search warrant. He further contends that the State cannot circumvent the invalid warrant through the good faith exception.

FACTS

On May 11, 1995, Morgan County Deputy Sheriff Larry D. Sanders appeared before a Morgan County magistrate to obtain a search warrant for Lloyd's apartment in Bloomington, Indiana. In order to procure the warrant, Deputy Sanders testified to the facts which he believed established probable cause. In particular, Deputy Sanders stated that he had attempted an undercover marijuana purchase from Virginia Buckley. During the attempted purchase, Deputy Sanders followed Buckley to an apartment in Bloomington which she identified as belonging to her source and observed her enter. Shortly thereafter, Buckley exited the apartment and informed Sanders that "he's not home right now, he doesn't have anything." Record at 8. Thereafter, Deputy Sanders discovered that Lloyd lived in the apartment where Buckley attempted to purchase marijuana.

Approximately one and one-half weeks later, Deputy Sanders attempted another undercover buy from Buckley. This time Buckley handed Deputy Sanders some marijuana and informed him that she could get more marijuana from her source in Bloomington. Although Buckley never named her source, Deputy Sanders testified that he believed it to be Lloyd. After hearing the testimony, the magistrate determined that probable cause existed to support a search for marijuana in Lloyd's apartment and issued the warrant. The subsequent search of Lloyd's apartment revealed marijuana.

On June 28, 1995, Lloyd was charged with Possession of Marijuana, 1 a Class D felony, and Dealing in Paraphernalia, 2 a Class D felony. Prior to trial, Lloyd filed a motion to suppress the marijuana found during the search of his apartment claiming that the only evidence offered by Deputy Sanders to support the issuance of the search warrant was the unreliable hearsay statements of Virginia Buckley. The trial court subsequently denied the motion on February 14, 1996. Lloyd now appeals the denial of his motion to suppress.

DISCUSSION AND DECISION

Lloyd raises several challenges to the validity of the search of his apartment. First, Lloyd contends that Deputy Sanders failed to establish probable cause as required by the Fourth Amendment to the United States Constitution and IND. CODE § 35-33-5-2(b) since the information supporting a finding of probable cause was based on Buckley's unreliable hearsay statements. Second, Lloyd argues that the good faith exceptions set forth by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and IND. CODE § 35-37-4-5 are inapplicable to cure the invalid warrant. Finally, Lloyd argues that the search of his apartment violated Article I, Section 11 of the Indiana Constitution in that the search as a whole was unreasonable.

I. Probable Cause

Both the Fourth Amendment to the United States Constitution 3 and IND. CODE § 35-33-5-1 4 require a search warrant to be supported by probable cause. In order to establish probable cause for a search a law enforcement officer must show that crime-connected items exist and that they can be discovered in a specific place. IND. CODE § 35-33-5-2(a)(1)(A). In determining whether probable cause exists to support the issuance of a warrant, the magistrate makes a "practical, common-sense decision whether, given all the circumstances ... there is a fair probability that evidence of a crime will be found." Bigler v. State, 602 N.E.2d 509, 514 (Ind.Ct.App.1992), trans. denied.

When reviewing a magistrate's decision to issue a warrant, this court applies a deferential standard. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); Cutter v. State, 646 N.E.2d 704, 713 (Ind.Ct.App.1995), trans. denied. 5 We will affirm the magistrate's decision to issue a warrant if the magistrate had a substantial basis for concluding that probable cause to search existed. Bigler, 602 N.E.2d at 514.

In the instant case, the majority of the evidence presented by Deputy Sanders in support of the warrant consisted of the hearsay statements of Virginia Buckley. Hearsay statements, which are statements made by one other than the declarant while testifying at a trial or hearing and which are offered in evidence to prove the truth of the matter asserted, may be used to establish probable cause. However, both the Indiana legislature and the United States Supreme Court have set forth certain requirements to ensure that the hearsay used to support the probable cause finding is reliable.

The Indiana legislature's requirements for hearsay are contained in IND. CODE § 35-33-5-2(b)(1) and (2) which provides that an affiant who is attempting to establish probable cause must show that his sworn testimony or affidavit:

(1) contain[s] 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[s] information that establishes that the totality of the circumstances corroborates the hearsay.

Similar to section two of the statute, the federal test for ensuring the reliability of a hearsay statement in determining probable cause allows the use of hearsay if the totality of the circumstances corroborates the hearsay. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). Initially, we note that the record reveals that Deputy Sanders did not attempt to establish that Buckley's hearsay statements satisfied I.C. § 35-33-5-2(b)(1). In particular, Deputy Sanders did not establish that Buckley was credible, that her information was reliable or that she had firsthand knowledge of the fact that Lloyd possessed marijuana in his apartment. Thus, in order for the warrant to be valid pursuant to I.C. § 35-33-5-2(b)(2) and the Fourth Amendment, Deputy Sanders must have shown that the totality of the circumstances corroborated the hearsay.

To determine whether the totality of the circumstances corroborates the hearsay, a magistrate considers whether there is a fair probability, given all the circumstances, including the veracity and basis of knowledge of the persons supplying the hearsay information, that evidence of a crime will be found in a particular place. Bigler, 602 N.E.2d at 514; Gates, 462 U.S. at 238, 103 S.Ct. at 2332. In the present case, the record reveals that Buckley informed Deputy Sanders that she could get more marijuana from her source in Bloomington. It is conceivable that Deputy Sanders, based on his knowledge that Buckley once attempted to obtain marijuana from Lloyd, believed that Buckley was referring to Lloyd in her statement. However, Buckley never specifically identified Lloyd as her source. Furthermore, the one time that Buckley attempted to obtain marijuana from Lloyd, she was unsuccessful. 6 The totality of the circumstances do not corroborate Buckley's hearsay statement. Thus, Deputy Sanders failed to establish that probable cause existed pursuant to both I.C. § 35-33-5-2(b) and the Fourth Amendment. Therefore, the trial court erred in issuing a warrant to search Lloyd's apartment.

II. 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. Leon, 468 U.S. at 922, 104 S.Ct. at 3420; I.C. § 35-37-4-5. 7 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. at 3420-21; Doss v. State, 649 N.E.2d 1045, 1047 (Ind.Ct.App.1995). Here, Lloyd contends that the good faith exception does not apply because the warrant was so lacking in indicia of probable cause that Deputy Sanders could not have formed an objectively reasonable belief in the validity of the warrant. 8

To support his argument, Lloyd relies on our supreme court's holdings in Everroad v. State, 590 N.E.2d 567 (Ind.1992) and Bradley v. State, 609 N.E.2d 420 (Ind.1993). In Everroad, a magistrate issued a search warrant for the defendant's home to find a stolen television set. Id. at 570. Probable cause for the warrant was based upon a lengthy string of hearsay statements. Id. at 571. The court held that the hearsay statements did not establish probable cause for the issuance of the warrant since the officer who offered the statements did not establish the source of the hearsay or its credibility. Id. The court further held that the good faith exception did not justify the search since the warrant was lacking in indicia of probable cause. Id. The court reasoned that based solely on the string of hearsay statements, no officer could harbor...

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