Marlowe v. State

• Citation: 786 N.E.2d 751
• Decision Date: 16 April 2003
• Docket Number: No. 46A03-0207-CR-229.,46A03-0207-CR-229.
• Parties: Jeffrey J. MARLOWE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

786 N.E.2d 751

Jeffrey J. MARLOWE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 46A03-0207-CR-229.

Court of Appeals of Indiana.

April 16, 2003.

Craig V. Braje, Elizabeth A. Flynn, Braje & Nelson, LLP, Michigan City, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

The State filed charges against Jeffrey Marlowe for Possession of Marijuana and Possession of Cocaine with Intent to Deliver. Marlowe filed a Motion to Suppress all of the evidence seized as a result of a search warrant executed at his residence. Following a hearing, the trial court denied Marlowe's Motion to Suppress. Marlowe filed this interlocutory appeal. We affirm.

Issue

Marlowe raises a single issue for our review which we restate as whether the trial court properly denied his Motion to Suppress.

Facts and Procedural History

Marlowe owned and operated a business at 922 Chicago Street in Michigan City, Indiana. His residence was on the corner of Western Avenue and Columbia Street at 132 Columbia. A confidential informant told the Michigan City Police Department that he had seen narcotics at Marlowe's business. Additionally, the informant told the police department that he had seen narcotics at Marlowe's residence, but incorrectly identified the residence as 132 Western Avenue. Also, the police received an anonymous tip that there was illegal activity at Marlowe's residence. The Michigan City Police Department conducted two controlled buys at Marlowe's business in one day. No controlled buys occurred at Marlowe's residence. As a result of these controlled buys, a probable cause hearing was held by the LaPorte Circuit Court and an Order for Search Warrant for Marlowe's residence was entered by the court. The warrant identified Marlowe's residence as 132 Western Avenue.

On February 7, 2002, the police searched Marlowe's residence. After finding narcotics evidence intended for use at trial, the police arrested Marlowe. Marlowe filed a Motion to Suppress the evidence confiscated at his residence. At the hearing on the Motion to Suppress, Marlowe's attorney was not allowed to fully cross-examine all witnesses. The trial court denied Marlowe's Motion to Suppress and this interlocutory appeal ensued.

Discussion and Decision

I. Standard of Review

We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Scott v. State, 775 N.E.2d 1207, 1209 (Ind.Ct.App.2002). We do not reweigh the evidence and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Id.

II. Marlowe's Motion to Suppress

Marlowe contends that his Motion to Suppress was erroneously denied because the search warrant incorrectly identified the house. Additionally, he argues that the search warrant was not based on probable cause. Generally, a search warrant should not issue unless it particularly describes the place to be searched and things or persons to be seized. U.S. Const. amend. IV; Ind.Code § 35-33-5-2(a)(1); Houser v. State, 678 N.E.2d 95, 100 (Ind.1997). In Houser, the search warrant issued erroneously identified the building to be searched as 1435 South Hoyt Avenue instead of 1435 South Kinney Avenue. However, the warrant stated that the officers were to search a cement block building bearing the words "Lee's Automotive." The court held that the warrant sufficiently described the property to be searched despite the mistake. Id. at 101.

Citing the holding in Houser, Marlowe states that the search warrant here should be invalidated because the address was wrong. Also, Marlowe argues that the warrant at question here, unlike the warrant in Houser, does not describe the property with such specificity that it is distinguished from the buildings around it.

In Willard v. State, 272 Ind. 589, 400 N.E.2d 151 (1980), our supreme court examined probable cause in a warrant issued to search a motor home. The search warrant contained an incorrect designation of the license number and model year of the motor home. The court held that a search warrant need only be sufficiently specific to identify the house or place to be searched for the officers who serve the warrant. Id. at 155.

Although the warrant issued in the present case did not contain the kind of specific identifying information as the warrant issued in Houser, the warrant issued here was sufficiently specific for the officers who served the warrant. Besides the address, the warrant identified the house as white in color and as a single family dwelling. Appellant's Appendix at 10.

Additionally, we note that Marlowe has presented no evidence to this court that the proper address for his residence is 132 Columbia Street rather than 132 Western Avenue. There is nothing in the record to show that the address on the search warrant is incorrect.¹ Therefore, the trial court did not err in finding that the search warrant sufficiently described the address of the house to be searched.

Next, Marlowe contends that the search warrant was not based on probable cause. Marlowe contends that the confidential informant lacked the required indicia of credibility. The United States Supreme Court has held that uncorroborated hearsay from an informant whose credibility is unknown cannot suffice to satisfy the probable cause requirement for the issuance of a search warrant. Illinois v. Gates, 462 U.S. 213, 227, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The federal test for ensuring the reliability of a hearsay statement in a probable cause determination allows the use of hearsay only if the totality of the circumstances corroborates the hearsay. Lloyd v. State, 677 N.E.2d 71, 74 (Ind.Ct.App.1997), trans. denied (quoting Gates, 462 U.S. at 230-31, 103 S.Ct. 2317). The reliability of hearsay can be established in a number of ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant's statements, (3) some basis for the informant's knowledge is demonstrated, or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Jaggers v. State, 687 N.E.2d 180, 181 (Ind.1997) (quoting Gates, 462 U.S. at 238,103 S.Ct. 2317).

Further, Indiana Code section 35-33-5-2(b) provides:

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 that the totality of the circumstances corroborates the hearsay.

Marlowe concedes that the magistrate at the probable cause hearing asked Officer Mark Swistek whether the Michigan City Police Department had relied on the confidential informant in the past and Officer Swistek responded affirmatively. Additionally, Marlowe concedes that the magistrate asked Officer Swistek whether the information from the informant had always proven truthful and accurate and again, Officer Swistek responded affirmatively. However, Marlowe contends that simply responding affirmatively without offering a factual basis for the hearsay is not sufficient to establish a factual basis for the search warrant.

Marlowe refers us to Newby v. State, 701 N.E.2d 593 (Ind.Ct.App.1998), in support of his position. In Newby, this court examined a search warrant which was based on "hearsay within hearsay,"—the officer seeking the warrant was reporting what a witness had allegedly told another...