McCollum v. State

• Decision Date: 30 September 2016
• Docket Number: No. 40A01–1604–CR–718.,40A01–1604–CR–718.
• Citation: 63 N.E.3d 5
• Parties: William C. McCOLLUM, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

63 N.E.3d 5

William C. McCOLLUM, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 40A01–1604–CR–718.

Court of Appeals of Indiana.

Sept. 30, 2016.

Ordered Published Oct. 13, 2016.

Mark J. Dove, Dove & Dillon, P.C., North Vernon, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

CRONE

, Judge.

Case Summary

[1] An Indiana Department of Natural Resources (“DNR”) law enforcement officer submitted an affidavit for a warrant to search William C. McCollum's residence and vehicles for evidence related to the illegal harvesting of ginseng. The judge who reviewed the affidavit found probable cause to issue a search warrant. The DNR officer and four other officers executed the warrant and found incriminating evidence in McCollum's home, and McCollum made incriminating statements at the scene. The State charged McCollum with several ginseng- and marijuana-related misdemeanors.

[2] McCollum filed two motions to suppress the evidence obtained during the search. The trial court denied both motions. In this interlocutory appeal, McCollum claims that the trial court erred, asserting that the search warrant was invalid because the affidavit lacked sufficient indicia of probable cause, that the good-faith exception to the exclusionary rule is inapplicable, and that his statements must be suppressed under the fruit of the poisonous tree doctrine. We agree and therefore reverse and remand for further proceedings consistent with our decision.

Facts and Procedural History ¹

[3] In September 2015, DNR Officer Matthew Hicks submitted an affidavit for a warrant to search McCollum's North Vernon residence and vehicles for evidence related to the illegal harvesting of ginseng. The judge who reviewed the affidavit found probable cause to issue a search warrant, which Officer Hicks and four other officers executed later that day. McCollum arrived at his home with Thomas Hartwell and Robert Boyd shortly after the officers did. Officer Hicks read the search warrant to McCollum and questioned him. McCollum stated that he had driven Hartwell and Boyd to harvest ginseng and had purchased ginseng from them that he planned to sell in Bloomington. The officers found ginseng, marijuana, and paraphernalia in McCollum's residence, and McCollum showed them ginseng that he had stored in his neighbor's shed. Officer Hicks then read McCollum his Miranda rights while other officers handcuffed him. The record does not indicate whether the officers searched McCollum's vehicles.

[4] In December 2015, the State charged McCollum with class B misdemeanor purchasing ginseng without a license, class B misdemeanor aiding, inducing, or causing harvesting of ginseng out of season,² class B misdemeanor possession of marijuana, and class C misdemeanor possession of paraphernalia. McCollum filed two motions to suppress the evidence obtained during the search, including the contraband and his statements. After a hearing, the trial court denied both motions. This interlocutory appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Section 1—The search warrant affidavit lacked sufficient indicia of probable cause, and therefore the warrant was invalid under the Fourth Amendment.

[5] McCollum claims that the trial court erred in denying his motions to suppress.

We review the denial of a motion to suppress in a manner similar to other sufficiency matters. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. 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.

Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000)

(citations omitted), trans. denied.

[6] McCollum first contends that the evidence seized during the search of his residence should be suppressed because the search warrant was invalid under the Fourth Amendment to the U.S. Constitution.³ To generally deter law enforcement officers from violating people's Fourth Amendment rights, the U.S. Supreme Court has created the exclusionary rule, which prohibits the admission of evidence seized in violation of the Fourth Amendment. Reinhart v. State, 930 N.E.2d 42, 48 (Ind.Ct.App.2010)

. The Fourth Amendment states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The warrant requirement is a principal protection against unnecessary intrusions into private dwellings. Chiszar v. State, 936 N.E.2d 816, 825 (Ind.Ct.App.2010)

, trans. denied (2011). “A defendant bears the burden of demonstrating the invalidity of a warrant.” Fry v. State, 25 N.E.3d 237, 245 (Ind.Ct.App.2015), trans. denied.

[7] More specifically, McCollum argues that the search warrant was invalid because Officer Hicks's affidavit lacked sufficient indicia of probable cause. “Probable cause has long been described as a fluid concept incapable of precise definition. It is to be decided based on the facts of each case.” Figert v. State, 686 N.E.2d 827, 830 (Ind.1997)

. “The level of proof necessary to establish probable cause is less than that necessary to establish guilt beyond a reasonable doubt.” Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995). “Probable cause means a probability of criminal activity, not a prima facie showing.” Fry, 25 N.E.3d at 244.

[8] The Indiana Supreme Court has stated,

In deciding whether to issue a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, commonsense 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.”

Jaggers v. State, 687 N.E.2d 180, 181 (Ind.1997)

(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). “The duty of the reviewing court is to determine whether the magistrate had a ‘substantial basis' for concluding that probable cause existed.” Id. (citing Gates, 462 U.S. at 238–39, 103 S.Ct. 2317 ). “ ‘[S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination’ of probable cause.” Id. at 181–82 (quoting Houser v. State, 678 N.E.2d 95, 99 (Ind.1997) ). “ ‘Reviewing court’ for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision.” Id. at 182. We review the trial court's substantial basis determination de novo. State v. Spillers, 847 N.E.2d 949, 953 (Ind.2006). We consider only the evidence presented to the issuing magistrate—in this case, Officer Hicks's affidavit—and not post hoc justifications for the search. Jaggers, 687 N.E.2d at 182 ; see also

Flaherty v. State, 443 N.E.2d 340, 343 (Ind.Ct.App.1982) ( “The issue ... is whether the affidavit itself, without additional information or testimony presented after the search warrant is executed, alleges sufficient facts upon which the issuing authority could have made an independent determination of probable cause.”).

[9] “[P]robable cause may be established by evidence that would not be admissible at trial.” Jellison, 656 N.E.2d at 534

. Such evidence may include hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless the Evidence Rules or other law provides otherwise. Ind. Evidence Rule 802

. Indiana Code Section 35–33–5–2(a) provides that a search warrant affidavit must particularly describe “the house or place to be searched and the things to be searched for,” allege “substantially the offense in relation thereto and that the affiant believes and has good cause to believe that ... the things sought are concealed there [,]” and set “forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause.” The statute further 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.

Ind.Code § 35–33–5–2(b)

. In Gates, the U.S. Supreme Court

indicated that the trustworthiness of hearsay for purposes of proving probable cause 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 shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Depending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay.

Jaggers, 687 N.E.2d at 182

.

[10] Officer Hicks's affidavit reads in pertinent part:

I, Matthew Hicks being an officer with the [DNR] Law Enforcement Division ... have probable cause to believe that certain properties constituting fruits, instrumentalities, and evidence of the crime of: Theft under IC 35–43–4–2

, Aiding, Inducing or Causing an Offense under IC 35–41–2–4, Hunting Ginseng without the consent of Landowner under IC 14–22–10–1(3) and Harvesting Illegal Ginseng under 14–31–3–13, 312 IAC 19–1–8 ;⁴ evidence of these crimes can be further substantiated at the properties hereinafter...