McGrath v. State
| Citation | 95 N.E.3d 522 |
| Decision Date | 01 May 2018 |
| Docket Number | Supreme Court Case No. 49S04–1710–CR–653 |
| Parties | Brandon MCGRATH, Appellant (Defendant) v. STATE of Indiana, Appellee (Plaintiff) |
| Court | Indiana Supreme Court |
ATTORNEYS FOR APPELLANT: Brian J. Johnson, Danville, Indiana, Todd L. Sallee, Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Indiana Attorney General, Laura R. Anderson, Ellen H. Meilaender, Deputy Attorneys General, Indianapolis, Indiana
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04–1610–CR–2270
After conducting an independent investigation to corroborate an anonymous tip of a potential marijuana grow operation at a private residence, police requested and received a warrant to conduct a thermal-imaging search of the home. Evidence led police to request a second warrant to search the physical premises, leading to the discovery of the alleged criminal activity and the arrest and conviction of Brandon McGrath for one count of dealing in marijuana and one count of marijuana possession, both Class D felonies. McGrath challenged both warrants for lack of probable cause—the first for failure to corroborate the tipster's allegation of criminal activity, and the second for relying on a fellow officer's hearsay observations of the thermal-imaging search.
Because we find that, under the totality of the circumstances, probable cause supported both warrants, we affirm the trial court's decision to uphold the rulings of the issuing magistrates.
In April 2014, an anonymous tipster alerted the Indianapolis Metropolitan Police Department of a possible marijuana grow operation at a private residence located at 5926 North Crittenden Avenue. In addition to describing the color of the house and noting its street address, the informant identified the occupants by their first names: Brandon and Kelsey. The informant further reported a bright light visible from a window at night and that the odor of marijuana often emanated from the premises.
Acting on this information, IMPD Detective Sergeant Kerry Buckner investigated the home, first verifying its color and address. While conducting daytime surveillance, the detective noted several windows with dark coverings and two air-conditioning units on the upper floor independent of the home's central air system. At night, the detective observed a "high intensity glow" emitting from an upstairs covered window. App. Vol. II p.16. He could not, however, corroborate the odor of marijuana. Finally, by searching police records and BMV databases, both unavailable to the public, Detective Buckner identified Kelsey Bigelow as the homeowner and Brandon McGrath as a resident.
Having partially corroborated the informant's tips, Detective Buckner then requested a search warrant for a "forward looking infrared" (FLIR) device, an aircraft-mounted thermal imaging camera used "to detect the presence of a heat signature commensurate with an indoor marijuana growing operation." Id. at 17.
In his probable-cause affidavit, Detective Buckner explained the thermal imaging process and outlined in detail the circumstances of the investigation, including the anonymous tip and the information gathered from his own surveillance. The affidavit further described the detective's training and experience in narcotics investigation, his experience with other officers "trained in the use of thermal image technology," and the elaborate processes of marijuana cultivation and the methods by which suspects attempt to evade law enforcement detection of their operations. Id. at 14.
Upon approval of the FLIR warrant, Detective Michael Condon and Sergeant Edwin Andresen executed the thermal-imaging search. During the inspection, Detective Condon reported an atypical heat signature emanating from the home. Armed with this supplemental evidence, Detective Buckner requested and received a second warrant to search the physical premises. In his sworn statement—which referenced the first affidavit and incorporated many of its details—Detective Buckner related Detective Condon's observations of the FLIR search as "consistent with the heat signature put off by lights used to grow marijuana indoors." Id. at 26. However, the second affidavit contained no information describing Detective Condon's training and experience.
A search of the house revealed an extensive marijuana grow operation, resulting in the seizure of 180 individual plants, heat lamps, plant fertilizer, dehydrators, drying racks, and deodorizing machines. Police arrested McGrath and the State charged him with one count of dealing in marijuana and one count of marijuana possession, both Class D felonies.1
At trial, McGrath moved to suppress the seized evidence, challenging the search warrants under the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. McGrath argued that both warrants lacked probable cause—the first for failure to establish the informant's credibility or corroborate the anonymous tip, and the second for relying on Detective Condon's hearsay observations of the FLIR search.
The trial court denied the motion to suppress, admitted the seized evidence over McGrath's objection, and found McGrath guilty as charged. The court stayed McGrath's sentencing pending appeal.
A divided Court of Appeals reversed McGrath's conviction, finding the first search warrant lacked probable cause due to insufficient evidence corroborating the informant's allegation of criminal activity. McGrath v. State , 81 N.E.3d 655, 668–69 (Ind. Ct. App. 2017), vacated . The majority concluded that the detective's training and experience, "[h]owever impeccable," was insufficient to convert the innocuous circumstances he observed—the window coverings, the A/C units, and the distinct lighting—into objective factors establishing probable cause of criminal activity. Id. at 668. The dissent, without reaching the question of probable cause, would have applied the good faith exception "to render the evidence collected from [the] residence admissible." Id. at 669.
The State petitioned for transfer, which we granted, thus vacating the Court of Appeals decision. Ind. Appellate Rule 58(A).
This case involves two judicial rulings: the magistrate's finding of probable cause to issue the warrant and the trial court's decision to uphold that finding. We review the latter ruling de novo but apply a deferential standard to the former, affirming the magistrate's decision to issue the warrant if a "substantial basis" existed for finding probable cause. Watkins v. State , 85 N.E.3d 597, 599 (Ind. 2017).
Under the Fourth Amendment to the U.S. Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. To preserve that right, a judicial officer may issue a warrant only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."Id. Article 1, Section 11 of the Indiana Constitution contains language nearly identical to its federal counterpart. And our statutory law codifies these constitutional principles, setting forth the requisite information for an affidavit to establish probable cause. See Ind. Code § 35–33–5–2 (2008).
I. Probable Cause Based on Hearsay
A probable-cause affidavit "need not reflect the direct personal observations of the affiant" but may instead rely on hearsay information. Aguilar v. Texas , 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), abrogated on other grounds by Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). For if the standard rules of evidence applied, "few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action" toward establishing probable cause. Brinegar v. United States , 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
Of course, not all hearsay amounts to probable cause. To the contrary, there must be some "reliable information establishing the credibility of the source" and "a factual basis for the information furnished." I.C. § 35–33–5–2(b)(1). Alternatively, a probable-cause affidavit must contain information that, under the totality of the circumstances, corroborates the hearsay. Id. § 35–33–5–2(b)(2).2
McGrath challenges both warrants for lack of probable cause based on uncorroborated hearsay in the underlying affidavits. We address each warrant in turn.
McGrath first argues that, because Detective Buckner failed to detect the odor of marijuana near the home, the affidavit supporting the FLIR warrant lacked sufficient evidence to corroborate the anonymous tip of criminal activity.3 The detective's training and expertise, McGrath asserts, could not "convert the innocuous circumstances he observed into particularized and objective factors giving rise to a probable cause of criminal activity." Response to Pet. to Trans. at 9.
The State counters that the window coverings, the A/C units, and the distinct lighting—taken together—proved sufficiently indicative of a marijuana grow operation to establish probable cause of criminal activity. By focusing on these otherwise mundane facts in isolation, and by ignoring the detective's relevant training and experience, the State contends, a court could find probable cause lacking in virtually any situation.
We agree with the State.
An anonymous tip cannot, standing alone, support a finding of probable cause. Jaggers v. State , 687 N.E.2d 180, 182 (Ind. 1997) (citing Gates , 462 U.S. at 227, 103 S.Ct. 2317 ). Instead, the reliability of hearsay from a source of unknown credibility depends on other factors,...
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