Newby v. State, 88A04-9711-CR-483
| Decision Date | 30 October 1998 |
| Docket Number | No. 88A04-9711-CR-483,88A04-9711-CR-483 |
| Citation | 701 N.E.2d 593 |
| Parties | Gary Michael NEWBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
On May 6, 1997, Indiana State Police officers and Federal Alcohol, Firearm and Tobacco ("ATF") agents executed a search warrant at the residence of Gary M. Newby. During the search, the officers discovered various drugs, drug paraphernalia, weapons and large amounts of cash. Subsequent to Newby's arrest, the State filed a nineteen-count information charging Newby with both drug and weapons violations. In September of 1997, Newby filed a motion to dismiss the five weapons charges and a motion to suppress the evidence seized during the search of his home. After a hearing, the trial court denied both motions. Newby filed a motion to certify the trial court's order for interlocutory appeal pursuant to Indiana Appellate Rule 4(B)(6), which we granted, and this appeal ensued. Newby presents multiple issues for review. However, the dispositive issue is whether the trial court erred when it denied Newby's motion to suppress.
We reverse and remand. 1
On May 5, 1997, Sergeant Myron Wilkerson of the Indiana State Police received information that a cocaine delivery was to occur that night in the IGA grocery store parking lot in Salem, Indiana. As a result, Sergeant Wilkerson, along with other state policemen, conducted surveillance on the lot. At some point, Sergeant Wilkerson and the others observed a vehicle enter the lot and park. The officers approached the vehicle and asked the driver, Steve Calloway, to exit the car. Wilkerson then conducted a pat down search of Calloway, during which he discovered approximately two ounces of cocaine, but no weapons. Wilkerson advised Calloway of his Miranda rights and told him that it would be in his best interest if he consented to a search of the vehicle, which belonged to his wife. Calloway eventually signed a consent to search the car, after which Wilkerson asked him if the officers would find any contraband in the vehicle. To avoid having the vehicle damaged during the search, Calloway told Wilkerson that there were drugs in the console. The search of the vehicle revealed the presence of an additional two ounces of cocaine and one-half ounce of marijuana.
Calloway was then asked by Sergeant Wilkerson for the name of the individual from whom he had purchased the drugs; however, Calloway was initially reluctant to answer. Wilkerson proceeded to question Calloway about his family, informed him of the possible penalty for his drug offense if prosecuted and asked him to cooperate by identifying his source. Calloway eventually agreed to cooperate with the officers and to serve as an informant. Calloway then identified his drug supplier as Newby. He further stated, that on the following day, he planned to deliver $3,000.00 to Newby for the cocaine the officers had discovered in his vehicle and that he also expected to purchase five pounds of marijuana from him. In addition, Calloway described Newby's residence and told the officers that he had seen automatic weapons there in the past.
After receiving this information, Sergeant Wilkerson arranged to have Calloway deliver the $3,000.00 to Newby on May 6, 1997. That morning, Calloway made a telephone call to Newby, which was monitored and recorded. There was no mention of either drugs or money on the audible portions of the tape recording. Later that day, Indiana State Trooper Radford Guinn drove to Newby's residence to verify Calloway's description of and directions to Newby's home. Trooper Guinn then signed an affidavit for a search warrant of Newby's residence.
Next, Trooper Guinn arranged to meet Judge Frank Newkirk, Jr., so that he could review the affidavit for the search warrant. Judge Newkirk signed the warrant but indicated verbally that the warrant should not be executed until after the $3,000.00 had been delivered. Meanwhile, officers searched Calloway, wired him with a tape recording device and gave him $3,000.00 with recorded serial numbers.
Calloway then proceeded to Newby's residence. After discovering that Newby was not there, he reported back to the officers. Calloway returned a second time and was inside Newby's house for approximately forty-five minutes. He then left without the $3,000.00. Calloway did not purchase any drugs.
At some point, Sergeant Wilkerson, who was standing by with the search crew, received word that the money had been delivered. On Wilkerson's command, the search crew of Indiana State Police officers and ATF agents entered Newby's residence and executed the warrant. Pursuant to the search, the officers and agents recovered fully-automatic machine guns, a semi-automatic firearm, approximately one hundred pounds of what appeared to be marijuana, cocaine and various drug paraphernalia. The officers discovered cash hidden in different areas of the residence and also recovered cash from Newby's person, some of which matched the marked bills the officers had provided Calloway. The officers then arrested Newby, and he gave a statement to the police. 2 The State charged Newby with nineteen counts of various drug and weapons offenses.
Newby moved unsuccessfully to suppress all evidence seized from his residence as a result of the search. He now challenges the trial court's denial of that motion.
As an initial matter, we address an issue that the parties characterize as an issue of first impression in this State. In particular, both parties allege that the search warrant in this case was an "anticipatory search warrant" and ask that we determine the validity of such warrants in Indiana.
"An anticipatory search warrant is a search warrant based upon probable cause to believe that at some future time, but not currently, the items sought will be located at a particular place." 79 C.J.S. Searches and Seizures § 172, at 260. Article I, § 11 of the Indiana Constitution 3 and Indiana Code §§ 35-33-5-1and -2 require that probable cause exist before a warrant shall issue. Further, Indiana Code § 35-33-5-2(a)(2)(A) provides that a magistrate may not issue a warrant unless the affiant shows that he has good cause to believe that "the things as are to be searched for are there concealed." (emphasis added).
While a warrant may contain conditions precedent which must occur prior to its execution, a magistrate may not issue a warrant that is not supported by probable cause when it is issued. Stated differently, absent probable cause at the time the warrant is issued, the occurrence or nonoccurrence of any conditions precedent is irrelevant. If execution of the warrant is made subject to conditions precedent, those conditions should appear within the four corners of the warrant. 4 In any event, a warrant that relies on the occurrence of a future event to supply the requisite probable cause is deficient on its face. See IND.CODE § 35-33-5-2(a)(2)(A). Consequently, we must first address whether the affidavit for search warrant was supported by probable cause.
Newby maintains that the issuing magistrate did not have a substantial basis for concluding that the affidavit established probable cause. Specifically, Newby argues that Trooper Guinn's affidavit, which relied on hearsay statements, failed to establish Calloway's credibility. He argues further that the totality of the circumstances did not corroborate the hearsay. 5 We must agree.
In determining whether to issue a search warrant, " '[t]he task of the issuing magistrate is simply 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.' " Jaggers v. State, 687 N.E.2d 180, 181 (Ind.1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). When reviewing a magistrate's decision to issue a warrant, the reviewing court applies a deferential standard. Lloyd v. State, 677 N.E.2d 71, 73 (Ind.Ct.App.1997), trans. denied. We will affirm the magistrate's decision to issue the warrant if the magistrate had a "substantial basis" for concluding that probable cause to search existed. Id. "Substantial basis" requires us to focus on whether the reasonable inferences drawn from the totality of the evidence support the probable cause determination. Jaggers, 687 N.E.2d at 181-82.
The United States Supreme Court has held that uncorroborated hearsay from a source whose credibility is itself unknown, standing alone, cannot support a finding of probable cause to issue a search warrant. Gates, 462 U.S. at 227, 103 S.Ct. at 2326, 76 L.Ed.2d at 542. 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, 677 N.E.2d at 74 (citing Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328-29, 76 L.Ed.2d at 543-44). 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, 687 N.E.2d at 182.
Further, Indiana Code § 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...
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