Query v. State
| Decision Date | 11 April 2001 |
| Docket Number | No. 49S02-0008-CR-00502.,49S02-0008-CR-00502. |
| Citation | 745 N.E.2d 769 |
| Parties | Louis David QUERY, Appellant (Defendant Below), v. STATE of Indiana, Appellees (Plaintiff Below). |
| Court | Indiana Supreme Court |
Terry R. Curry, Indianapolis, IN, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Andrew Hedges, Thomas D. Perkins, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION FOR TRANSFER
This case deals with the circumstances under which the State must obtain a new search warrant if information undermining the probable cause in that warrant is discovered by the police after the warrant has been granted but before it has been executed. We hold that where the State learns that a material fact establishing the probable cause underlying a search warrant is incorrect, the State is obliged to inform the issuing magistrate of the new facts and, if it fails to do so, the warrant is per se invalid. Information is material if it might affect either the issuance of the warrant, or the scope of the warrant. We find this case presents an extremely unusual example of an immaterial change. Although the new information undermined the crime suggested by the information supplied to the magistrate, it also provided probable cause for a second crime, and, if a second search warrant had been issued, the police would have been authorized to search the same location for virtually identical items.
Greenwood police officer Matthew Fillenwarth worked with a confidential informant on October 31, 1998, to arrange a purchase of methamphetamine from Louis David Query. The informant was supervised by Fillenwarth as he purchased a white powdery substance from Query. Fillenwarth conducted two field tests to determine the nature of the substance. The first test was negative for controlled substances and the second indicated that the substance contained methamphetamine.
Based on Fillenwarth's affidavit of probable cause, a magistrate issued a search warrant for Query's apartment on November 2, 1998. On November 3, Fillenwarth learned that a laboratory test had determined that the substance purchased from Query did not contain any controlled substance. That day, Fillenwarth consulted with a Johnson County deputy prosecutor and was assured that the warrant was still good. On November 4, the warrant was executed and eighty-one grams of uncut cocaine were found in Query's apartment. No methamphetamine was found.
Query was charged with dealing in cocaine and possession of cocaine. Query moved for suppression of the cocaine. The trial court denied the motion, reasoning that, although the issuing magistrate should have been informed that some of the information contained within the probable cause affidavit was incorrect, the fact that the officer failed to do so did not automatically invalidate the warrant. Instead, the trial court stated that it must look to the effect that the inclusion of the lab report would have had on the existence of probable cause. The trial court held that the information in the lab report would have provided probable cause that Query was engaged in dealing in a look-alike substance, a Class D felony, and therefore "[i]t would be reasonable to believe that there would be evidence of that crime located in the apartment, such as, powder similar to the powder represented to be methamphetamine, similar packaging materials, the supplied currency."
On appeal, the Court of Appeals noted that it is the issuing magistrate's role to determine whether or how new information affects the finding of probable cause and the validity of a warrant. Because the magistrate here did not have access to "full information," the court held that the search warrant lacked a sufficient showing of probable cause that Query was engaged in dealing in a look-alike substance. Query v. State, 725 N.E.2d 129, 132 (Ind. Ct.App.2000). The court also held that the "good faith exception" did not apply to these circumstances. Id.
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." 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. at 238-39, 103 S.Ct. 2317. It is clear that a substantial 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. Houser v. State, 678 N.E.2d 95, 99 (Ind.1997). A "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 98. In this review, we consider only the evidence presented to the issuing magistrate and not post hoc justifications for the search. Seltzer v. State, 489 N.E.2d 939, 941 (Ind. 1986).
The Fourth Amendment to the United States Constitution reads:
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 text of Article I, Section 11 of the Indiana Constitution contains nearly identical language. These principles are codified in Indiana Code section 35-33-5-2, which details the information to be contained in an affidavit for a search warrant. Specifically, the statute provides that the affidavit must describe with particularity the "house or place to be searched and the things to be searched for ... alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that ... the things as are to be searched for are there concealed...." Ind.Code § 35-33-5-2 (1998).
Query argues that the cocaine discovered in the November 4 search must be suppressed because the police were required to disclose that the substance purchased by the confidential informant was not methamphetamine. Query contends that where the information establishing probable cause is found to be incorrect after the search warrant is issued but before it is executed, and the magistrate is not informed, the search warrant is per se invalid.
We find no case in this state or in the federal courts directly on point. The Second Circuit has held that where the police discover that a fact underlying a magistrate's determination of probable cause for issuing a search warrant is materially different than originally thought, it is the magistrate, not the executing officers, who must determine whether probable cause still exists. Under this view, with which we agree, the magistrate must be made aware of any "material" new or correcting information. United States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir.1984). The typical formulation of "material" facts is that they cast doubt on the existence of probable cause. Id. at 895 (citing United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980)). The new information and the information in the affidavit are to be considered as a whole. Id. (citing United States v. Kunkler, 679 F.2d 187, 190-91 (9th Cir.1982)); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980).
In Marin-Buitrago, the new information altered neither the crime alleged nor the scope or nature of the resulting search. In this case, the correcting information obliterated probable cause for a search for evidence or fruits of a methamphetamine sale, but simultaneously created probable cause for a search for evidence or fruits of a sale of a look-alike drug, a Class D felony. This is not a trivial change. We think, however, it is not a "material" one because the old information justified a warrant for the same location and virtually the same items. In the end, the officers did exactly what they would have done anyway to execute a warrant based on the new information. Under the original search warrant, the police were empowered to search for "[m]ethamphetamine, paraphernalia used to deal or ingest methamphetamine, any documents, notes, records, scales, money or any indicia of use of or dealing in methamphetamine." Methamphetamine, a white powder, is identifiable only through chemical analysis. To the naked eye, a white powder that actually is methamphetamine and a white powder that is not are identical. Because the nature and scope of a search for methamphetamine is identical to the nature and scope of a search for a look-alike, the correcting information in this case does not constitute a "material" change.
It is important to note, however, that both the validity and scope of the search must be...
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