Richard v. State

• Decision Date: 14 January 2005
• Docket Number: No. 25A05-0405-CR-243.,25A05-0405-CR-243.
• Citation: 820 N.E.2d 749
• Parties: Carl RICHARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

820 N.E.2d 749

Carl RICHARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 25A05-0405-CR-243.

Court of Appeals of Indiana.

January 14, 2005.

Matthew D. Barrett, Dale Allen, Allen Law Offices, Valparaiso, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Carl Richard ("Richard") was convicted of Class C felony dealing in marijuana in Fulton Circuit Court. Richard appeals his conviction arguing that the trial court abused its discretion when it admitted evidence seized during the search of his residence and outbuildings because the search warrant was not supported by probable cause. Concluding that the search warrant was supported by probable cause, we affirm.

Facts and Procedural History

On October 13, 2003, Rochester City Police Officer Matt Campbell ("Officer Campbell") was contacted by Patty Keim ("Keim"), a counselor at Riddle Elementary School. Keim told Officer Campbell that she had been approached by a student, C.R., who told Keim that she had discovered marijuana on her father's property where she was living. Tr. p. 25. Officer Campbell proceeded to the school where he met with Keim, the school principal, and C.R.

As a result of his conversation with eight-year-old C.R., on that same day, Officer Campbell applied for a search warrant and submitted a probable cause affidavit, which provides in pertinent part:

Matt Campbell, being first duly sworn, upon his oath says the following:

1. That he is a law enforcement officer with Rochester City Police.

2. That he believes and has good cause to believe that certain things, namely marijuana and items of contraband are concealed in or upon the following described property in Fulton County, Indiana:

2183 W 500N

Rochester, IN 46975

Including House and Barns and Outbuildings

3. Said items constitute evidence of the commission of the offense of Possession of Marijuana and Possession of Paraphernalia.

4. Affiant believes there is probable cause to search based upon the following facts:

Patty Keim (Riddle School Counselor) contacted me on today's date. She stated that she was approached by a student by the name of [C.R.] and told her she had been in one her barns on Friday, October 10 after school. While in the barn she observed what she believed was marijuana. I advised Patty I would come to the school to speak with the student.

At approximately 1:00PM I went to Riddle Elementary School to speak with [C.R.], Mrs. Keim, and Mrs. Johnson (School Principal). During the interview [C.R.] again stated she had been in the barn on Friday and found what she believed was marijuana. She stated she knows what it is because she has been around it before. [C.R.] stated she was in the barn just to the east of her house with a U-shaped drive. She houses rabbits in this barn. She stated near her rabbit cages there are blue tarps and under the tarps is located several plants drying. She also stated there is a blue tub that contains camouflage bags with the same type of plant material. [C.R.] then stated that in the barn near this same barn was an upper area she gained access to by climbing a ladder. In this area she located more of the same type of plants drying.

I asked [C.R.] if they had any marijuana in the house. She stated they always had marijuana in the drawer near the stove. She stated they kept it in a white case. She then spoke of a hidden room in the basement area near the furnace room. She stated this room had bi-fold doors and then remove items from in front of the panel and then go into the dim room. She stated she had been in the room before when there were plants growing. She is not aware if there are any plants in there at this time.

Wherefore affiant requests the Court to issue a search warrant directing the search for and seizure of the above-described property.

Ex. Vol., State's Ex. 1; Appellant's App. pp. 11-12.

The warrant was issued and executed at 1:58 p.m. on October 13, 2003. During their search of the Richard property, the officers found marijuana in a kitchen drawer and master bedroom. In a "hidden room" in the basement the officers found marijuana, buckets of dirt, and plant fragments on the floor. In the barns, officers found camouflaged bags with a small quantity of marijuana inside and a barrel full of marijuana. In a second barn, they discovered a large quantity of marijuana in the loft. The net weight of the marijuana was 15.35 pounds.

On October 17, 2003, Richard was charged with two counts of Class C felony dealing in marijuana,¹ Class D felony battery, and Class A misdemeanor resisting law enforcement. On December 22, 2003, Richard filed a motion to suppress the evidence seized during the search of his house and barns. The motion was denied and Richard moved to certify the trial court's order for interlocutory appeal. The trial court denied Richard's motion to certify.

On April 6, 2004, Richard pled guilty to battery as a Class A misdemeanor and the State dismissed the resisting law enforcement charge. A bench trial commenced on that same day. The trial court found Richard guilty of both counts of Class C felony dealing in marijuana. At sentencing, the court withheld entry of judgment on one count of Class C felony dealing in marijuana and sentenced Richard to a term of six years executed on the second count of Class C felony dealing in marijuana. He was also sentenced to time served on the Class A misdemeanor battery conviction. Richard now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Richard argues that the trial court abused its discretion when it admitted the evidence seized during the search of his house and barns. "The evidentiary rulings of a trial court are afforded great deference and are reversed on appeal only upon a showing of an abuse of discretion." Reynolds v. State, 797 N.E.2d 864, 867 (Ind.Ct.App.2003). An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Pickens v. State, 764 N.E.2d 295, 297 (Ind.Ct.App.2002), trans. denied.

Richard argues that the search warrant was not supported by probable cause because the probable cause affidavit did not "contain facts sufficient enough to establish eight-year-old C.R.'s credibility and basis of knowledge." Br. of Appellant at 7. Richard also contends that the affidavit did not contain sufficient information corroborating C.R.'s hearsay statements.

Both the Fourth Amendment of the United States Constitution and Article One, Section Eleven of the Indiana Constitution demand that no search warrant be issued unless it is supported by probable cause. "Probable cause is `a fluid concept incapable of precise definition ... [that] is to be decided based on the facts of each case.'" Creekmore v. State, 800 N.E.2d 230, 233 (Ind.Ct.App.2003) (quoting Figert v. State, 686 N.E.2d 827, 830 (Ind.1997)).

In deciding 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.'" Query v. State, 745 N.E.2d 769, 771 (Ind.2001) (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. A "substantial basis" determination 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. Query, 745 N.E.2d at 771.

When a probable cause affidavit is 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) (1998). "[T]he hearsay `must exhibit some hallmarks of reliability.'" Leicht v. State, 798 N.E.2d 204, 207 (Ind.Ct.App.2003), trans. denied (quoting Jaggers v. State, 687 N.E.2d 180, 182 (Ind.1997)).

Our courts have observed that there are two categories of informants: professional informants and cooperative citizens. Clifford v. State, 474 N.E.2d 963, 969 (Ind.1985). The test for determining the reliability of each group of informant is different.²Id. Cooperative citizens who act as informants

"include[ ] victims of crime or persons who personally witness a crime. These individuals generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving crime. They are usually one-time informants and no basis exists from prior dealings to determine their reliability. Further, information of this type usually goes to past completed crimes rather than future or continuing crimes. Some jurisdictions have therefore held that informants of this type are to be considered reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informant's reliability."

Id. (quoting Pawloski v. State, 269 Ind. 350, 354, 380 N.E.2d 1230, 1232-33 (1978)). See also Frasier v. State, 794 N.E.2d 449, 457 (Ind....