Shell v. State Of Ind.
| Decision Date | 26 May 2010 |
| Docket Number | No. 48A02-0904-CR-325.,48A02-0904-CR-325. |
| Citation | 927 N.E.2d 413 |
| Parties | Donald T. SHELL, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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David W. Stone IV, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Donald T. Shell (“Shell”) was convicted in Madison Superior Court of Class B felony possession of a firearm by a serious violent felon, Class D felony possession of marijuana, Class D felony maintaining a common nuisance, and two counts of Class D felony possession of a controlled substance, and sentenced to an aggregate term of eighteen years. Shell appeals and presents three issues, which we restate as:
We affirm.
For approximately a month and a half during the summer of 2008, Shell lived with his girlfriend Elizabeth Bair (“Bair”) in Anderson, Indiana. Shell had moved his clothes and personal belongings to Bair's residence and spent every night there. In August of 2008, Anderson Police Detective Kevin Early (“Early”) was told by a confidential informant (“CI”) that Shell sold cocaine and marijuana at the residence he shared with Bair. Early had used information from the CI five to seven times in the past, and the CI had given Early accurate information. As a result of the CI's information, two other suspects had been convicted and charges were pending on a third suspect.
Based on the CI's information in this case, Early drove past the residence over ten times and saw a black vehicle used by Shell parked in the driveway. Early attempted to collect trash from the residence on two consecutive weeks, but there was no trash set out on the nights prior to the scheduled trash collection day. Finally, on the third week after Early received the information from the CI, Early was able to collect trash from the front of the residence on the night prior to the scheduled trash collection. In the two trash bags he took, Early found plant material and stems that tested positive for marijuana. He also found several plastic baggies with cut-out corners, and found one cut-out corner containing a white residue which tested positive for cocaine. The trash also contained a pill bottle with Bair's name.
On September 3, 2008, Early sought and obtained a warrant to search the residence based on the evidence discovered during the trash search. Early then went to the residence and waited for other police officers to arrive to assist. Before the other officers arrived, Early saw Shell and Bair sitting on the front porch of the residence, but they went inside shortly before the other officers arrived. Once the other officers had arrived, the police knocked on the front door loudly, announcing that they had a warrant to search the residence. Neither Shell nor Bair answered the door, so the police had to kick in the door to enter.
Eventually, the police located Shell and Bair in a locked bedroom and had to force their way into the room. Shell was breathing heavily and sweating, yet claimed to have been asleep. The police also noticed that the toilet was still running and that there was a wet plastic bag in a nearby trash can. When the police searched Shell and Bair, they found $634 in cash on Shell and found marijuana hidden in Bair's bra. Inside the room, the police found a digital scale, which contained both marijuana and cocaine residue, a box of plastic baggies, and a knife. In the bedroom closet, which contained mostly men's clothing, the police found marijuana, an unlabeled pill bottle, and two handguns. Under the bed, the police found two plastic bags with a white, powdery substance. In the living room, the police found a container with a rock-like substance. Subsequent testing of the substances revealed a total of 42.2 grams of marijuana and 8.48 grams of cocaine discovered during the search of the residence. The pills found at the house were later identified as Xanax and Oxycodone.
The State ultimately charged Shell as follows: Count I, Class A felony dealing in cocaine; Count II, Class D felony possession of marijuana; Count III, Class D felony possession of a controlled substance, specifically Oxycontin; Count IV, Class D felony possession of a controlled substance, specifically Xanax (alprazolam); Count V, Class D felony maintaining a common nuisance; and Class VI, Class B felony possession of a firearm by a serious violent felon.1
After Bair was arrested and put in jail, another inmate told her that Shell wanted to speak with her. In the other inmate's cell, Bair could hear Shell, apparently from another cell. In this arrangement, Shell told Bair to file a report claiming that the police had planted drugs at her house and that Detective Early was involved in a romantic affair and took Xanax. Shell further told Bair to file a report with the FBI complaining about the local drug task force. Shell then told Bair to inform the police that he did not live at her residence, that she sold marijuana, and that her father had given her the handguns found during the search. Shell also told Bair to try to determine who the CI was and to speak with witnesses to insure that they would give favorable statements to the police. Shell told Bair that when she was released from jail, she should go back to her residence and look for any marijuana that the police did not find during the search and to flush it down the toilet. Shell finally told Bair that if she told “anyone anything,” he would kill her. Tr. p. 157. When Bair was released from jail, she did dispose of the marijuana as instructed. Shell subsequently sent Bair letters telling her not to “roll on him.” Tr. p. 159.
On November 7, 2008, Shell filed a motion to suppress the evidence discovered during the execution of the search warrant claiming that the search warrant was based on evidence found during an improper trash pull. The trial court held a hearing on this motion on December 1, 2008. At the hearing, Shell's counsel asked Early to identify the CI, and the State objected. Early explained that he did not want to disclose the CI's identity because, at the time of the hearing, he was still working with the CI. The trial court denied Shell's request for the CI's identity. On December 8, 2008, the trial court denied Shell's motion to suppress.
A jury trial commenced on February 10, 2009. At trial, Shell objected to the admission of the evidence found during the execution of the search warrant, but the trial court overruled his objections. On February 12, 2009, the jury found Shell guilty on Counts II through VI but was unable to reach a verdict on Count I, and the trial court declared a mistrial as to that count. At a sentencing hearing held on March 16, 2009, the trial court sentenced Shell to two years on Counts II through V and eighteen years on Count VI and ordered all sentences to be served concurrently with each other. Shell now appeals.
Shell claims that the trial court erred in denying his motion to suppress the evidence found during the execution of the search warrant. However, because Shell is appealing following his conviction and is not appealing the trial court's interlocutory order denying his motion to suppress, the question is properly framed as whether the trial court erred in the admission of the evidence in question. See Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). But whether the challenge is made by a pre-trial motion to suppress or by trial objection, our standard of review of rulings on the admissibility of evidence is essentially the same. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002) trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling, but we also consider the uncontested evidence favorable to the defendant. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005) trans. denied.
Shell claims that the search warrant was improper because it was based on stale information. As a general rule, stale information will not support a finding of probable cause. Mehring v. State, 884 N.E.2d 371, 377 (Ind.Ct.App.2008). The exact moment when information becomes stale cannot be precisely determined. Id. Although the age of the information supporting an application for a warrant can be a critical factor when determining the existence of probable cause, our courts have not established a bright-line rule regarding the amount of time that may elapse between obtaining the facts upon which the search warrant is based and the issuance of the warrant. Id. Probable cause is not determined by merely counting the number of days between the occurrence of the facts relied upon and the warrant's issuance. Id. Instead, whether the information is tainted by staleness must be determined by the facts and circumstances of each particular case. Id. Stale information will only give rise to a mere suspicion, especially when the items to be obtained are easily concealed and moved. Id.
Here, Shell claims that the search warrant was based on stale information because, by the time the trash search was conducted and the search warrant issued, the information given by the CI was approximately three weeks old. In support of his argument, Shell cites Ashley v. State, 251 Ind. 359, 241 N.E.2d 264 (1968). In that case, the court held that a search warrant was defective where the affidavit on which it was based established probable cause that marijuana was at a residence on October 3,...
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