Soliz v. State
| Decision Date | 17 August 2005 |
| Docket Number | No. 20A04-0412-CR-696.,20A04-0412-CR-696. |
| Parties | Daniel B. SOLIZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, for Appellant.
Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, for Appellee.
Appellant-defendant Daniel B. Soliz appeals his conviction for Possession of Methamphetamine in Excess of Three Grams with Intent to Deliver,1 a class A felony, raising three allegations of error. Specifically, Soliz contends that the evidence seized from his residence was improperly admitted into evidence because there was no probable cause for the issuance of the search warrant, that the jury verdict should have been set aside, and that he was improperly sentenced. Finding no error, we affirm the judgment of the trial court.
On September 15, 2002, Goshen Police Officer Ward Branson submitted an affidavit for the search of Soliz's residence at 25632 Thelmadale Drive in Elkhart County for evidence related to the commission of possession and distribution of methamphetamine and/or cocaine. The probable cause section of the warrant was based partly on an informant's report that led to the traffic stop of a truck whose passenger informed police officers that Soliz had sold methamphetamine to her on numerous occasions since December 2001.
The affidavit stated that Sergeant Shawn Turner of the Goshen Police Department had received information from an individual who had supplied reliable and accurate information in the past to him and the Goshen Drug Unit regarding prior narcotics investigations. The information asserted that a red Ford pick-up truck was traveling to Goshen on State Road 15 on September 15, 2002, and that the occupants possessed a quantity of methamphetamine.
At some point, the officers stopped the truck that the informant had described for a loud or faulty exhaust system. A male was driving the truck, and Rose Baker was riding as a passenger. When the officers searched the truck after a K-9 unit had alerted to the presence of a controlled substance, they found a hubcap containing methamphetamine. The two were then arrested, separated and transported to the Goshen Police Department for further questioning. Field tests were conducted on the substance that had been seized which tested positive for methamphetamine. During questioning, Baker implicated Soliz as the source for the methamphetamine. She stated that Soliz formerly lived on Cassopolis Street in Elkhart but currently lived on Thelmadale Drive close to a lake. The driver of the truck informed the police officers when he was questioned separately that Baker had instructed him to drive her to a residence near Simonton Lake in Elkhart County. Baker also related to the police that she had her friend drive to Soliz's residence on Thelmadale Drive on September 14, 2002, to buy some methamphetamine. Baker was able to correctly identify Soliz's residence, his vehicle, and his girlfriend's car that was parked at the house. Baker also informed the officers that she had been purchasing various quantities of methamphetamine from Soliz on a regular basis beginning in December 2001.
On September 15, 2002, Baker placed a police-monitored telephone call to Soliz at his residence, where Soliz agreed to sell her an ounce of methamphetamine. Soliz told Baker that she should bring him the money that she owed him from the previous day's transaction. Based upon the above information, the trial court issued the search warrant and the police officers executed it later that day when Soliz, his sister, his girlfriend, and a child were at the residence. Soliz was taken into custody at the time, and he was carrying $646 in cash. Officers Turner and Keith Miller seized large amounts of paraphernalia from an upstairs bedroom including glass smoking pipes, syringes and balloons. Officer Miller also found a white, powdery rock-like substance that he believed to be methamphetamine, as well as some plant-like material that he thought was marijuana. The officers found ledgers containing various names as well as $2,700 in cash and a small electronic scale. The white substance found in the bedroom in a clear plastic bag was found to contain 102.52 grams of methamphetamine.
Soliz subsequently moved to suppress the evidence that was seized from his residence, alleging that insufficient probable cause existed for the issuance of the warrant because the credibility of the informant had not been sufficiently demonstrated. The trial court denied Soliz's motion on the basis that the informant had provided sufficient information to establish probable cause.
On the first day of the trial, Soliz was late for court. As a result, the trial court advised that "we're going to start at 8:30 in the morning whether you're here or not." Tr. p. 2. On the second day, Soliz failed to appear, and the trial proceeded in his absence. In the end, Soliz was found guilty as charged.
Inasmuch as the trial proceeded in his absence, Soliz moved to set aside the verdict at the beginning of his sentencing hearing. However, the trial court noted that Soliz had filed a written acknowledgement of the trial setting where he affirmed under oath his obligation to appear as well as his compliance and cooperation with all requirements of the court to be present at the proceedings. The trial court also reminded Soliz of the warning that he had issued when Soliz was late on the first day of trial. The trial court then denied Soliz's motion to set aside the verdict. The matter proceeded to sentencing, and the trial court found nine aggravating factors and two mitigating circumstances. It was then determined that the aggravators outweighed the mitigators, and an enhanced sentence of forty-five years was imposed. Soliz now appeals.
Soliz first contends that his conviction must be reversed because there was no probable cause supporting the issuance of the warrant to search his residence. In essence, Soliz maintains that the warrant was improperly issued because the affidavit was based solely upon Baker's statements and her reliability as an informant had not been established.
We first note that in deciding whether a search warrant should be issued, "[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." Query v. State, 745 N.E.2d 769, 771 (Ind.2001). The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. Bowles v. State, 820 N.E.2d 739, 747 (Ind.Ct.App.2005), trans. denied. We will give significant deference to the magistrate's determination and focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Best v. State, 821 N.E.2d 419, 426 (Ind.Ct.App.2005), trans. denied.
Next, we note that Indiana Code section 35-33-5-2 provides in relevant part that:
(a) Except as provided in section 8 of this chapter, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) the things as are to be searched for are there concealed; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.
(b) When 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.
(Emphasis added).
With respect to the above, our Supreme Court has determined that uncorroborated hearsay from a source whose credibility is itself unknown cannot support the finding of probable cause to issue a search warrant. Jaggers v. State, 687 N.E.2d 180, 182 (Ind.1997) (citing Illinois v. Gates, 462 U.S. 213, 227, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The court in Gates indicated that the trustworthiness of hearsay for purposes of proving probable cause 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 shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Gates, 462 U.S. at 227, 103 S.Ct. 2317. When based on hearsay, a probable cause affidavit must establish the credibility of the informant and contain information establishing that the totality of the circumstances corroborates such evidence. Cutter v. State, 646 N.E.2d 704, 713 (Ind.Ct.App.1995), trans. denied. In essence, the hearsay must exhibit some hallmarks of reliability. Richard v. State, 820 N.E.2d 749, 753 (Ind.Ct.App.2005), trans. denied.
Our courts have also 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. In particular, cooperative citizens who act as informants
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