State v. Brown
| Decision Date | 17 January 2006 |
| Docket Number | No. 63A04-0506-CR-302.,63A04-0506-CR-302. |
| Citation | 840 N.E.2d 411 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Wesley J. BROWN, Appellee-Defendant. |
| Court | Indiana Supreme Court |
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellant.
Michael C. Keating, Keating, Bumb, Vowels & LaPlante, Evansville, for Appellee.
The State appeals from the trial court's grant of Wesley Brown's motion to suppress evidence. The State presents a single issue for our review, namely, whether the trial court erred when it suppressed evidence seized as a result of a warrant unsupported by sworn testimony.1
We affirm.2
On September 18, 2003, Officer Lisa Miller of the Jasper Police Department appeared before the trial court to obtain a search warrant for Brown's residence. The court heard probable cause testimony from Officer Miller and issued the warrant. The transcript of the recorded hearing reveals that Officer Miller was not under oath when she testified.3
Approximately three hours after the trial court issued the warrant, Jasper police officers, including Officer Miller, served the warrant and searched Brown's residence. They discovered methamphetamine oil, precursors to the manufacture of methamphetamine, evidence of a methamphetamine lab, and marijuana. The officers arrested Brown, and the State charged him with Dealing in Methamphetamine, as a Class B felony; Possession of Precursors with Intent to Manufacture Methamphetamine, as a Class D felony; Possession of Methamphetamine, as a Class D felony; and Possession of Marijuana, as a Class A misdemeanor.
On February 7, 2005, Brown filed a motion to suppress the evidence seized from his home, alleging that the search warrant was invalid because Officer Miller was not sworn when she gave probable cause testimony. At the suppression hearing, the prosecutor conceded that Officer Miller had not been under oath when she testified. The trial court granted Brown's motion to suppress. The State now appeals.
When the State appeals from the trial court's grant of a defendant's motion to suppress evidence, the State is appealing from a negative judgment. State v. Davis, 770 N.E.2d 338, 340 (Ind.Ct.App.2002). Consequently, the State has the burden of demonstrating to us that the evidence is without conflict and that the evidence and all reasonable inferences therefrom lead to the conclusion opposite that reached by the trial court. Id. During our review, we consider only the evidence most favorable to the judgment, and we neither reweigh the evidence nor judge the credibility of the witnesses. Id.
The State contends that the trial court erred when it granted Brown's motion to suppress the evidence seized from his residence. Although the State concedes that the warrant was defective, it maintains that the good faith exception to the exclusionary rule renders the search of Brown's residence valid and the evidence seized during that search admissible. Thus, the dispositive issue is whether the good faith exception in the Indiana warrant statute applies where, as here, an officer's probable cause testimony was unsworn. We hold that it does not.
While the Fourth Amendment to the United States Constitution contains the general warrant requirement, we are bound to decide the present case on non-constitutional grounds, if possible. Our Supreme Court has repeatedly held that it "will not decide constitutional questions when the case under consideration can be concluded upon other grounds[.]" State v. Pearson Constr. Co., 236 Ind. 602, 141 N.E.2d 448, 450 (1957). "It is long established that a constitutional question unnecessary to a determination of the merits should not be decided." Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind.1986). "Both state and federal courts traditionally foreswear deciding a constitutional question unless no non-constitutional grounds present themselves for resolving the case under consideration." Citizens Nat'l Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241 (Ind.1996). Thus, because the Indiana General Assembly has codified the requirements to obtain a warrant, we begin our analysis with a review of the Indiana warrant statute.
The Indiana Code states, "A court may issue warrants only upon probable cause, supported by oath or affirmation. . . ." Ind.Code § 35-33-5-1(a) (emphasis added). Section 35-33-5-2 details the affidavit requirement, and Section 35-33-5-8 states the exception to the affidavit requirement. In particular, Section 8 provides:
A judge may issue a search or arrest warrant without [an] affidavit . . . if the judge receives sworn testimony of the same facts required for an affidavit:
(1) In a nonadversarial, recorded hearing before the judge;
(2) Orally by telephone or radio; or
(3) In writing by facsimile transmission (FAX).
Ind.Code § 35-33-5-8(a) (emphasis added). In the present case, the State concedes that Officer Miller did not testify under oath and, therefore, that the statute's sworn testimony requirement was not satisfied. But the State maintains that the trial court erred when it suppressed the evidence because the officers reasonably believed that the warrant was valid.
In 1983, one year before the United States Supreme Court's landmark opinion in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), our legislature codified a good faith exception to the exclusionary rule.4 That statute provides, in pertinent part:
(a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith.
(b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith if:
(1) It is obtained pursuant to:
(A) A search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid.
Ind.Code § 35-37-4-5 (emphasis added). Although the State mentions Indiana Code Section 35-37-4-5, it concentrates its appellate argument on the Leon good faith exception. We will, however, first address the good faith exception enacted by the Indiana General Assembly before Leon.
The search warrant in this case was not properly issued because, as previously discussed, Officer Miller did not provide sworn probable cause testimony. Nevertheless, the State maintains that the lack of an oath or affirmation to support Officer Miller's testimony should not result in suppression of the evidence seized because the officers who executed the warrant reasonably believed that the warrant was valid. See Ind.Code § 35-37-4-5(b)(1)(A). We cannot agree. In order to satisfy the good faith exception, the warrant must first be "properly issued." See id. And a warrant is not properly issued unless it is supported by oath or affirmation. See Ind.Code § 35-33-5-1(a).
The defect that troubles the warrant in this case is unlike the non-material warrant defect we recently confronted in Dost v. State, 812 N.E.2d 232 (2005), trans. denied. In Dost, the warrant included an inexact description of the defendant's residence, and it did not contain Dost's address. But the probable cause affidavit that accompanied the warrant did include the proper address. This court concluded:
The inexact description of the residence included in the warrant does not invalidate the warrant because [the officer], who provided the description, knew the exact location of the residence and led the officers to the residence to serve the search warrant. In addition, the exact address of the residence was contained in the affidavit, and the affiant . . . participated in the execution of the search warrant by, among other things, serving the warrant on Dost.
Dost, 812 N.E.2d at 236. Here, however, there is no cure for Officer Miller's failure to present sworn testimony.
Our opinion in State v. Davis, 770 N.E.2d 338 (Ind.Ct.App.2002), is on point. In Davis, we held that the good faith exception did not apply where a warrant conversation was not recorded, and therefore, was not properly issued, as required by Indiana Code Section 35-33-5-8(b). Id. at 342-43. In that case, the lack of a recording "prevented independent verification of several statutory requirements including whether (1) [the officer] recited and verified the facts under penalty of perjury, (2) [the officer] read to the judge from the warrant form, and (3) whether the judge directed [the officer] to modify the warrant." Davis, 770 N.E.2d at 343 (emphasis added). And while the obvious defect in the present case, the lack of sworn testimony, was not deliberate, it was substantial. See id.
Nevertheless, the State asks, in effect, that we ignore the plain meaning of the words "oath or affirmation" and "sworn testimony" in the warrant statute. See Ind.Code § 35-33-5-1; Ind.Code § 35-33-5-8. An appellate court must construe a statute according to its plain meaning. Township v. Hunnicutt, 549 N.E.2d 1051, 1054 (Ind.Ct.App.1990). Words and phrases shall be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. Id. This is the cardinal rule of statutory construction. See Ind.Code § 1-1-4-1 ()
If we were to disregard the oath or affirmation requirement it would open wide the door to the issuance of unlawful warrants. Thus, we must decline the...
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