Smith v. State

953 N.E.2d 651

Wayne K. SMITH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 28A05–1011–CR–704.

Court of Appeals of Indiana.

Aug. 30, 2011.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Defendant, Wayne K. Smith (Smith), appeals the trial court's denial of his motion to suppress evidence.

We affirm.

ISSUE

Smith raises three issues for our review, which we consolidate and restate as the following single issue: Whether the trial court abused its discretion when it denied his motion to suppress evidence.

FACTS AND PROCEDURAL HISTORY

On August 3, 2009, Detective Joshua Goodman (Detective Goodman) with the Linton Police Department was contacted by Indiana Conservation Officer Tom Lahay (Officer Lahay) in reference to an ongoing investigation. Officer Lahay had been receiving information about a methamphetamine operation from a confidential informant (CI),¹ whom Officer Lahay had known previously because the same CI had provided information in an earlier drug case in 2004. The CI initially met with Officer Lahay on July 25, 2009, about a train derailment in Sullivan County, which had a reward of $20,000 for information leading to an arrest. During their meeting, the CI reported that John Gould (Gould) and Dana Worth (Worth) were involved in the derailment. The CI also told Officer Lahay that Gould had planned to steal an anhydrous ammonia tank from a Co-op for the purpose of manufacturing methamphetamine and wanted to use the CI's pickup truck. The CI asked Officer Lahay if a police agency could provide him with a modified bumper that would allow the CI and Gould to steal the tank by hooking the tank to the CI's truck; however, Officer Lahay refused the CI's request and told the CI not to steal the tank. Officer Lahay was unaware of when the theft was going to occur. After the meeting, Officer Lahay installed an audio-video camera in the CI's pickup truck to record conversations between the CI and Gould.

On August 1, 2009, the CI met up with Gould, and Gould told the CI that he wanted to steal the anhydrous ammonia tank right then. They traveled to Smith's residence, where Smith provided and installed a special bumper for the CI's truck which was needed for the theft. At some point before the theft, the CI called Officer Lahay and informed him that the theft would occur that day. Officer Lahay tried to dissuade the CI, and told the CI that stealing the tank “[was] not a good idea. If you get caught you're going to jail.” (Appellant's App. p. 109). However, later that day, the CI and Gould arrived at Crop Production Service Co-op and stole a large tank of anhydrous ammonia.

After stealing the tank, the CI and Gould went to Smith's mobile home, located at R.R. 1 Box 100, Jasonville, Indiana, and pulled the trailer with the tank behind Smith's house. Next to Smith's mobile home were several junk vehicles and a semi-trailer. After dropping off the tank, Smith, the CI, and Gould picked up a red-haired man who brought with him valves that they used to drain the big tank into ten smaller tanks. The CI stated that they hid some of the smaller tanks of anhydrous ammonia in vehicles located on Smith's property. The CI also stated that Smith threatened to kill them if they left his property before the tank was emptied.

On August 2, 2009, Officer Lahay met with the CI to conduct a “debriefing” which was recorded by Officer Lahay. (Transcript p. 9). During this meeting, the CI informed Officer Lahay that the stolen tank was in a field on Smith's property and that Smith intended to destroy it. The CI also provided Smith's address and a description of Smith's home to Officer Lahay. Additionally, the CI stated that the red-haired man drove a white tuck and provided Officer Lahay with the license plate number.

The next day, Officer Lahay relayed this information to Detective Goodman. Based on the information provided by the CI and information known to Detective Goodman from previous contact on Smith's property, a search warrant was issued for Smith's residence. Upon arriving, Smith was standing in his front yard. Detective Goodman first searched Smith's person and located money and a metal container containing a white powder-like substance in a plastic corner baggie in his right pant pocket. During the search of the property, officers found the large and small anhydrous tanks, chemicals such as Coleman Camp fuel in a storage trailer next to his residence, a .22 caliber rifle in the living room behind a chair and another in the corner in the back bedroom. Additionally, the officers found several other precursors to manufacturing methamphetamine.

On August 5, 2009, the State filed an Information charging Smith with Count I, dealing in methamphetamine, a Class B felony, Ind.Code § 35–48–4–1.1(a)(1)(A); Count II, unlawful possession of a firearm by a serious violent felon, a Class B felony, I.C. § 35–47–4–5(c); Count II, possession of methamphetamine with a firearm, a Class C felony, I.C. § 35–48–4–6.1(b)(1)(B); Count IV, maintaining a common nuisance, a Class D felony, I.C. § 35–48–4–13(b)(2)(B); Count V, possession of chemical reagents or precursors with the intent to manufacture, a Class D felony, I.C. § 35–48–4–14.5(e); Count VI, receiving stolen property, a Class D felony, I.C. § 35–43–4–2(b); Count VII, transport of anhydrous ammonia, a Class A misdemeanor, I.C. § 22–11–20–6(b); Count VIII, possession of marijuana, a Class A misdemeanor, I.C. § 35–48–4–11(a)(1); and Count IX, possession of paraphernalia, a Class A misdemeanor, I.C. § 35–48–4–8.3(a), (b).

On August 6, 2010, Smith filed a motion to suppress evidence from the search, alleging violations of both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. On August 10, 2010, a hearing was held. On September 9, 2010, the trial court denied Smith's motion. On October 18, 2010, the trial court certified the September 9th Order for interlocutory appeal. Then, on January 7, 2011, this court accepted the interlocutory appeal.

Smith now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its ruling only where it is shown that the trial court abused its discretion. Ware v. State, 782 N.E.2d 478, 481 (Ind.Ct.App.2003). We review the denial of a motion to suppress similar to claims challenging the sufficiency of the evidence. Washington v. State, 922 N.E.2d 109, 111 (Ind.Ct.App.2010). We do not reweigh the evidence or reassess the credibility of witnesses, but consider the evidence most favorable to the trial court's ruling and any uncontested evidence favorable to the defendant. Id. We will affirm if there is substantial evidence of probative value to support the trial court's decision. Id.

II. Search Warrant

Smith maintains that the search warrant was defective under the Fourth Amendment of the United States Constitution and Article 1, Sec. 11 of the Indiana Constitution. Specifically, Smith argues that (1) the search warrant affidavit was executed by a police officer who had no contact with the CI, whose credibility was critical to the warrant application, (2) the search warrant's probable cause affidavit contained stale information and multiple levels of hearsay which did not meet the requirements of I.C. § 35–33–5–2(b), and (3) the warrant was obtained through illegal conduct by the CI.

A. Fourth Amendment

The Fourth Amendment to the United States Constitution requires probable cause for the issuance of a search warrant. Mehring v. State, 884 N.E.2d 371, 376 (Ind.Ct.App.2008), reh'g denied. 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.” 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. 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.” Query v. State, 745 N.E.2d 769, 771 (Ind.2001).

Article 1, Section 11 of the Indiana Constitution contains nearly identical language as the Fourth Amendment. These constitutional principles are codified in I.C. § 35–33–5–2, which details the information to be contained in an affidavit for a search warrant. Where a warrant is based upon hearsay information, 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.

The trustworthiness of hearsay for the purpose 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 demonstrated, or (4) the informant predicts conduct or activity by the suspect...