FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOSHUA E. LEICHT STEVE CARTER
Leicht Law Office Attorney General of Indiana
Kokomo, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT LEICHT, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-0210-CR-840
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Stephen M. Jessup, Judge
Cause No. 34D02-0204-FC-145
October 7, 2003
OPINION - FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Robert Leicht brings this interlocutory appeal of the trial court's
denial of his motion to suppress.
We affirm.
ISSUE
Whether the trial court erred in denying Leicht's motion to suppress
evidence because the State failed to establish probable cause to
support the issuance of the search warrant.
FACTS
On February 12, 2002, two detectives from the Kokomo Police
Department went to the Carpenter residence to investigate the possible
involvement of Lindsay Carpenter with drugs. They knocked, Lindsay
answered the door, and the detectives smelled the odor of burnt marijuana.
Lindsay's mother, Bonnie Carpenter, then came to the door and allowed the
detectives to enter her home. Lindsay told them she had been smoking
marijuana. Detective Brown asked Bonnie if she would allow a search of the
residence, and Bonnie declined. The detectives obtained a search warrant
and returned.
At that point, Bonnie directed Detective Brown to "a sizable quantity
of marijuana" in her bedroom as well as "over eight hundred dollars" in
cash and drug paraphernalia. (App. 39). Bonnie was then questioned by the
detectives at her residence and at the police station. At the station, she
also provided a sworn statement.
Detective Rood, who was present for the questioning of Bonnie at the
police station, prepared an affidavit for probable cause to obtain a search
warrant. The affidavit specified that two officers had smelled the odor of
burnt marijuana at the Carpenter residence and obtained a search warrant
for the residence. The affidavit also contained the following facts. When
the warrant was served, Bonnie "advised that she did have marijuana in the
residence and money related to the sale of illegal drugs"; gave them "a bag
containing individually wrapped plastic bags" that appeared to contain
marijuana; and "stated she wanted to cooperate and provide information to
us about the person she gets the marijuana from." (App. 66). Bonnie
identified Leicht as the person who provided her the marijuana to sell, and
she provided the location and description of his residence. Bonnie
described an extensive history of her dealings with Leicht, from initially
buying it by the ounce to "getting the marijuana by the pound and selling
it for [Leicht]," with details about two levels of quantity and
corresponding prices – $900 or $6,100 per pound. (App. 67). Bonnie
admitted she had even delivered marijuana from Leicht to a Derrick Hill
"the night he was killed." Id. Bonnie described being present at Leicht's
residence "approximately four months ago" and witnessing the delivery of
"crates" that contained twenty-pound "bricks" of marijuana, and how she
"made two thousand dollars from just delivering" one of the bricks. Id.
Bonnie explained that when she was "close to being out" of marijuana to
sell, she would "call [Leicht] and he would either bring her a pound of
marijuana to sale [sic] or she would go to his residence and get it," and
that just two days prior to her encounter with the police, Leicht had
brought her "one pound of marijuana to sell." Id.
The trial court found "that probable cause [was] stated" in the
affidavit and issued a search warrant for Leicht's residence and property
that same day, February 12, 2002. (App. 60). On April 26, 2002, the State
filed a probable cause affidavit[1] for a warrant to arrest Leicht on
charges that he had committed the offenses of conspiracy to commit dealing
in marijuana; aiding, inducing or causing dealing in marijuana; and dealing
in marijuana, all class C felonies. After a hearing, the trial court found
probable cause to charge Leicht and issued a warrant for his arrest.
On July 11, 2002, Leicht filed a motion to suppress the evidence
"seized from [his] residence on February 12, 2002," alleging that the
probable cause affidavit submitted for that search warrant "consisted
almost entirely of uncorroborated hearsay from" Bonnie and "failed to
establish the existence of probable cause sufficient to warrant the
issuance of the search warrant." (App. 27). The trial court heard
evidence at a hearing on September 4, 2002. Bonnie testified that after
the detectives returned to her residence with the search warrant, she gave
them a sizeable quantity of marijuana from the safe in her bedroom and some
cash. She further testified that during her questioning by the police, she
was simply "talked to," there "was no pressure," she did not feel
threatened, and her testimony to them was "freely and voluntarily given."
(App. 40, 42). Detective Rood testified of his personal knowledge that
Derrick Hill, a recent homicide victim, had been "a major dealer" who had
possessed several pounds of marijuana near the time of his death. (App.
42).
The trial court concluded that the affidavit established probable
cause because it gave the "basis of [Bonnie's] knowledge," in that Bonnie
had been found in possession of a substantial quantity of marijuana, "was
trafficking with [Leicht]," "gave statements against penal interest in
connection with sale to the man who was eventually murdered," "told about
past conduct which the police did not have evidence on or did not have
evidence in hand for which she could be investigated and possibly charged,"
and that she had "an ongoing relationship" with Leicht. (App. 61).
DECISION
The federal and state constitutions guarantee that a court will not
issue a search warrant without probable cause. Overstreet v. State, 783
N.E.2d 1140, 1157 (Ind. 2003) (citing U.S. Const. Amend IV; Ind. Const.
Art. I, § 11). Probable cause to search the premises is established when a
sufficient basis of fact exists to permit a reasonably prudent person to
believe that a search of those premises will uncover evidence of a crime.
Id. (citing Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1989)). The
decision to issue the warrant should be based on the facts stated in the
affidavit and the rational and reasonable inferences drawn therefrom. Id.
The duty of a reviewing court is "simply to ensure that the magistrate had
a 'substantial basis' for concluding that probable cause existed." Id.
(citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983), and Figert v.
State, 686 N.E.2d 827, 830 (Ind. 1997)). "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. Id.
Indiana Code § 35-33-5-2(b) has effectively codified Fourth Amendment
doctrine on the use of informants to establish probable cause. Jaggers v.
State, 687 N.E.2d 180, 183 (Ind. 1997). Specifically, the statute provides
that when based on hearsay, the probable cause 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.
I.C. § 35-33-5-2(b). Thus, the hearsay "must exhibit some hallmarks of
reliability." Jaggers, 687 N.E.2d at 182.
The trustworthiness of hearsay for purposes of proving probable cause
can be established in a number of ways, including the showing of "some
basis for the informant's knowledge." Id. (citing Gates, 462 U.S. at 232).
The hearsay statements of Bonnie in the probable cause affidavit showed
that her knowledge was based on her personal involvement in selling
marijuana provided by Leicht. The trial court found that her statements
indicated a long-term relationship with Leicht, that Leicht provided
marijuana to her and allowed her to pay for it after she sold it to others,
and that the price she would pay Leicht for the marijuana varied based upon
its quality. As the trial court noted, this indicated "some basis for"
Bonnie's knowledge, which would tend to show the trustworthiness of the
statements. See Jaggers, 687 N.E.2d at 182.
Further, the amount of detail provided by the informant may allow the
magistrate to "reasonably infer that the informant had gained his
information in a reliable way." Spinelli v. U.S., 393 U.S. 410, 417
(1969). There is a great deal of detail in the information cited in the
affidavit as having been provided by Bonnie. Specifically, statements
indicate the price and payment arrangements between her and Leicht, their
delivery arrangements, the date and time of his most recent delivery to
her, how she originally met Leicht and the frequency of their contact, and
the detailed account of the truck's delivery of crates containing bricks of
marijuana to Leicht's residence.
Further, many of the statements that the affidavit attributes to
Bonnie were statements against interest. A statement against the
declarant's penal interest is one that so far tends to subject the
declarant to civil or criminal liability that a reasonable person in the
declarant's position would not have made the statement unless believing it
to be true. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997) (citing Ind.
Evidence Rule 804(b)).
In Nash v. State, 433 N.E.2d 807, 810 (Ind. Ct. App. 1982), we held
that statements against the declarant's penal interest "constitute an
indicia of credibility which may be used in ascertaining the credibility of
an informant whose information provides the basis of an affidavit" for a
search warrant. There, the declarant's statement "admitted the commission
of a burglary," and "the fact of the burglary was corroborated by the
victim." Id. We found this to be "sufficient foundation to establish" the
declarant's credibility. Id. Similarly, in Phillips v. State, 514 N.E.2d
1073, 1075-76 (Ind. 1987), the fact that the declarant "implicated himself
in the crimes and gave information that could have been provided only by
one who was involved in the crimes" was sufficient to establish the
credibility of the declarant whose statements were used in the probable
cause affidavit for a search warrant.
Subsequent to Phillips, our supreme court squarely held that
"[d]eclarations against penal interest can furnish sufficient basis for
establishing the credibility of an informant within the meaning of Ind.
Code § 35-33-5-2(b)(1)." Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997).
In Houser, because the declarant was incriminated by his statements that
"suggested a conspiracy between" the declarant and the subject of the
search warrant, the declarant was found to be "a credible source." Id.
Just as in Nash, Phillips, and Houser, Bonnie implicated herself in
the commission of dealing marijuana as well as conspiracy to deal marijuana
offenses. Under the law, this established a recognized basis for
concluding that Bonnie was a credible source and that the information she
provided was reliable.
With appropriate deference being given to the judge who issued the
search warrant, we conclude that there was a substantial basis upon which
to conclude that there was probable cause to believe that evidence of
trafficking in marijuana might be recovered at Leicht's residence and
property.[2] Accordingly, the trial court did not err in denying Leicht's
motion to suppress.
We affirm.
SULLIVAN, J., concurs.
BAKER, J., dissents with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
ROBERT LEICHT, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-0210-CR-840
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
Baker, Judge, dissenting
I respectfully dissent from the majority’s holding that “there was a
substantial basis upon which to conclude that there was probable cause to
believe that evidence of trafficking in marijuana might be recovered at
Leicht’s residence and property.” Slip op. p. 8. Specifically, I believe
that inasmuch as Bonnie was already apprehended for possession of
marijuana, any statements she made regarding Leicht were not against her
penal interest.
I would note that Newby v. State, 701 N.E.2d 593 (Ind. Ct. App. 1998)
compels a different outcome than that advanced by the majority. In that
case, Steve Calloway was arrested for possession of marijuana and cocaine.
Calloway told police officers that Newby was his source for drugs and
agreed to work as an informant. Calloway gave police officers Newby’s
address, and the officers obtained a search warrant. Drugs were found at
Newby’s residence, as Calloway had contended, and he was arrested. Newby
then filed a motion to suppress, alleging that the affidavit used to obtain
the search warrant lacked probable cause. The trial court overruled
Newby’s motion and an interlocutory appeal ensued. The State argued that
Calloway’s declaration regarding his purchasing drugs from Newby
constituted statements against Calloway’s penal interest, thereby making
them credible. We reversed, holding that Calloway was already “caught with
drugs in his possession, and his decision to reveal his source to the
police did not subject him to any additional criminal liability.” Id. at
600. Moreover, we noted that neither of the police officers to whom
Calloway spoke “corroborated facts relayed to them by Calloway that
connected Newby to illegal activity” through personal observation or other
techniques. Id. at 601.
Similar to the circumstances in Newby, Bonnie told police about her
drug supplier only after the police officers found marijuana in her home.
Bonnie’s decision to divulge her source did not subject her to enhanced
criminal liability inasmuch as she was already under arrest for possession
of marijuana. See id. at 600. The State claims that Bonnie’s statements
subjected her to criminal prosecution for conspiracy to deal in marijuana,
but I maintain that our double jeopardy jurisprudence would not allow
convictions for both possession of and conspiracy to deal in the same
“crop” of marijuana found in her home. Guyton v. State, 771 N.E.2d 1141,
1143 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,
concurring)) (holding that Indiana Constitution’s double jeopardy prohibits
“conviction and punishment for an enhancement of a crime where the
enhancement is imposed for the very same behavior or harm as another crime
for which the defendant has been convicted and punished.”). Moreover, as
in Newby, the police in this case did not corroborate Bonnie’s statements
through personal observation.
I also note that inasmuch as statements against penal interest may
form the basis for an affidavit, the logic required to explain why Bonnie’s
statements are believable is fraught with peril. The anonymous tip of a
citizen informant is not sufficiently trustworthy to issue a warrant unless
his credibility has been established or the totality of the circumstances
show that his statements are true. Ind. Code § 35-33-5-2(b). Bonnie’s
statements, according to the State’s theory, are inherently believable
because she is possibly subjecting herself to greater penalties. The
difficulty with this reasoning is, however, that Bonnie was “caught red-
handed” with marijuana in her home. The State’s argument thus creates a
Through-the-Looking-Glass scenario that even Lewis Carroll would envy: A
criminal’s “confession” that he purchased cocaine while in the Oval Office
at the White House is somehow more believable than an anonymous tip that
cocaine is being sold out of the abandoned house on the corner. Our
criminal justice system is ill-served by such logic.
I would reverse the trial court’s denial of Leicht’s motion to
suppress.
-----------------------
[1] Attached to the affidavit was the statement of Bonnie, who swore
"under the pains and penalties of perjury" that she had been selling drugs
for Leicht, who "fronted" her the cost of the marijuana; that she had been
so engaged for "months," originally obtaining "like five (5) pounds a week
until the very end when [she] got twenty (20) pounds"; that she would
"either go to his house and pick it up or he [would] bring[] it to [her]
house"; and that just two days prior to her encounter with the police,
Leicht had brought her the marijuana she had in her possession to sell.
(App. 25, 21, 22).
[2] We are aware of Newby v. State, 701 N.E.2d 593 (Ind. Ct. App. 1998),
upon which the dissent relies. However, we believe the facts and
circumstances of Newby are readily distinguishable from those in the
instant case. The panel of judges in Newby found that the affidavit for
probable cause therein was based upon "hearsay within hearsay." 701 N.E.2d
at 598. Specifically, the affiant-police officer who obtained the search
warrant in Newby based his assertions in the probable cause affidavit upon
information from statements allegedly made by a so-called "confidential
informant" to another police officer and whose credibility and reliability
of information were not seriously corroborated by either officer. Id. As
noted in FACTS, there was a plethora of information and detailed facts
presented in Officer Rood's probable cause affidavit for the search
warrant. Further, affiant Rood was present for and witnessed Bonnie's
signing of a statement she made "under the pains and penalties of perjury"
providing the facts to which Rood swore in the affidavit. Thus, we believe
the affidavit provided facts upon which a neutral magistrate could safely
rely in issuing a search warrant. We further find the totality of the
circumstances presented did warrant a neutral and detached magistrate's
belief that enough probable cause existed to believe that criminal activity
was taking place at the time the search warrant was issued – without
relying upon some anticipatory event to occur before the warrant could be
activated.
