After the following Motion to Suppress was filed in the Marshall County Superior Court in 2013, the client (“Scott H___”) elected to leverage the Motion into a plea agreement to a prison term that was several years shorter than the Prosecutor was willing to offer before the Motion was filed:

MOTION TO SUPPRESS

            The Defendant, by counsel, moves to suppress all evidence seized as a result of the search of his residence on or about February 21, 2012, pursuant to the Fourth Amendment to the United States Constitution and Article 1, § 11 of the Indiana Constitution, and in support hereof states:

At a suppression hearing the State has the burden of demonstrating the constitutionality of the measures it used to secure evidence.  State v Stickle, 792 N.E.2d 51 (Ind. Ct. App. 2003). It is also the State’s burden to prove the search was reasonable under the totality of the circumstances in an Article 1, Section 11 of the Indiana Constitution analysis.  Mitchell v State, 745 N.E.2d 775 (Ind. 2001).

A. The search was unlawful because the Search Warrant Affidavit did not establish probable cause.

            The Indiana Supreme Court set forth the applicable standard in Jaggers v. State, 687 N.E.2d 180 (Ind. 1997):

In deciding whether to issue a search warrant, “[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.” 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. at 2332-33. “[S]ubstantial 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. “Reviewing court” for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. at 98. In this review, we consider only the evidence presented to the issuing magistrate and not post hac justifications for the search.

Id. at 181-82 (citations omitted).

The Search Warrant Affidavit in this case was signed by Patrolman Jonathan Bryant of the Marshall County Sheriff’s Department and dated February 22, 2012. However, it was filed a day before, on February 21, 2012, and the Search Warrant Order was dated February 21, 2012 at 1:00 p.m.. The Search Warrant Order was certified by Patrolman Bryant as executed on January 21, 2012 beginning at 2:03 p.m. (i.e., a month before the Search Warrant Order was issued), although the Affidavit of Probable Cause signed by Bryant and filed on March 5, 2012 with the charges in this case stated that he, “along with other members of the Marshall County Police Department and Plymouth Police Department, executed a search warrant” at the Defendant’s residence approximately an hour after the Search Warrant Order was issued.

According to the Search Warrant Affidavit, on the day before it was filed Bryant conducted a traffic stop on a vehicle at approximately 7:18 p.m.. Methamphetamine was found under the seat of one of the three occupants, who was then arrested for possession. According to the Affidavit, Bryant “spoke to each of the occupants and each said that they had just come from the Scott H___ residence.” By itself, this fact does not even rise to the level of “reasonable suspicion” that the Defendant had engaged in criminal activity, let alone the “probable cause” required before a warrant may issue. See Bovie v. State, 760 N.E.2d 1195, 1198 (Ind.Ct.App. 2002) (holding that a detective witnessing the defendant and his passenger, a “known drug user and seller,” leave a “known drug house,” did not rise to the level of the reasonable suspicion required in order to make an investigatory stop); Nowling v. State, 955 N.E.2d 854, 861 (Ind.Ct.App. 2011) (probationer’s status as a high-risk probationer and the vague statement that he “lives in la-la land” did not support a finding of reasonable suspicion); Hensley v. State, 962 N.E.2d 1284, 1291 (Ind.Ct.App. 2012) (State did not contend that two unsubstantiated tips provided “reasonable suspicion” to believe that probationer was engaging in criminal activity). The Affidavit did not say that any of the occupants even admitted to knowing that the methamphetamine was in the vehicle, let alone that they had obtained it from the Defendant, nor did the Affidavit say whether the occupants had stated or been asked where else they had been that day. In fact, at the deposition of Bryant held on October 29, 2012, he answered “No” to the question, “Did they indicate to you at all that they got drugs from Mr. H___’s residence?” (Emphasis added.)

The rest of the Affidavit consists of Bryant’s account of statements made to him, on the day the Affidavit was filed, by the probation officer for the Defendant, Steve Harner, none of which, again, rises even to the level of reasonable suspicion that the Defendant was engaged in criminal activity, let alone probable cause. According to Bryant, Harner told Bryant that the Defendant “currently has a third amended motion to revoke probation for numerous technical and a criminal violations of his probation including, failing to cooperate with his probation officer and for failing and refusing to submit to alcohol and drug testing on more than one occasion since June of 2011,” but there was no indication in the Affidavit of when since June of 2011 these violations occurred. In fact, the third amended motion to revoke probation was filed on October 3, 2011, i.e., almost five (5) months before the Affidavit was filed. Moreover, this third amendment to the motion to revoke probation followed and was based upon the criminal charges resulting from the probation “home visit” on September 22, 2011 that was also cited in the Affidavit as a basis for Bryant’s belief that a search of the Defendant’s residence would produce contraband, drug paraphernalia and/or illegal substances. But again, the mere circumstance that the Defendant allegedly committed a violation five (5) months earlier did not constitute reasonable suspicion, let alone probable cause, that at the time of the Affidavit the Defendant was engaged in criminal activity. Finally, Bryant asserted that Abby Caswell, the juvenile probation officer for the Defendant’s son, Brandon H___, as well as Harner, “would like to perform another home search,” but Bryant did not state in the Affidavit that he actually spoke to Caswell. Rather, “Harner advised” Bryant that the property for which Bryant sought the search warrant was owned by the Defendant’s father and that the Defendant “lives in a converted shed that is detached from the main house in which Scott’s son Brandon H___ lives. That is Scott H___ lives in the shed and Brandon H___ lives in the house.” Moreover, “Harner further advised” Bryant that during the probation “home visit” on September 22, 2011 Caswell searched the house in which Brandon was living and “found foilies with burnt residue.” Bryant’s Affidavit then asserted, apparently still based on Harner’s assertions, that Brandon “has also tested positive for methamphetamine during a probation test,” but gave no indication of when this positive test supposedly occurred. Therefore, this vague assertion in the Affidavit could not form a basis for probable cause (even if in fact the positive test had recently occurred, since Bryant did not state when it occurred, although on information and belief Brandon has not tested positive after the September 22, 2011 home visit), and even if it could, it would only support a search of the house in which Brandon was living and not of the converted shed in which the Defendant was living.

“Article I, § 11 of the Indiana Constitution and Indiana Code §§ 35-33-5-1 and -2 require that probable cause exist before a warrant shall issue.” Newby v. State, 701 N.E.2d 593, 597, 602 (Ind.Ct.App. 1998) (concluding that the magistrate’s determination of probable cause lacked a substantial basis and that the search of the defendant’s residence was therefore unlawful). Bryant apparently recognized that the facts stated in his Affidavit did not establish probable cause, as he concluded his Affidavit by claiming that both Harner and Caswell “are requesting the additional support of a written search warrant in order to complete their home searches planned for any immediate available time, once signed.” But this supposed request on the part of Harner and Caswell (neither of whom signed the Affidavit) could not supply a probable cause that didn’t exist. Nor could it eliminate the requirement of probable cause in favor of the reasonable suspicion that ordinarily supports a probation search. In the absence of the probable cause required by both the Indiana Constitution and the Indiana Code, the Search Warrant Order was simply unlawful, and could provide no “additional support” for either Bryant or Harner and Caswell.

The “good faith exception” does not apply. The good faith exception has been codified at Indiana Code § 35-37-4-5(a), which provides that “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.” However,

The good faith exception cannot be so broadly construed as to obliterate the exclusionary rule. Accordingly, certain police conduct does not qualify for this exception, including where: (1) the magistrate is misled by information in the affidavit that the affiant either knew was false or would have known was false except for his reckless disregard for the truth, or (2) the warrant was based on an affidavit so lacking in indicia of probable cause as to render belief in its existence unreasonable.

Newby, 701 N.E.2d at 602-03 (citations omitted) (concluding that the search was not executed in objective good faith reliance on the warrant after noting that “the same officers that provided and presented the misleading information in the affidavit actively participated in the subsequent search”). See also Germaine v. State, 718 N.E.2d 1125, fn.4 (Ind.Ct.App. 1999) (“the good faith exception will ordinarily not apply where the same police officers who provide and present the misleading information in obtaining a warrant actively participate in the subsequent search”); Jaggers, 687 N.E.2d at 185 (holding that the information on which the warrant was based was so lacking in indicia of probable cause that no well-trained officer would reasonably have relied on the warrant).

Here, Bryant was the officer who both obtained the warrant and executed the subsequent search. The information Bryant had provided and presented in his Affidavit was so lacking in indicia of probable cause that no well-trained officer would have reasonably relied on the warrant based on it. Bryant’s attempt to obtain the search warrant on the grounds that, according to him, probation wanted to do a “home search” shows he knew this. And if the search that occurred was in reality a probation search, and not conducted pursuant to “a search warrant that was properly issued upon a determination of probable cause,” then the good faith exception is wholly inapplicable. IC 35-37-4-5(b)(1)(A). Moreover, a careful reading of Bryant’s Affidavit shows it to have been crafted to mislead the judge who signed the warrant by, inter alia, obscuring the remoteness of the events on which it was based, the sources of the hearsay it relied upon, and the fact that the occupants of the vehicle never indicated to Bryant that they had gotten the methamphetamine found in the vehicle from the Defendant’s residence. “Totality of the circumstances means just that, not information that has been selected with the goal of making the finding of probable cause more likely.  Nor does ‘totality of the circumstances’ allow the omission of relevant information that could affect independent judicial determination.” Newby v State, 701 N.E.2d 593, 603-604 (Ind. Ct. App. 1998).  In Eaton v State, 878 N.E. 481 (Ind. Ct. App. 2007) the court held that a probable cause affidavit must include all material facts, including those that cast doubt on the existence of probable cause.

B. The search cannot be justified as a “probation search.”

            In the first place, it must be noted that the evidence sought to be suppressed by this Motion was as a matter of fact and in actual reality obtained pursuant to the search warrant, and was not a probation search. Bryant explicitly states as much in his Affidavit of Probable Cause filed with the charges in this case, where he states that he “executed a search warrant at . . . the Scott H___ residence.” According to Bryant’s police report on the execution of the search warrant, “it was decided to have the Marshall County Probation Department’s officers stage at the Blissville Church, which is close in proximity to the H___ residence [it is in fact approximately 0.3 miles away according to Google Maps], until uniformed and armed Police Officers secured the scene and neutralized any threats. . . . I knocked loudly several times on the exterior door, announcing we were the Police and had a search warrant. When no one answered after a reasonable amount of time it would have taken someone to reach the door, Patrolman Cooper forced the door open with the least amount of force necessary.” (Emphasis added.) Therefore, because the search warrant was not based upon probable cause, as shown above, and the evidence sought to be suppressed was in fact obtained pursuant to that unlawful search warrant, the argument below is made “for the sake of argument,” to show that even if the search could be characterized as a “probation search” it could not be justified on that ground. The search that occurred in this case was not in fact a “warrantless” search, because it was executed pursuant to and on the authority of a warrant. The search must therefore stand or fall with the warrant and with the affidavit on which it was based.

The State has the burden of establishing the exception to the warrant requirement by clear and convincing evidence.  Esquerdo v State, 640 N.E.2d 1023 (Ind. 1994). In the recent case of Nowling v. State, 955 N.E.2d 854, 859 (Ind.Ct.App. 2011), the Indiana Court of Appeals explained:

“[T]he United States Supreme Court has determined that `[a] State’s operation of a probation system . . . presents `special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.'” Micheau v. State, 893 N.E.2d 1053, 1059 (Ind.Ct.App. 2008) (quoting Allen v. State, 743 N.E.2d 1222, 1227 (Ind.Ct.App. 2001) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)), reh’g denied trans. denied), trans. denied. The Court held that these “`special needs’ . . . justified warrantless searches based on reasonable suspicion rather than probable cause.” State v. Schlechty, 926 N.E.2d 1, 3-4 (Ind. 2010) (citing Griffin, 483 U.S. at 875, 107 S.Ct. 3164), reh’g denied, cert. denied, ___ U.S. ___, 131 S.Ct. 934, 178 L.Ed.2d 776 (2011). Id. The Indiana Supreme Court, in examining Griffin, noted that whether the reasonableness requirement was established by statute or “by narrowly tailored restrictions included within a probation agreement,” warrantless probation searches “may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because, among other things, supervision of probationers is necessary to ensure that probation restrictions are in fact observed, and that the community is not harmed by the probationer being at large.”

Nowling noted in footnote 2 of the opinion (citations omitted) that

the Court in Schlechty also examined United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), in which the United States Supreme Court “expanded its holding in Griffin by declaring that searches performed in compliance with a search provision contained within a valid probation agreement may be constitutional even if they were not `conducted by a probation officer monitoring whether the probationer is complying with probation restrictions.'” In Knights, the probationer’s apartment was searched by a police detective without a warrant following “several acts of vandalism and arson” against a company which had recently “filed a complaint for theft of services” against the probationer and had terminated the probationer’s employment. The probationer had agreed to a condition of probation which “provided for police access to his `person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant for arrest or reasonable cause by any probation officer or law enforcement officer.'” The issue as stated by the United States Supreme Court was “whether the Fourth Amendment limits searches pursuant to [Knights’s probation condition] to those with a `probationary’ purpose.” The Court held, as stated by the Schlechty Court, that “even if there is no probationary purpose at stake, a warrantless search may be justified on the basis of reasonable suspicion to believe that the probationer has engaged in criminal activity and that a search condition is one of the terms of probation,” and it based its rationale on its “general Fourth Amendment approach of `examining the totality of the circumstances,’ with the probation search condition being a salient circumstance.”

Under the circumstances of this case, which clearly involved a probationary search and in which there is no evidence that criminal activity had occurred prior to the search of Nowling’s bedroom, we need not examine whether the search was justified under the Knights test. Also, we need not address at this time the question of whether the Knights test would apply to a probationer such as Nowling where the search provision in the probation agreement provides explicitly that a search “shall be conducted by the probation officer and/or his or her authorized agent” and does not include law enforcement officers generally.

In this case, like in Nowling and unlike in Knights, the search provision in the Defendant’s probation agreement provides explicitly that the Defendant “shall permit a Probation Officer to visit me at my home or elsewhere, waiving my 4th amendment right to allow reasonable search of my home, vehicle or person by a Probation Officer or law enforcement with a Probation Officer present.” (Emphasis added.) Therefore, as suggested in Nowling, the Knights test should not apply to the Defendant. Therefore, it remains true in this case that “[t]he State must demonstrate that a warrantless search of a probationer was a true probationary search and not an investigatory search,” which the State cannot do under the facts of this case. See, e.g., Allen, 743 N.E.2d at 1227-1228. Compare the facts in Hensley v. State, 962 N.E.2d 1284, 1286, 1288-90 (Ind.Ct.App. 2012), where there too a police officer understood that he “didn’t have enough for a search warrant,” and so contacted the probation officer:

This evidence reveals that the search was not conducted as a probation search, nor was it truly conducted for probation reasons. Instead, the police were pursuing their own agenda and conducted an investigatory search under the guise that it was a probationary search. The search was prompted by the police officers, not by the probation officer. Stuckey agreed that the police could join her in the search, as officers often do for the reason of safety. Instead of acting as Stuckey’s backup, however, the police entered the home and left Stuckey alone with Hensley, without conducting a safety sweep of the home that purportedly contained a firearm. The police did not ask Hensley about the ownership of the home and failed to follow the lead of Stuckey, from whom they could have learned that Robert slept in the living room and not the bedroom. This search did not meet the guidelines for a valid search under Griffin.

Furthermore, it appears that neither Knights nor Schlechty affected rights under the Indiana Constitution. The Indiana Supreme Court in Schlechty explicitly stated:  “However, because both sides rely heavily on Griffin, we address the facts here under Federal Fourth Amendment jurisprudence only, and express no opinion on whether the result would be the same under Article 1 Section 11 of the Indiana Constitution.” Schlechty, 926 N.E2d at 3. The concern of the courts in cases like Allen, supra, and Michean v State, 893 N.E.2d 1057 (Ind. Ct. App. 2008) therefore survives Schlechty: “A probation search cannot be a mere subterfuge enabling the police to avoid obtaining a search warrant.” Id. The Indiana courts have a long history of more stringent interpretation of search and seizure guidelines than what is found in federal precedent. See, e.g., State v. Bulington, 802 N.E.2d 435 (Ind. 2004) (finding that the purchase by two companions of three packages each of cold medicine was not enough to establish reasonable suspicion under the Indiana Constitution, though the issue was “fairly debatable” under the United States Constitution); Clark v State, 804 N.E.2d 196 (Ind. App. 2004). It can be reasonably expected that, given the more restrictive application of the Indiana Constitution, the Indiana Supreme Court would find that the Knights test does not apply under the Indiana Constitution.

In any event, even under the Knights test as examined in Schlechty the search here cannot be justified. That test holds that “a warrantless search may be justified on the basis of reasonable suspicion to believe that the probationer has engaged in criminal activity and that a search condition is one of the terms of probation.” (Emphasis added.) In the first place, as explained above, the mere circumstance that occupants of a vehicle in which methamphetamine was found told Bryant they had come from the Defendant’s residence, and that the Defendant had allegedly engaged in criminal activity five months earlier, did not create reasonable suspicion to believe that the Defendant was engaged in criminal activity at the time of the search. In the second place, the explicit language of the “search condition” in the Defendant’s terms of probation did not authorize the search that occurred here. That search condition only permitted “a Probation Officer to visit me at my home or elsewhere.” In connection with such a visit by a Probation Officer, it allowed a warrantless search by “law enforcement” only “with a Probation Officer present.” (In fact, it doesn’t appear that the Indiana Code, section 35-38-2-2.3, even authorizes a court to require a person as a condition of probation to permit anyone other than “the person’s probation officer to visit the person at reasonable times at the person’s home or elsewhere,” unless the condition is “reasonably related to the person’s rehabilitation.”) That did not occur here, as the Probation Officers were approximately 0.3 miles away at the time of the search. Furthermore, the search condition specified that such a search must be “reasonable,” and law enforcement’s decision to break down the Defendant’s door based on nothing more than Patrolman Bryant’s “hunch” was not reasonable.

C. The Defendant’s statement to police must be suppressed because the State will not be able to provide sufficient independent evidence of the corpus delicti.

            The corpus delecti rule states that a confession alone is insufficient to prove that a crime has been committed and that there must be independent evidence that provides an inference that a crime was committed. Facil v. State, 966 N.E.2d 700, 708 (Ind.Ct.App. 2012). In this case, even apart from the suppression of the evidence seized as a result of the unlawful search, the corpus delecti rule should operate to exclude the arguably inculpatory statements made by the Defendant to Bryant at the Marshall County Jail following his arrest. These statements were not specific as to time or place (not even indicating, for example, whether they occurred in Marshall County), and the physical evidence seized from the Defendant’s residence supports no more than the charge of possession of methamphetamine and possibly a charge of possession of precursors. But because the search of the Defendant’s residence was unlawful and the evidence seized as a result of this search must be suppressed, the Defendant’s statements to Bryant following his arrest as a result of this unlawful search is “fruit of this poisonous tree,” and the physical evidence seized as a result of this unlawful search may not be used by the State to show evidence of corpus delicti.

WHEREFORE, the Defendant requests an order suppressing all evidence resulting from the unlawful search of the Defendant’s residence.

Respectfully submitted,

 

______________________________

John A. Kindley (23839-71)

123 S. Michigan St., PO Box 199

Lakeville, IN 46536

(574) 968-8602

Attorney for Defendant