Brandon McGrath v. State of Indiana , 95 N.E.3d 522 ( 2018 )


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  •                                                                        FILED
    May 01 2018, 10:44 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    IN THE
    Indiana Supreme Court
    Supreme Court Case No. 49S04-1710-CR-653
    Brandon McGrath
    Appellant (Defendant)
    –v–
    State of Indiana
    Appellee (Plaintiff)
    Argued: November 9, 2017 | Decided: May 1, 2018
    Appeal from the Marion Superior Court 14, No. 49G14-1404-FD-21182
    The Honorable Jose D. Salinas, Judge
    On Petition to Transfer from the Indiana Court of Appeals,
    No. 49A04-1610-CR-2270
    Opinion by Justice Massa
    Chief Justice Rush, Justice David, Justice Slaughter, and Justice Goff concur.
    Massa, Justice.
    After conducting an independent investigation to corroborate an
    anonymous tip of a potential marijuana grow operation at a private
    residence, police requested and received a warrant to conduct a thermal-
    imaging search of the home. Evidence led police to request a second
    warrant to search the physical premises, leading to the discovery of the
    alleged criminal activity and the arrest and conviction of Brandon
    McGrath for one count of dealing in marijuana and one count of
    marijuana possession, both Class D felonies. McGrath challenged both
    warrants for lack of probable cause—the first for failure to corroborate the
    tipster’s allegation of criminal activity, and the second for relying on a
    fellow officer’s hearsay observations of the thermal-imaging search.
    Because we find that, under the totality of the circumstances, probable
    cause supported both warrants, we affirm the trial court’s decision to
    uphold the rulings of the issuing magistrates.
    Facts and Procedural History
    In April 2014, an anonymous tipster alerted the Indianapolis
    Metropolitan Police Department of a possible marijuana grow operation at
    a private residence located at 5926 North Crittenden Avenue. In addition
    to describing the color of the house and noting its street address, the
    informant identified the occupants by their first names: Brandon and
    Kelsey. The informant further reported a bright light visible from a
    window at night and that the odor of marijuana often emanated from the
    premises.
    Acting on this information, IMPD Detective Sergeant Kerry Buckner
    investigated the home, first verifying its color and address. While
    conducting daytime surveillance, the detective noted several windows
    with dark coverings and two air-conditioning units on the upper floor
    independent of the home’s central air system. At night, the detective
    observed a “high intensity glow” emitting from an upstairs covered
    window. App. Vol. II p.16. He could not, however, corroborate the odor of
    marijuana. Finally, by searching police records and BMV databases, both
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    unavailable to the public, Detective Buckner identified Kelsey Bigelow as
    the homeowner and Brandon McGrath as a resident.
    Having partially corroborated the informant’s tips, Detective Buckner
    then requested a search warrant for a “forward looking infrared” (FLIR)
    device, an aircraft-mounted thermal imaging camera used “to detect the
    presence of a heat signature commensurate with an indoor marijuana
    growing operation.” 
    Id. at 17.
    In his probable-cause affidavit, Detective
    Buckner explained the thermal imaging process and outlined in detail the
    circumstances of the investigation, including the anonymous tip and the
    information gathered from his own surveillance. The affidavit further
    described the detective’s training and experience in narcotics
    investigation, his experience with other officers “trained in the use of
    thermal image technology,” and the elaborate processes of marijuana
    cultivation and the methods by which suspects attempt to evade law
    enforcement detection of their operations. 
    Id. at 14.
    Upon approval of the FLIR warrant, Detective Michael Condon and
    Sergeant Edwin Andresen executed the thermal-imaging search. During
    the inspection, Detective Condon reported an atypical heat signature
    emanating from the home. Armed with this supplemental evidence,
    Detective Buckner requested and received a second warrant to search the
    physical premises. In his sworn statement—which referenced the first
    affidavit and incorporated many of its details—Detective Buckner related
    Detective Condon’s observations of the FLIR search as “consistent with
    the heat signature put off by lights used to grow marijuana indoors.” 
    Id. at 26.
    However, the second affidavit contained no information describing
    Detective Condon’s training and experience.
    A search of the house revealed an extensive marijuana grow operation,
    resulting in the seizure of 180 individual plants, heat lamps, plant
    fertilizer, dehydrators, drying racks, and deodorizing machines. Police
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    arrested McGrath and the State charged him with one count of dealing in
    marijuana and one count of marijuana possession, both Class D felonies. 1
    At trial, McGrath moved to suppress the seized evidence, challenging
    the search warrants under the Fourth Amendment to the U.S. Constitution
    and Article 1, Section 11 of the Indiana Constitution. McGrath argued that
    both warrants lacked probable cause—the first for failure to establish the
    informant’s credibility or corroborate the anonymous tip, and the second
    for relying on Detective Condon’s hearsay observations of the FLIR
    search.
    The trial court denied the motion to suppress, admitted the seized
    evidence over McGrath’s objection, and found McGrath guilty as charged.
    The court stayed McGrath’s sentencing pending appeal.
    A divided Court of Appeals reversed McGrath’s conviction, finding the
    first search warrant lacked probable cause due to insufficient evidence
    corroborating the informant’s allegation of criminal activity. McGrath v.
    State, 
    81 N.E.3d 655
    , 668–69 (Ind. Ct. App. 2017), vacated. The majority
    concluded that the detective’s training and experience, “[h]owever
    impeccable,” was insufficient to convert the innocuous circumstances he
    observed—the window coverings, the A/C units, and the distinct
    lighting—into objective factors establishing probable cause of criminal
    activity. 
    Id. at 668.
    The dissent, without reaching the question of probable
    cause, would have applied the good faith exception “to render the
    evidence collected from [the] residence admissible.” 
    Id. at 669.
    The State petitioned for transfer, which we granted, thus vacating the
    Court of Appeals decision. Ind. Appellate Rule 58(A).
    Standard of Review
    This case involves two judicial rulings: the magistrate’s finding of
    probable cause to issue the warrant and the trial court’s decision to
    1   Ind. Code § 35-48-4-10 (2012) (dealing); I.C. § 35-48-4-11 (possession).
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    uphold that finding. We review the latter ruling de novo but apply a
    deferential standard to the former, affirming the magistrate’s decision to
    issue the warrant if a “substantial basis” existed for finding probable
    cause. Watkins v. State, 
    85 N.E.3d 597
    , 599 (Ind. 2017).
    Discussion and Decision
    Under the Fourth Amendment to the U.S. Constitution, “[t]he right of
    the people to be secure in their persons, houses, papers, and effects,
    against unreasonable searches and seizures, shall not be violated.” U.S.
    Const. amend. IV. To preserve that right, a judicial officer may issue a
    warrant only “upon probable cause, supported by Oath or affirmation,
    and particularly describing the place to be searched, and the persons or
    things to be seized.” 
    Id. Article 1,
    Section 11 of the Indiana Constitution
    contains language nearly identical to its federal counterpart. And our
    statutory law codifies these constitutional principles, setting forth the
    requisite information for an affidavit to establish probable cause. See Ind.
    Code § 35-33-5-2 (2008).
    I. Probable Cause Based on Hearsay
    A probable-cause affidavit “need not reflect the direct personal
    observations of the affiant” but may instead rely on hearsay information.
    Aguilar v. Texas, 
    378 U.S. 108
    , 114 (1964), abrogated on other grounds
    by Illinois v. Gates, 
    462 U.S. 213
    (1983). For if the standard rules of evidence
    applied, “few indeed would be the situations in which an officer, charged
    with protecting the public interest by enforcing the law, could take
    effective action” toward establishing probable cause. Brinegar v. United
    States, 
    338 U.S. 160
    , 174 (1949).
    Of course, not all hearsay amounts to probable cause. To the contrary,
    there must be some “reliable information establishing the credibility of the
    source” and “a factual basis for the information furnished.” I.C. § 35-33-5-
    2(b)(1). Alternatively, a probable-cause affidavit must contain information
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    that, under the totality of the circumstances, corroborates the hearsay. 
    Id. § 35-33-5-2(b)(2).
    2
    McGrath challenges both warrants for lack of probable cause based on
    uncorroborated hearsay in the underlying affidavits. We address each
    warrant in turn.
    A. Under the totality of the circumstances, the FLIR
    affidavit contained sufficient evidence to corroborate
    the anonymous tip.
    McGrath first argues that, because Detective Buckner failed to detect
    the odor of marijuana near the home, the affidavit supporting the FLIR
    warrant lacked sufficient evidence to corroborate the anonymous tip of
    criminal activity. 3 The detective’s training and expertise, McGrath asserts,
    could not “convert the innocuous circumstances he observed into
    particularized and objective factors giving rise to a probable cause of
    criminal activity.” Response to Pet. to Trans. at 9.
    The State counters that the window coverings, the A/C units, and the
    distinct lighting—taken together—proved sufficiently indicative of a
    2Subsection (b)(1), introduced in a 1977 amendment to the predecessor statute, codified the
    two-prong test set forth in Aguilar v. Texas, 
    378 U.S. 108
    (1964) and Spinelli v. United States, 
    393 U.S. 410
    (1969). See Jaggers v. State, 
    687 N.E.2d 180
    , 183 n.2 (Ind. 1997) (tracing the statute’s
    history). The U.S. Supreme Court in Illinois v. Gates abandoned the Aguilar-Spinelli test in lieu
    of the “totality-of-the-circumstances analysis that traditionally has informed probable cause
    determinations.” 
    462 U.S. 213
    , 238 (1983). The current subsection (b)(2), added in 1984, reflects
    the analysis set forth in Gates. 
    Jaggers, 687 N.E.2d at 183
    n.2. Subsection (b)(1) survives, the
    elements of which—although no longer “independent requirements to be rigidly exacted”—
    remain “highly relevant” in determining probable cause under the totality of the
    circumstances. 
    Gates, 462 U.S. at 230
    . In analyzing the overall reliability of a tip, a deficiency in
    one factor “may be compensated for . . . by a strong showing as to the other, or by some other
    indicia of reliability.” 
    Id. at 233.
    3As with physical searches, the Fourth Amendment requires a warrant for the use of thermal
    imaging scanners such as the one used here. Kyllo v. United States, 
    533 U.S. 27
    , 40 (2001)
    (“Where . . . the Government uses a device that is not in general public use, to explore details
    of the home that would previously have been unknowable without physical intrusion, the
    surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”).
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    marijuana grow operation to establish probable cause of criminal activity.
    By focusing on these otherwise mundane facts in isolation, and by
    ignoring the detective’s relevant training and experience, the State
    contends, a court could find probable cause lacking in virtually any
    situation.
    We agree with the State.
    An anonymous tip cannot, standing alone, support a finding of
    probable cause. Jaggers v. State, 
    687 N.E.2d 180
    , 182 (Ind. 1997) (citing
    
    Gates, 462 U.S. at 227
    ). Instead, the reliability of hearsay from a source of
    unknown credibility depends on other factors, including (1) the basis of
    the informant’s knowledge or (2) corroboration through independent
    police investigation. 
    Id. Other elements
    may come into play depending on
    the facts of the case. 4
    Ultimately, the task of a magistrate in deciding whether to issue a
    search warrant “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.” 
    Id. at 181
    (citing 
    Gates, 462 U.S. at 238
    ). We focus on
    whether the reasonable inferences drawn from the totality of the evidence
    support the finding of probable cause. 
    Id. Rather than
    consider post hoc
    justifications for the search, we evaluate only the evidence presented to
    the issuing magistrate. Seltzer v. State, 
    489 N.E.2d 939
    , 941 (Ind. 1986).
    Here, the informant reported having observed the criminal activity
    firsthand, thus entitling the tip to “greater weight than might otherwise be
    the case.” 
    Gates, 462 U.S. at 234
    ; 
    id. at 268
    n.20 (White, J., concurring)
    (noting that the “basis of knowledge prong is satisfied by a statement
    from the informant that he personally observed the criminal activity”)
    (internal quotation marks omitted); see also Matter of M.R.D., 
    482 N.E.2d 4These
    factors may include the informant’s past reliability in supplying information to police,
    or the informant’s accurate prediction of otherwise unforeseeable criminal activity. 
    Jaggers, 687 N.E.2d at 182
    .
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    306, 309 (Ind. Ct. App. 1985) (noting that an informant’s firsthand
    observations may relate to sight, sound, touch, or smell).
    Detective Buckner then conducted an independent investigation to
    confirm the street address, the color of the house, the names of the
    occupants, and the bright light. We acknowledge that some of these facts
    were plainly evident. See Sellmer v. State, 
    842 N.E.2d 358
    , 362 (Ind. 2006)
    (tip identifying the suspect’s car “provided the police with no information
    that was not already easily knowable by a member of the general public”).
    But not all of them were obvious: the address was obscured and there was
    no evidence of Brandon and Kelsey’s occupancy in the public domain.
    Beyond these facts, Detective Buckner’s additional observations further
    corroborated the tipster’s allegations. As he explained in his affidavit,
    covered windows are used to conceal evidence of criminal activity. And
    the “high intensity glow,” he determined, was “consistent with light that
    emits from High Pressure Sodium light and Metal Halide lights” used for
    indoor grow operations. App. Vol. II p.37. With this in mind, the separate
    A/C units, he concluded, functioned to offset the high temperatures
    produced by the artificial lighting.
    These facts, when viewed discretely, are certainly prone to innocent
    explanation. But “this kind of divide-and-conquer approach is improper.”
    District of Columbia v. Wesby, ––– U.S. –––, 
    138 S. Ct. 577
    , 589 (2018).
    Instead, we must look at “the whole picture.” 
    Id. When viewed
    collectively, and in the context of Detective Buckner’s training and
    experience, these facts are sufficiently indicative of a marijuana grow
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    operation. See 
    Gates, 462 U.S. at 243
    n.13 (innocent activity or behavior will
    often establish a basis for probable cause). 5
    We thus conclude that a “substantial basis” existed to support the
    magistrate’s decision to issue the FLIR warrant.
    B. Under the collective-knowledge doctrine, the second
    affidavit contained sufficient information to establish
    probable cause.
    Next, McGrath argues that the second probable-cause affidavit fails for
    lack of information corroborating Detective Condon’s hearsay
    observations of the FLIR search. McGrath specifically points to the
    absence of (1) a statement detailing Detective Condon’s training and
    experience and (2) a description of the FLIR system itself—“how it works,
    its accuracy, its ranges, its calibrations, and the age of the machine.”
    Appellant’s Br. at 21.
    The State counters that an independent corroboration of Detective
    Condon’s statements was unnecessary. Rather, the State insists, Detective
    Buckner properly relied on information from a fellow officer under the
    collective-knowledge doctrine. McGrath rejects this argument, asserting
    that such an exception to the hearsay requirement relates only to
    reasonable suspicion in the context of an investigative stop.
    Again, we agree with the State.
    5 McGrath would have us disregard the detective’s training and experience in determining the
    existence of probable cause. But state and federal courts have “long recognized the police
    officer’s investigatory insight in evaluating probable cause.” Anna Lvovsky, The Judicial
    Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2026–27 (2017) (citing cases). Indiana is
    no exception, as our courts are consistently “deferential to police officer training and
    experience.” Denton v. State, 
    805 N.E.2d 852
    , 856 (Ind. Ct. App. 2004), trans. denied. Otherwise,
    “there would be little merit in securing able, trained [officers] to guard the public peace if
    their actions were to be measured by what might be probable cause to an untrained civilian.”
    2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.2(c) (5th ed. 2017)
    (internal quotations omitted).
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    The collective- or imputed-knowledge doctrine is well settled in
    Indiana and, contrary to McGrath’s assertion, applies to both investigative
    stops and search warrants. See State v. Gray, 
    997 N.E.2d 1147
    , 1153 (Ind. Ct.
    App. 2013), trans. denied (“[A]n arrest or search is permissible where the
    actual arresting or searching officer lacks the specific information to form
    the basis for probable cause or reasonable suspicion but sufficient
    information to justify the arrest or search was known by other law
    enforcement officials initiating or involved with the investigation.”) (citing
    United States v. Colon, 
    250 F.3d 130
    , 135–36 (2nd Cir. 2001)). So long as
    fellow officers applying for a search warrant collectively have probable
    cause, “their individual knowledge can be imputed to the officer signing
    the affidavit in support of the search warrant.” Utley v. State, 
    589 N.E.2d 232
    , 236 (Ind. 1992).
    Unlike the hearsay requirement of the warrant statute, designed to
    ensure an informant’s veracity, the collective-knowledge doctrine
    presumes a fellow officer’s credibility, thus “no special showing of
    reliability need be made as a part of the probable cause determination.” 2
    Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment §
    3.5(a) (5th ed. 2017). See also United States v. Ventresca, 
    380 U.S. 102
    , 111
    (1965) (“Observations of fellow officers of the Government engaged in a
    common investigation are plainly a reliable basis for a warrant applied for
    by one of their number.”); Moody v. State, 
    448 N.E.2d 660
    , 663 (Ind. 1983)
    (rejecting theory that information from out-of-state police department
    amounts to “no more than an anonymous tip from an informant of
    unproven reliability”).
    In his second affidavit, Detective Buckner clearly stated that he had
    applied for and received a warrant to conduct the FLIR search. He further
    specified that Detective Condon and Sergeant Andresen executed the
    search, the results of which—according to Condon and as related by
    Detective Buckner—revealed a heat signature consistent with an indoor
    marijuana grow operation. While the affidavit failed to disclose Detective
    Condon’s training and experience, the magistrate could reasonably have
    inferred the detective’s expertise in conducting the FLIR search based on
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    Detective Buckner’s tacit endorsement of his fellow-officer’s work. 6 See
    
    Jaggers, 687 N.E.2d at 181
    –82 (a reviewing court looks for “whether
    reasonable inferences drawn from the totality of the evidence support the
    determination of probable cause”) (internal quotation marks omitted).
    Finally, the absence of a statement detailing the accuracy of the FLIR
    device, or the method by which it operates, is of no consequence here.
    Evidence of probable cause—whether based on an anonymous tip or an
    officer’s technological tools—need not meet the more rigorous standard of
    proof in establishing guilt. See State v. Johnson, 
    503 N.E.2d 431
    , 433 (Ind. Ct.
    App. 1987), trans. denied (concluding that, while an unapproved
    breathalyzer test “would not have been admissible at trial,” it could be
    used to establish probable cause).
    For the reasons above, we conclude that the second magistrate had a
    “substantial basis” for issuing the warrant to search the physical premises
    of McGrath’s residence.
    Conclusion
    Because we find that probable cause supported both warrants, we
    affirm the trial court’s decision to uphold the rulings of both magistrates. 7
    Rush, C.J., and David, Slaughter, and Goff, JJ., concur.
    6This conclusion is further bolstered by the fact that the first affidavit, incorporated by
    reference in the second affidavit, describes Detective Buckner’s experience with officers
    “trained in the use of thermal image technology.” App. Vol. II p.14.
    7 McGrath also argues that by omitting key facts from the affidavit—namely, evidence of
    other nearby homes with window coverings and multiple A/C units—the detective misled the
    magistrate into finding McGrath’s home uniquely indicative of a marijuana grow operation.
    For this reason, he insists, the good-faith exception to the exclusionary rule should not apply.
    Because we conclude that the affidavits upon which the warrants relied contained sufficient
    indicia of probable cause, this issue is moot.
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    ATTORNEYS FOR APPELLANT
    Brian J. Johnson
    Danville, Indiana
    Todd L. Sallee
    Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE
    Curtis T. Hill, Jr.
    Indiana Attorney General
    Laura R. Anderson
    Ellen H. Meilaender
    Deputy Attorneys General
    Indianapolis, Indiana
    Indiana Supreme Court | Case No. 49S04-1710-CR-653 | May 1, 2018   Page 12 of 12