Omid Petrelli v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 11 2017, 5:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Todd Ess Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Omid Petrelli, October 11, 2017
Appellant, Court of Appeals Case No.
49A02-1704-MI-741
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1606-MI-23088
Bailey, Judge.
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Case Summary
[1] After obtaining a search warrant, law enforcement opened a suspicious package
addressed to Omid Petrelli (“Petrelli”) that contained $19,740 in cash. The
State moved to transfer the money to the United States, and the trial court so
ordered. Petrelli now challenges the transfer order, arguing that the money was
unlawfully seized because of a defect in the underlying search warrant affidavit.
[2] We affirm.
Facts and Procedural History
[3] On June 14, 2016, Detective Gary Hadden (“Detective Hadden”) and his
canine partner Leona examined several suspicious packages at an Indianapolis
shipping company. After sniffing a parcel addressed to Petrelli, Leona
indicated that she detected the odor of a controlled substance. Detective
Hadden then applied for a search warrant, which was issued, and a subsequent
search of the package revealed $19,740 in United States currency. The money
was confiscated as proceeds of narcotics trafficking and money laundering.
[4] Pursuant to Indiana Code Section 35-33-5-5(j), the State filed a motion seeking
to transfer the money to the United States. Petrelli opposed the motion,
arguing that the search was unlawful because the warrant was predicated upon
a deficient affidavit. Following a hearing, the trial court granted the motion.
[5] Petrelli now appeals.
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Discussion and Decision
[6] The propriety of a transfer order under Indiana Code Section 35-33-5-5(j) is
dependent on the lawfulness of the search that led to the state obtaining the
property in question. Ind. Code § 34-24-1-2(a) (providing that “[p]roperty may
be seized . . . only if . . . the seizure is incident to a lawful . . . search”); Membres
v. State, 889 N.E.2d 265, 269 (Ind. 2008) (applying Indiana Code Section 34-24-
1-2(a) and concluding that “if the search or seizure . . . was unlawful, the
turnover must be reversed”). The lawfulness of a search is a question of law,
which we review de novo. Membres, 889 N.E.2d at 268.
[7] Petrelli argues that the search was unlawful because the search warrant was not
supported by a sufficient oath or affirmation. Both the Fourth Amendment to
the United States Constitution and Article 1, Section 11 of the Indiana
Constitution generally proscribe warrantless searches and require that a search
warrant issue only upon probable cause, supported by oath or affirmation. As
for the adequacy of the oath or affirmation, the Fourth Amendment and Article
1, Section 11 have similar concerns—namely, that the oath or affirmation
impress upon the swearing individual an appropriate sense of obligation to tell
the truth. See Wallace v. State, 199 Ind. 317, 157 N.E. 657, 660 (1927) (observing
that an oath or affirmation “must bear the countenance of truth, which is so
infallible that either an action for damages or a criminal charge of perjury may
be legally predicated thereon, if such statement is untrue”); State v. Holladay, 120
S.C. 154, 112 S.E. 827 (1922) (concluding that the oath requirement was
satisfied when the affiant stated to a magistrate judge, “I want to make this
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affidavit before you,” when the affiant knew that he was making an oath); see
also United States v. Dunnigan, 507 U.S. 87, 97 (1993) (observing, in approving of
perjury statutes, that “[a]ll testimony . . . has greater value because of the
witness’[s] oath and the obligations or penalties attendant to it.”).
[8] Independent of these constitutional provisions, Indiana Code Section 35-33-5-1
provides that a warrant is properly issued “only . . . [when] supported by oath
or affirmation,” and a related code section states in pertinent part:
An affidavit for search substantially in the following form shall be
treated as sufficient:
. . . A B swears (or affirms, as the case may be) that he believes
and has good cause to believe (here set forth the facts and
information constituting the probable cause) that (here describe
the things to be searched for and the offense in relation thereto)
are concealed in or about the (here describe the house or place) of
C D, situated in the county of , in said state.
In accordance with Indiana Trial Rule 11, I affirm under the
penalties for perjury that the foregoing representations are true.
(Signed) Affiant Date
I.C. § 35-33-5-2(c). Indiana Trial Rule 11(B) provides that an oath is sufficient
if the subscriber simply affirms the truth of the matter to be
verified by an affirmation or representation in substantially the
following language:
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“I (we) affirm, under the penalties for perjury, that the foregoing
representation(s) is (are) true.
(Signed) ”
[9] Here, at the bottom of the search warrant application, just above Detective
Hadden’s electronic signature, the application states as follows: “I swear or
affirm under the penalties for perjury that the foregoing is true.” Exh. 1.
Petrelli does not dispute that the application states as much, but argues that the
oath is rendered ineffective because of a statement made elsewhere in the
document. That is, the following language appears on the first page of the
application: “I swear (affirm), under penalty of perjury as specified by IC 35-44-2-
1, that the foregoing and following representations in this document are true.”
Id. (emphasis added). Petrelli points out that the cited code section was
repealed in 2012 and its content, which criminalizes the act of perjury, now
appears in Indiana Code Section 35-44.1-2-1. Thus, according to Petrelli,
“Detective Hadden’s oath contains an obvious defect that cannot be undone.”
Appellant’s Br. at 13.
[10] We disagree. Detective Hadden made an oath—in two places—under the
penalty for perjury, and the reference to the outdated code section amounts to
mere surplusage. See Frink v. State, 568 N.E.2d 535, 536 (Ind. 1991) (refusing to
reverse for technical error where “the purpose of the oath requirement was
fulfilled”). We conclude that the probable cause affidavit satisfied the oath
requirements set forth in the United States Constitution, Indiana Constitution,
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and Indiana Code. Moreover, as Petrelli has alleged no other defect with the
search warrant or ensuing search, we hereby affirm the transfer order.
Conclusion
[11] The probable cause affidavit contained an adequate oath to support the issuance
of the search warrant; thus, the search that produced the $19,740 was lawful
and the confiscated money was properly subject to the transfer order.
[12] Affirmed.
Baker, J., and Altice, J., concur.
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