Troy Bell v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 12 2018, 10:04 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Blair Todd Curtis T. Hill, Jr.
Law Office of Blair Todd Attorney General of Indiana
Winamac, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Bell, June 12, 2018
Appellant-Defendant, Court of Appeals Case No.
75A03-1710-CR-2554
v. Appeal from the Starke Circuit
Court
State of Indiana, The Honorable Kim Hall, Judge
Appellee-Plaintiff. Trial Court Cause No.
75C01-1604-F2-4
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Troy Bell was convicted of dealing in methamphetamine,
a Level 2 felony; maintaining a common nuisance, a Level 6 felony; and
possession of paraphernalia, a Class C Misdemeanor. Bell also pleaded guilty
to possession of methamphetamine, a Level 3 felony, and the trial court
sentenced Bell to an aggregate term of twenty-five years in the Indiana
Department of Correction. Bell now appeals his convictions, raising only one
issue for our review which we restate as whether the trial court abused its
discretion in admitting evidence. Concluding the trial court did not abuse its
discretion, we affirm.
Facts and Procedural History
[2] At approximately 9:00 a.m. on April 14, 2016, Detective Robert Olejniczak of
the Starke County Sheriff’s Office, in the company of other officers, executed a
search warrant on the residence Bell shared with his wife, Natasha. Among
other evidence, the search warrant produced:
dime-sized bags with white residue, a gold grinder with a green
leafy substance in it, glass smoking devices, a television screen
with live video surveillance of the outside of the residence, a scale
with white residue on it, an unmarked pill bottle with a green
leafy substance in it, and two plastic bags containing 223.35
grams of crystal methamphetamine. The total street value of the
methamphetamine found in the two bags was approximately
$23,000 to $24,000.
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Brief of Appellee at 9-10.
[3] Thereafter, Bell was charged with dealing in methamphetamine, a Level 2
felony; possession of methamphetamine, a Level 3 felony; maintaining a
common nuisance, a Level 6 felony, two counts of possession of a controlled
substance, both Class A misdemeanors; possession of marijuana, a Class B
misdemeanor; and possession of paraphernalia, a Class C misdemeanor.
[4] On September 21, 2016, Bell filed a motion to quash the search warrant and
suppress evidence, alleging the search warrant lacked probable cause under
Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment of
the United States Constitution. The affidavit of probable cause underlying the
search warrant provided:
Robert Olejniczak swears and affirms, under the penalties of
perjury, that he believes and has good cause to believe that the
following are facts and information relevant to the determination
of the existence of probable cause for the issuance of a search
warrant.
1. I am the Chief Detective with the Starke County
Sheriff’s Office.
2. I have received information from two different
sources since September 2015 that Troy and
Natasha Bell have been selling illegal drugs out of
the residence located [in] Starke County, Indiana.
3. The information I received states that Troy goes to
South Bend to pick up Heroin and also states that at
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their residence it smells like they are cooking
methamphetamine. It states that there is traffic in
and out of the residence once Troy gets back.
4. My source stated, on one occasion Troy and
Natasha were fighting outside and yelled “I gave
you $500 to buy drugs, where are my drugs”.
5. It is believed that Troy is involved with the Aryan
Brotherhood.
6. I have personally seen subjects frequenting the
residence but have not been able to stop any
vehicles or subjects leaving.
7. On February 4, 2016, Starke County Probation drug
tested Natasha Long and her results were positive
for Methamphetamine.
8. On April 4, 2016, I conducted a trash pull from the
residence. In the trash was several dime sized plastic
bag [sic] with residue, glass smoking devices with
residue, empty scale box, burnt foil, prescription pill
bottles with Troy Bell’s name, mail with Natasha
Long [sic] name on it, 223 bullet, 22 bullet and a
spent 45 round.
9. The pipes and a small plastic bag with residue were
tested. It [sic] field tested positive for
methamphetamine.
10. On April 6, 2016, I was advised by a neighbor that
there has been traffic at the residence during the
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night time hours. They stated that people are
staying for only a few minutes and leaving.
11. Due to my training and experience this is known to
be associated with a subject selling illegal narcotics.
12. On April 6, 2016, I also was contacted by Indiana
State Police Officer Bikowski with the Bremen Post
and he stated that he received information from
Brian Collins that he has known Bell since he was a
kid and he is a major drug dealer.
13. On April 7, 2016, I was advised that Natasha was
on Probation and is possibly on Home Detention. I
called Starke County Community Corrections and
they advised me that she was on pretrial home
detention.
14. On April 11, 2016, I conducted a second trash pull
from the residence. In the trash was mail belonging
to Troy Bell, two glass smoking pipes with residue,
a light bulb with one end removed with white
residue inside it, foil and a pen tube with white
residue.
15. I then took the evidence to the jail and conducted
field tests on the items. The items tested positive for
Methamphetamine.
16. On April 13, 2016, I was contacted by Hamlet
Officer Kholes. He stated that he received
information that Natasha was packaging
methamphetamine during the day and going to a
hotel at night to manufacture it.
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17. I believe that the statements of the Hamlet Officer
Kholes, Starks County Probation, Indiana State
Trooper Bikowski, and Brian Collins are truthful
and creditable.
18. Under the totality of the circumstances I believe that
probable cause exists to search the residence, . . .,
burn pits, trash and curtilage located [in] Starke
County, Indiana.
19. I respectfully request a search warrant be issued
....
Appellant’s Appendix, Volume II at 30-31. After a hearing on October 10,
2016, the trial court denied Bell’s motion.
[5] On July 25, 2017, Bell pleaded guilty to possession of methamphetamine, a
Level 3 felony, in exchange for the State dismissing two counts of possession of
a controlled substance, both Class A misdemeanors. During a jury trial on the
remaining charges conducted on July 26-27, Bell objected to the introduction of
the evidence found in the residence during the execution of the search warrant.
Following the State’s presentation of evidence, the trial court granted Bell’s
motion for judgment on the evidence regarding possession of marijuana, a
Class B misdemeanor, but denied the same motion for maintaining a common
nuisance, a Level 6 felony. At the conclusion of the trial, the jury found Bell
guilty of dealing in methamphetamine, a Level 2 felony; maintaining a
common nuisance, a Level 6 felony; and possession of paraphernalia, a Class C
misdemeanor. The trial court later imposed an aggregate sentence of twenty-
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five years to be executed in the Indiana Department of Correction. Bell now
appeals.
Discussion and Decision
I. Standard of Review
[6] Generally, we review a trial court’s ruling on the admissibility of evidence for
an abuse of discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005).
Where, as here, a search warrant was sought and granted, the search warrant is
presumptively valid and the defendant bears the burden of overcoming such
presumption. Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003). Our supreme
court explained in State v. Spillers that:
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 (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. 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. A reviewing court
for these purposes includes both the trial court ruling on a motion
to suppress and an appellate court reviewing that decision.
Although we review de novo the trial court’s substantial basis
determination, we nonetheless afford significant deference to the
magistrate’s determination as we focus on whether reasonable
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inferences drawn from the totality of the evidence support that
determination.
847 N.E.2d 949, 953 (Ind. 2006) (some citations and quotations omitted).
II. Search Warrant
[7] On appeal, Bell argues that the trial court erroneously admitted evidence
obtained from the execution of a search warrant lacking probable cause.1
[8] The Fourth Amendment to the United States Constitution provides, “[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, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” Article 1, Section 11 of the Indiana Constitution contains nearly
identical language as the Fourth Amendment but “interpretations and
applications vary between them.” Holder v. State, 847 N.E.2d 930, 935 (Ind.
2006).
[9] Trash searches are one of the ways that Article 1, Section 11 has been
interpreted to provide broader protections than the Fourth Amendment. In the
1
By pleading guilty, Bell has waived any challenge to his conviction of possession of methamphetamine, a
Level 3 felony. It is well-established that a defendant who pleads guilty forfeits a “plethora of substantive
claims and procedural rights,” and a defendant cannot go on to challenge pre-trial orders on appeal. Alvey v.
State, 911 N.E.2d 1248, 1250-51 (Ind. 2009) (holding a defendant cannot plead guilty and later challenge the
trial court’s denial of a pre-trial motion to suppress).
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oft-cited case of Litchfield v. State, 824 N.E.2d 356, 363 (Ind. 2005), our supreme
court held that for a search of a suspect’s trash to be reasonable under Article 1,
Section 11, the search must be based on reasonable suspicion, despite no such
Fourth Amendment prohibition. Herein lies the basis of Bell’s appeal: Bell
alleges that the search warrant affidavit “contained a two tiered basis for
attempting to establish probable cause,” in which the first portion of the
affidavit contained “multiple statements of hearsay” used to demonstrate
reasonable suspicion to “justify two trash pulls from Bell’s residence.” Brief of
Defendant-Appellant at 8-9. Because police failed to corroborate the hearsay
information, Bell argues, police lacked the requisite reasonable suspicion to
conduct the trash searches at his residence, and therefore the “trash pull
evidence” should not have been considered by the trial court in its
determination of probable cause. Id. at 9.
[10] While much of our jurisprudence regarding hearsay information in search
warrant affidavits considers whether the information constituted probable
cause, see, e.g., Scott v. State, 883 N.E.2d 147, 154 (Ind. Ct. App. 2008), here,
Bell alleges that the hearsay information was insufficient to constitute
reasonable suspicion—a lower standard. See Clark v. State, 994 N.E.2d 252, 261
(Ind. 2013). In turn, the State admits the hearsay information was derived from
“anonymous hearsay sources,” but argues that the reliability of the information
was established through independent police investigation. Br. of Appellee at
18. We agree with the State.
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[11] Probable cause to search a 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.” Helsley v. State, 809 N.E.2d
292, 295 (Ind. 2004). In Alabama v. White, the United States Supreme Court
explained:
Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or
content than that required to establish probable cause, but also in
the sense that reasonable suspicion can arise from information
that is less reliable than that required to show probable cause.
Adams v. Williams, [407 U.S. 143 (1972),] demonstrates as much.
We there assumed that the unverified tip from the known
informant might not have been reliable enough to establish
probable cause, but nevertheless found it sufficiently reliable to
justify a Terry stop. [Id. at 147]. Reasonable suspicion, like
probable cause, is dependent upon both the content of
information possessed by police and its degree of reliability.
Both factors—quantity and quality—are considered in the
“totality of the circumstances—the whole picture,” that must be
taken into account when evaluating whether there is reasonable
suspicion. Thus, if a tip has a relatively low degree of reliability,
more information will be required to establish the requisite
quantum of suspicion than would be required if the tip were
more reliable.
496 U.S. 325, 330 (1990) (some citations omitted).
[12] Here, the search warrant affidavit stated that police had “received information
from two different sources since September 2015 that [Bell] and Natasha Bell
have been selling illegal drugs out of the residence . . .” Appellant’s App., Vol.
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II at 30. The “sources” explained that Bell would frequent South Bend in order
to retrieve heroin, traffic in and out of the residence would increase upon his
return, the residence “smells like they are cooking methamphetamine,” and that
on one occasion, Bell and Natasha were heard outside fighting when one yelled
“I gave you $500 to buy drugs, where are my drugs[?]” Id.
[13] As the supreme court explained in Alabama v. White, the “totality of the
circumstances—the whole picture,” must be taken into account when
evaluating reasonable suspicion. 496 U.S. at 330. Although the sources may
have been known to Detective Olejniczak, he makes no such allegation in the
search warrant affidavit. Therefore, we find it appropriate, as the State admits
on appeal, State’s Br. of Appellee at 18, to view the hearsay information as
originating from anonymous sources and, as is well-known in criminal law, “an
anonymous tip alone is not likely to constitute” reasonable suspicion. Lampkins
v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Alabama, 496 U.S. at 329-30).
However, we note that because there was more than one source and both
sources reported having observed the criminal activity firsthand, the tips are
entitled to “greater weight than might otherwise be the case.” McGrath v. State,
95 N.E.3d 522, 528 (Ind. 2018).
[14] Nevertheless, in Sellmer v. State, our supreme court explained that in order for
an anonymous tip to constitute reasonable suspicion, at least two conditions
must be met:
First, significant aspects of the tip must be corroborated by the
police. Such corroboration requires that an anonymous tip give
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the police something more than details regarding facts easily
obtainable by the general public to verify its credibility. Second,
an anonymous tip, if it is to be considered reliable enough to
constitute reasonable suspicion to conduct an investigatory stop,
must also demonstrate an intimate familiarity with the suspect’s
affairs and be able to predict future behavior.
842 N.E.2d 358, 361 (Ind. 2006) (citation and quotations omitted).
[15] Here, the anonymous sources displayed familiarity with Bell, explained that his
residence “smell[ed] like they [were] cooking methamphetamine,” and
described his behavior—specifying that Bell retrieved heroin from South Bend
and that traffic in and out of his residence increased upon his return.
Appellant’s App., Vol. II at 30. Thereafter, Detective Olejniczak undertook
investigative steps to corroborate the information, first contacting Natasha’s
probation officer, learning that Natasha had tested positive for
methamphetamine, and then conducting surveillance and observing “subjects
frequenting the residence.” Id.
[16] In turn, Bell alleges that the “facts provided by [Detective Olejniczak] in an
attempt to corroborate the anonymous tips suffered from a lack of timeliness.”
Br. of Defendant-Appellant at 11. Although “[i]t is a fundamental principle of
search and seizure law that the information given to the magistrate or judge in
the application for a search warrant must be timely,” Breitweiser v. State, 704
N.E.2d 496, 499 (Ind. Ct. App. 1999), Bell’s argument misunderstands the
relevant standard. Br. of Defendant-Appellant at 10. Bell cites only one case,
Ashley v. State, 241 N.E.2d. 264, 368 (Ind. 1968), which involved probable
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cause, and alleges that stale information, such as Natasha’s two-month old
positive methamphetamine test, was insufficient to constitute probable cause.
However, as is the premise of Bell’s appeal, the hearsay information and its
corroboration need only show reasonable suspicion for the subsequent trash
searches, not probable cause for the issuance of the search warrant.
Accordingly, we view the evidence under this lesser standard, and “staleness of
the information must be judged by the facts and circumstances of each case.”
Breitweiser, 704 N.E.2d at 499. On the facts presented here, we do not believe
the information obtained by Detective Olejniczak was too “stale” to provide
corroboration of the underlying hearsay information. See Scott v. State, 883
N.E.2d 147, 155 (Ind. Ct. App. 2008) (noting that a detective smelling ether at a
residence within the proceeding two-month period corroborated details of
hearsay information).
[17] Therefore, mindful that we are to view the facts under the totality of the
circumstances, we conclude that Detective Olejniczak possessed reasonable
suspicion to conduct searches of Bell’s trash. See Love v. State, 842 N.E.2d 420,
425 (Ind. Ct. App. 2006) (concluding anonymous tip with independent indicia
of reliability and corroboration constituted reasonable suspicion for the purpose
of a trash search). As such, and in the absence of argument that the probable
cause affidavit lacked probable cause when including the fruits thereof, Bell has
failed to overcome the presumption the search warrant is valid.
Conclusion
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[18] Concluding the trial court did not abuse its discretion in admitting evidence
obtained as the result of the search warrant, we affirm.
[19] Affirmed.
Najam, J., and Altice, J., concur.
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