Brannon v. State , 2004 Ind. App. LEXIS 24 ( 2004 )

OPINION

MATHIAS, Judge.

Nicholas R. Brannon ("Brannon") brings this interlocutory appeal from the Parke Circuit Court's denial of his motion to suppress. He raises one issue, which we restate as whether the trial court properly denied his motion to suppress when the search warrant was issued by the judge of a neighboring county. Concluding that the judge who issued the search warrant had the jurisdiction to do so, we affirm.

Facts and Procedural History

On June 28, 2002, after receiving information that Brannon was manufacturing methamphetamine, Deputy Justin Coles ("Deputy Coles") of the Parke County Sheriff's Department sought a search warrant for Brannon's residence in Montezuma, Parke County, Indiana. Apparently, the Parke Circuit Court judge was unavailable that day, and no judge pro tempore had been appointed. Deputy Coles's probable cause affidavit and the search warrant were therefore faxed from the Parke County Prosecutor's office to Judge Bruce V. Stengel ("Judge Stengel") of the neighboring Vermillion Cireuit Court. Judge Stengel signed the search warrant and faxed it back later that morning. Deputy Coles executed the warrant the same day and seized evidence of methamphetamine manufacturing from Brannon's residence.

On July 3, 2002, Brannon was charged with twelve counts relating to the manufacture and dealing of methamphetamine. Brannon filed a motion to suppress the evidence found during the execution of the search warrant. Following a suppression hearing on February 21, 2003, the trial court denied Brannon's motion to suppress. Brannon then requested that the trial court certify its order denying his motion to suppress for interlocutory appeal. The trial court granted his request, and on May 283, 2008, our court accepted jurisdiction of this interlocutory appeal.

Standard of Review

When we review a trial court's ruling on a motion to suppress, we review the record for substantial evidence of probative value to support the trial court's determination. Willsey v. State, 698 N.E.2d 784, 789 (Ind.1998). We do not reweigh the evidence or reassess the credibility of witnesses. We resolve conflicting evidence in favor of the trial court and consider any substantial uncontroverted evidence. Id. However, where the issue presented on appeal is a question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997).

Discussion and Decision

Initially, we note that although some jurisdictions limit magistrates to their own territorial jurisdiction with regard to issuance of search warrants, our controlling statute specifically states that a search warrant issued by a court of record may be executed "anywhere in the state."¹ A judge may also issue a search warrant if the judge receives the affidavit in writing via fax.² The applicant for a warrant must "transmit to the judge [via fax] a copy of a warrant form completed by the applicant." ³ See also Indiana Code § 35-83-5-3 (1998)⁴

Brannon argues that Judge Stengel lacked the authority to issue a "Parke County [wlarrant." Br. of Appellant at 8. While the charges against Brannon were filed in Parke County, the warrant issued by Judge Stengel as the Vermillion Cireuit judge is nonetheless valid. See Clark v. State, 269 Ind. 316, 380 N.E.2d 550, 553 (1978) (jurisdiction to issue a warrant is not one and the same as jurisdiction over the case in which the evidence sought will be used). Brannon does not assert that there are any other defects in the warrant, and contends that if Judge Stengel had just issued the warrant from the Vermillion Cireuit Court, rather than the Parke Cireuit Court, there would be no question as to the warrant's validity.

The existence of probable cause for issuance of a search warrant is a judicial determination, not a ministerial one, to be made by a judge or a magistrate. Bigler v. State, 602 N.E.2d 509, 517 (Ind.Ct.App.1992), trans. denied. The issuing judge or magistrate must meet two tests: he or she must be neutral and detached, and he or she must be capable of determining whether probable cause exists for the requested search warrant. Id.

Brannon makes no argument that Judge Stengel was not neutral or detached, or that he was incapable of making the probable cause determination. Indeed, essentially all that Brannon claims is that Judge Stengel failed to cross out "Parke County" and write in "Vermillion County" on the warrant form faxed to him. Such a minor technical anomaly should not invalidate an otherwise valid search warrant. See State v. Smith, 562 N.E.2d 428, 429-380 (Ind.Ct.App.1990) (holding that although the approved Indiana search warrant form contains a line for the issuing judge's or magistrate's signature, the signature requirement is ministerial; therefore, failure of the issuing judge or magistrate to sign the search warrant does not invalidate the warrant, provided the issuing judge or magistrate found probable cause existed and intended to issue the warrant).

Here, Judge Stengel found that probable cause existed for the search of Bran-non's residence and intended to issue the search warrant. The mere fact that the search warrant form faxed to him was a Parke Cireuit Court form does not make the probable cause determination and the search warrant invalid.

Further, we note that in the analogous situation where a party seeks an injunction or temporary restraining order and the circuit court judge is absent, any circuit court judge of an adjoining circuit may hear and determine the granting of a temporary injunction or restraining order. Indiana Code § 34-26-1-3 (1999). Similarly, when a circuit court judge is unavailable, and no judge pro tempore has been appointed, there is no reason why the judge of a neighboring county may not review the probable cause affidavit and issue the search warrant.

Conclusion

Concluding that the Vermillion Circuit Court judge had jurisdiction to issue the search warrant of Brannon's residence in Parke County, and that the search warrant was valid, we affirm the trial court's denial of Brannon's motion to suppress.

Affirmed.

NAJAM, J., concurs. ROBB, J., dissents with separate opinion.

1 . Ind.Code § 35-33-5-7 (1998).

2 . Ind.Code § 35-33-5-8(a)(3) (1998).

3 . Ind.Code § 35-33-5-8(c) (1998).

4 . Ind.Code § 35-33-5-3 provides:

A search warrant in substantially the following form shall be sufficient:

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To (herein insert the name, department or classification of the law enforcement officer to whom it is addressed) You are authorized and ordered, in the name of the State of Indiana, with the necessary and proper assistance to enter into or upon (here describe the place to be searched), and there diligently search for (here describe property which is the subject of the search). You are ordered to seize such property, or any part thereof, found on such search. Dated this ___ day of hour of ___ _M. , 19, at the

(Signature of Judge) Executed this ___. day of the hour of ___ _M. , at

(Signature of Law Enforcement Officer)