David B. Cartwright v. State of Indiana , 2015 Ind. App. LEXIS 107 ( 2015 )

Feb 25 2015, 10:16 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
W. Trent Van Haaften Gregory F. Zoeller
Van Haaften & Farrar, Attorneys At Law LLC Attorney General of Indiana
Mount Vernon, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David B. Cartwright, February 25, 2015
Appellant-Defendant, Court of Appeals Cause No.
65A01-1404-CR-170
v. Appeal from the Posey Circuit Court.
The Honorable James M. Redwine,
Judge.
State of Indiana, Cause No. 65C01-1303-FB-89
Appellee-Plaintiff.
Darden, Senior Judge
Statement of the Case
[1] Police officers executed a search warrant at David B. Cartwright’s home and
found evidence that caused the State to charge him with several
methamphetamine-related offenses. The trial court held a bench trial and
convicted Cartwright of manufacturing methamphetamine, a Class B felony,
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 1 of 21
Ind. Code § 35-48-4-1.1 (2006); possession of methamphetamine, a Class C
felony, Ind. Code § 35-48-4-6.1 (2006); possession of chemical reagents or
precursors with intent to manufacture a controlled substance, a Class C felony,
Ind. Code § 35-48-4-14.5 (2006); and maintaining a common nuisance, a Class
D felony, Ind. Code § 35-48-4-13 (2001).
[2] Cartwright raises one issue, which we restate as whether the trial court abused
its discretion in admitting evidence discovered as a result of the search warrant.
Concluding that there was insufficient probable cause to issue a search warrant,
and that the evidence was thus inadmissible, we reverse.
Facts and Procedural History
[3] On March 6, 2013, Detective Jeremy Fortune met with a confidential informant
who was incarcerated at the Posey County Jail. The informant had said that
he1 wanted to talk about “drug information in Posey County.” Tr. p. 6.
Detective Fortune did not know anything about the informant before the
meeting. The informant was being held because he had an active arrest warrant
for failure to appear in court in Illinois on an unidentified charge.
[4] Detective Fortune took an audiotaped statement from the informant. The
informant stated that a person he knew as “Dave” had manufactured
methamphetamine at a house in rural Posey County. Appellant’s App. p. 31.
1
The record does not identify the informant’s gender. We refer to the informant as “he.”
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 2 of 21
The informant explained that he knew of Dave’s activities because he had
purchased methamphetamine from Dave “within the last 3 or 4 months” and
had seen Dave making methamphetamine at that time. Id. at 31-32. In
addition, the informant stated that he had seen Dave trade methamphetamine
for money, pseudoephedrine, and a gun “in the past.” Id.
[5] The informant further told Detective Fortune that he had been in Dave’s house
and had seen a number of firearms and ammunition. He had also heard Dave
state a belief that he was being followed by police officers and threaten specific
officers with harm. The informant stated that Dave told him that if police tried
to arrest him, he would not “go down without a fight.” Id. at 34.
[6] The informant told the officer how methamphetamine is manufactured. He
also explained how Dave made methamphetamine and disposed of the waste
products. He further told Detective Fortune he believed that Dave had six or
eight regular buyers. In addition, he explained how to get to Dave’s house,
identified Dave’s house on a map drawn by Detective Fortune, and described
the interior of the house.
[7] The informant told Detective Fortune he had provided information about drug
activity to Greg Hannish, an Illinois police officer, “approximately 8 years
ago.” Id. Detective Fortune contacted Officer Hannish, who knew the
informant and said that the informant “had provided drug information to him
in the past.” Id.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 3 of 21
[8] Based upon the interview, Detective Fortune concluded the informant was
referring to Cartwright, who Fortune knew lived in rural Posey County. The
area pointed out on the map matched the location of Cartwright’s house. In
addition, the informant had stated that there was an RV parked in front of
Dave’s house, and a detective drove by Cartwright’s property and saw from the
road an RV parked in the front. Other than observing the RV, the officers did
not make any independent investigation of the situs and made no further
attempts to corroborate the informant’s statements regarding any ongoing
criminal activity.
[9] Some four years prior to the interview, Detective Fortune had been driving past
Cartwright’s home when he saw a “fog haze” coming from the home and
smelled ammonia and ether. Id. at 35. Fortune told the prosecutor what he
had observed, but the prosecutor declined to seek a search warrant at that time
for lack of sufficient probable cause.
[10] On March 7, 2013, Detective Fortune prepared a probable cause affidavit for a
search warrant. He included the information set forth above, except that he did
not state in the affidavit that the informant was incarcerated on an Illinois arrest
warrant at the time of the interview. Detective Fortune described his extensive
training and experience in investigating methamphetamine manufacturing and
explained what, in his experience, one would likely find at a location where
methamphetamine is being manufactured.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 4 of 21
[11] Detective Fortune further stated that, in his opinion, the informant was credible
because “given the information [the informant] has provided and given the fact
that the description provided by [the informant] for the driving route to ‘Dave’s’
home was known by your affiant to be an accurate description for traveling to
Dave or David Cartwright’s home.” Id. at 41.
[12] The court issued a search warrant for Cartwright’s property. Detective Fortune
and other officers executed the warrant and found an active methamphetamine
lab in Cartwright’s house. They also found digital scales, a glass pipe, and
firearms. Officers found a burn pile on Cartwright’s property that contained
stripped out battery casings. In addition, officers searched Cartwright’s garage
and found numerous empty boxes that had contained pseudoephedrine-based
pills. They also found a plastic bag that contained methamphetamine residue.
Their search of the house yielded only $79 in currency.
[13] The officers arrested Cartwright at his house and read him his Miranda rights.
Next, the officers took him to jail. During the trip, he acknowledged that he
was manufacturing methamphetamine.
[14] At the jail, Cartwright signed a waiver of his Miranda rights and submitted to a
recorded interview with the officers. He again acknowledged that he
manufactured methamphetamine in his house. He also explained what stage of
the process he was in at the time the police arrived. In addition, he described
how he was using various items and chemicals in the manufacturing process.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 5 of 21
Cartwright stated that he made and used methamphetamine to mitigate his
back pain. He denied manufacturing methamphetamine to sell to others.
[15] The State charged Cartwright with the offenses described above, plus
possession of marijuana. Cartwright filed a motion to suppress all evidence
obtained as a result of the search warrant. The court denied Cartwright’s
motion after a hearing.
[16] Cartwright waived his right to a jury trial. At the bench trial, he raised a
continuing objection to the admission of evidence obtained from the execution
of the search warrant. The State submitted testimony and photographs
describing the methamphetamine lab in Cartwright’s house, his signed waiver
of his Miranda rights, and the transcript of his interview, among other evidence.
Next, the State dismissed the charge of possession of marijuana. The court
determined that Cartwright was otherwise guilty as charged and sentenced him
accordingly. This appeal followed.
Discussion and Decision
[17] Cartwright argues that the trial court erred in denying his motion to suppress.
Because Cartwright appeals after a completed trial, the question of whether the
trial court erred in denying the motion is no longer viable. Reinhart v. State, 930
N.E.2d 42, 45 (Ind. Ct. App. 2010). Instead, the issue is more appropriately
framed as whether the trial court abused its discretion when it admitted the
evidence at trial. Id. When we review a trial court’s ruling on the admissibility
of evidence resulting from an allegedly illegal search, we do not reweigh the
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 6 of 21
evidence, and we consider conflicting evidence most favorable to the trial
court’s ruling. Id.
[18] Cartwright claims that all of the evidence resulting from the search of his house
is inadmissible because there was no probable cause to issue the search warrant
in the first place. The Fourth Amendment to the United States Constitution
provides:
The 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.
[19] The text of article I, section 11 of the Indiana Constitution contains nearly
identical language. Indiana has codified these constitutional principles at
Indiana Code section 35-33-5-2 (2005), as follows:
no warrant for search or arrest shall be issued until there is filed with
the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for;
or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the
affiant believes and has good cause to believe that:
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 7 of 21
(A) the things as are to be searched for are there concealed; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or
information based on hearsay, constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) contain reliable information establishing the credibility of the
source and of each of the declarants of the hearsay and establishing
that there is a factual basis for the information furnished; or
(2) contain information that establishes that the totality of the
circumstances corroborates the hearsay.
[20] In deciding whether to issue a search warrant, the 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. Hayworth
v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The duty of the reviewing
court, which for these purposes includes both the trial court ruling on the
motion to suppress and the appellate court, is to determine whether the
magistrate had a substantial basis for concluding that probable cause existed.
Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997). We review the trial court’s
substantial basis determination de novo, but we afford significant deference to
the magistrate’s determination. Brown v. State, 905 N.E.2d 439, 444 (Ind. Ct.
App. 2009). We consider only the evidence presented to the issuing magistrate
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 8 of 21
and not additional justifications or facts presented after the search. Jaggers, 687
N.E.2d at 182.
[21] The parties’ dispute focuses almost entirely upon the credibility of the
confidential informant because the crucial portion of Detective Fortune’s
probable cause affidavit is based on the informant’s hearsay statements and
lacks any independent and corroborating investigation by law enforcement. An
affidavit based on hearsay must contain reliable information establishing the
informant’s credibility and a factual basis for the hearsay statements or
information that, in the totality of the circumstances, corroborates the hearsay.
Ind. Code § 35-33-5-2(b). Uncorroborated hearsay from a source whose
credibility is itself unknown, standing alone, cannot support a finding of
probable cause to issue a search warrant. Jaggers, 687 N.E.2d at 182 (citing
Illinois v. Gates, 462 U.S. 213, 227, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).
[22] The trustworthiness of hearsay for purposes of proving probable cause can be
established in a number of ways, including demonstrating: (1) the informant
has given correct information in the past; (2) independent police investigation
corroborates the informant’s statements; (3) some basis for the informant’s
knowledge is shown; or (4) the informant predicts conduct or activities by the
suspect that are not ordinarily easily predicted. Methene v. State, 720 N.E.2d
384, 388 (Ind. Ct. App. 1999).
[23] Cartwright argues that the probable cause affidavit failed to establish the
informant’s credibility. We agree. The affidavit does not indicate that the
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 9 of 21
informant gave correct information in the past. At the time of the issuance of
the search warrant, the affidavit states that the informant provided “drug
information” to an Illinois police officer eight years prior to the interview, but
there is no explanation of whether the information was correct, accurate, or had
led to any arrests and convictions. At the suppression hearing, Detective
Fortune later recalled that the informant’s information had resulted in an arrest
in Illinois, but we do not consider supporting evidence that is offered after the
warrant has been issued and acted upon. Jaggers, 687 N.E.2d at 182.
[24] In addition, the affidavit does not include independent police investigation that
adequately corroborates the informant’s statements. The police confirmed that
the informant adequately described the location of Cartwright’s house and that
there was an RV in Cartwright’s front yard. However, those facts are readily
available to the general public. See Hayworth, 904 N.E.2d at 696 (independent
investigation inadequate to establish informant’s credibility where investigation
corroborated only publicly available facts).
[25] The State notes that Detective Fortune had encountered sights and odors
consistent with methamphetamine manufacturing at Cartwright’s property
some four years prior to the interview with the informant and asserts that these
observations corroborate the informant’s statements. However, our review of
the record reveals that Detective Fortune’s request for a search warrant four
years prior was rejected by the prosecutor for lack of probable cause. We
further note that there is no evidence that he attempted to conduct an
independent investigation to substantiate the allegations of odor that he
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 10 of 21
observed. Thus, we find that his four-year-old observations are stale and do not
corroborate the informant’s information. See State v. Haines, 774 N.E.2d 984,
990 (Ind. Ct. App. 2002) (informant’s testimony that he purchased cocaine at
defendant’s home two to six weeks prior to probable cause hearing was stale
information that could not support a finding of probable cause), trans. denied.
[26] Regarding the third factor, showing the basis for the informant’s knowledge, the
affidavit establishes that the informant was generally familiar with the process
of manufacturing methamphetamine. However, there is nothing in the affidavit
to establish the informant’s knowledge of Cartwright’s activities other than the
informant’s own statements. Finally, the informant did not predict conduct or
activities by Cartwright that are not ordinarily easily predicted.
[27] The State contends that the informant’s credibility was established because his
admission of involvement in methamphetamine sales was a statement against
penal interest. A declaration against penal interest can furnish sufficient basis
for establishing the credibility of an informant, but the declaration must have
tended to subject the declarant to criminal liability such that a reasonable
person in the declarant’s position would not have made the statement unless
believing it to be true. Newby v. State, 701 N.E.2d 593, 599 (Ind. Ct. App.
1998).
[28] Here, the informant told Detective Fortune, and the affidavit stated, that the
informant had “purchased or obtained methamphetamine” from Cartwright, at
Cartwright’s house, “within the last 3 or 4 months.” Appellant’s App. p. 31.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 11 of 21
The informant had paid Cartwright for methamphetamine and had on another
occasion given Cartwright boxes of pseudoephedrine-containing pills in
exchange for methamphetamine.
[29] The informant’s admission is not irrefutable evidence of criminal liability,
particularly because he had not been charged with a crime and the admission
was offered three to four months after the fact, without any independent
evidence. Indeed, Detective Fortune declined to arrest the informant after the
interview because he “didn’t have any evidence” of the informant’s alleged
admitted crimes, thus indicating that the detective believed that the informant’s
mere statements were insufficient to support a criminal charge. Tr. p. 33.
Furthermore, in the portion of the affidavit where Detective Fortune explained
why he believed the informant to be credible, Detective Fortune cited the
informant’s description of the location of Cartwright’s home, not the
informant’s admission of criminal activity, as of proof of reliability.
[30] Under these circumstances, a reasonable person in the informant’s position
could have concluded that, without any independent investigation or
corroborating evidence from law enforcement, he or she was unlikely to be
subjected to criminal liability for admitting to buying methamphetamine in the
past. Argumentative and to the contrary, a person in the informant’s position
could conclude that assisting in an Indiana methamphetamine investigation
might result in favorable treatment in the pending Illinois criminal matter. We
cannot conclude that the informant’s statements were sufficiently against his
penal interests to establish his credibility.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 12 of 21
[31] In the absence of proof of the informant’s credibility or corroboration under the
totality of the circumstances, the informant’s hearsay statements were
insufficient to establish probable cause, and the trial court should not have
issued the search warrant. See Hayworth, 904 N.E.2d at 697 (affidavit did not
establish probable cause for a search warrant where informant’s claims were
uncorroborated).
[32] Nevertheless, lack of probable cause does not automatically require the
suppression of evidence obtained during a search. Id. Indiana law provides:
(a) In a prosecution for a crime or a proceeding to enforce an
ordinance or a statute defining an infraction, 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.
(b) For purposes of this section, evidence is obtained by a law
enforcement officer in good faith if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon a determination of
probable cause by a neutral and detached magistrate, that is free from
obvious defects other than nondeliberate errors made in its
preparation, and that was reasonably believed by the law enforcement
officer to be valid; or
(B) a state statute, judicial precedent, or court rule that is later declared
unconstitutional or otherwise invalidated; and
(2) the law enforcement officer, at the time he obtains the evidence,
has satisfied applicable minimum basic training requirements
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 13 of 21
established by rules adopted by the law enforcement training board
under IC 5-2-1-9.
Ind. Code § 35-37-4-5 (1983).
[33] Courts applying the statutory good faith exception have concluded that the
good faith exception does not apply where:
(1) the warrant is based on false information knowingly or recklessly
supplied; (2) the warrant is facially deficient; (3) the issuing magistrate
is not detached and neutral; or (4) the affidavit or sworn testimony
upon which probable cause rests is so lacking in indicia of probable
cause as to render an official belief in the existence of the warrant
unreasonable.
Brown, 905 N.E.2d at 445 (quoting Hirshey v. State, 852 N.E.2d 1008, 1013-14
(Ind. Ct. App. 2006), trans. denied). An officer’s reliance on the magistrate’s
probable cause determination must be objectively reasonable. Id.
[34] In this case, there is no claim that the warrant was facially deficient or that the
issuing magistrate was not detached and neutral. Cartwright claims Detective
Fortune omitted material information from the affidavit, engaging in
“deliberate, reckless, or grossly negligent conduct.” Appellant’s Br. p. 18.
Specifically, Detective Fortune did not state in the affidavit that the informant
was incarcerated in the Posey County Jail on an Illinois arrest warrant.
Cartwright contends that this omission amounted to a misrepresentation that
may have affected the reviewing magistrate’s consideration of the informant’s
credibility.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 14 of 21
[35] Detective Fortune testified at the suppression hearing that he withheld the fact
of the informant’s incarceration not out of any intent to mislead, but rather out
of concern that the information would reveal the informant’s identity and place
him in danger. In any event, we conclude that the good faith exception is
inapplicable here because Detective Fortune’s affidavit is so lacking in indicia of
probable cause as to render an official belief in the existence of the warrant
unreasonable. The informant gave Detective Fortune information that was at
least three to four months old. The officers corroborated only facts that were
readily available to the general public, i.e., observing an RV parked at the
home. They did not attempt to confirm the informant’s claim of an ongoing
methamphetamine dealing operation by placing surveillance on Cartwright’s
property. In addition, Detective Fortune also relied on his stale four-year-old
prior observation of Cartwright’s home, which had been rebuffed by the
prosecutor for lack of probable cause. The officers’ reliance on a warrant issued
on essentially uncorroborated hearsay from an anonymous informant was
objectively unreasonable. See Jaggers, 687 N.E.2d at 186.
[36] In the absence of probable cause justifying a search warrant, the officers’ search
of Cartwright’s home violated his federal and state constitutional protections
against unreasonable search and seizure. Consequently, the trial court abused
its discretion in admitting evidence obtained as a result of the search. See id.; see
also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (search warrant
unsupported by probable cause where police did not independently corroborate
informant’s statements, so the subsequent search violated defendant’s federal
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 15 of 21
and state constitutional rights and the evidence was inadmissible). The
erroneously admitted evidence includes Cartwright’s incriminating statements
in the police car and the transcript of his post-arrest questioning at the jail,
because the statements were the fruit of his arrest, and being informed of his
Miranda rights prior to confessing in the police car and at the jail did not purge
the taint of the unconstitutional search. See, e.g. Clark v. State, 994 N.E.2d 252,
271 (Ind. 2013) (defendant’s confession to possession of marijuana was not
admissible where it was not an act of free will and did not purge the taint of
unlawful detention).
Conclusion
[37] We reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion.
[38] Reversed and remanded.
[39] Mathias, J., concurs.
[40] Baker, J., dissents.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 16 of 21
IN THE
COURT OF APPEALS OF INDIANA
David B. Cartwright, Court of Appeals Case No.
65A01-1404-CR-170
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Baker, Judge, dissenting.
[41] I respectfully dissent. I agree with the majority’s conclusion that the probable
cause affidavit failed to establish the CI’s credibility and, consequently, that
there was a lack of probable cause. I part ways with the majority, however, in
the application of the good faith exception.
[42] The good faith exception to the exclusionary rule was originally announced in
United States v. Leon, 468 U.S. 897 (1984). As explained by our Supreme Court,
Leon held that where police officers rely in objective good faith on a
warrant later found to be defective, so that suppression would not
further the exclusionary rule’s objective of deterring police misconduct,
the Fourth Amendment does not require that the evidence be
excluded. However, the Supreme Court cautioned in Leon that certain
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 17 of 21
police conduct would not qualify for the exception, including where
the warrant was based on an affidavit “so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable.”
Figert v. State, 686 N.E.2d 827, 831 (Ind. 1997) (quoting Leon, 468 U.S. at 923).
[43] In this case, Detective Fortune’s affidavit included the following attestations:
 Detective Fortune spoke with a CI, who reported that a person named
“Dave,” who lived in a farmhouse in northern Posey County, was
involved in the manufacture of methamphetamine.
 The CI reported that s/he had purchased methamphetamine from
“Dave” within the last three or four months.
 The CI reported that s/he had witnessed “Dave” trading
methamphetamine to other persons in exchange for boxes of
pseudoephedrine pills, money, and a muzzle loader firearm.
 The CI reported “Dave’s” farmhouse contained assault rifles, shotguns,
and handguns.
 The CI reported that s/he personally observed “Dave” manufacture
methamphetamine in the barn and farmhouse.
 The CI also reported that “Dave” kept anhydrous ammonia, a common
ingredient used to manufacture methamphetamine, on his property.
 The CI confirmed to Detective Fortune that s/he had experience in the
illegal manufacture of methamphetamine and was familiar enough with
the process to be able to identify it.
 The CI stated that s/he had provided useful information regarding drug
activity to Officer Greg Hannish in southern Illinois approximately eight
years ago. Detective Fortune contacted Officer Hannish, who confirmed
the CI’s statement.
 The CI drew a general map of the area leading to “Dave’s” home and a
map of the layout of the property itself.
 Detective Fortune was familiar with Cartwright, who lives in a
farmhouse in northern Posey County. The location of Cartwright’s
residence is consistent with the map drawn by the CI. The layout of
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 18 of 21
Cartwright’s property, including building locations, is consistent with the
map drawn by the CI.
 Approximately four years earlier, Detective Fortune was driving in the
area of Cartwright’s residence when he observed a “fog haze” emanating
from the home and could smell anhydrous ammonia. At that time, the
prosecutor declined to seek a search warrant based on that information.
Appellant’s App. p. 22-42. I agree that there was insufficient investigation done
to establish the credibility of the CI. I also agree that each of these alleged facts,
taken alone, does not establish probable cause. But I believe that the totality of
these allegations easily exceed the threshold described by the United States
Supreme Court in Leon. In other words, I do not believe that this affidavit is
“so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468 U.S. at 923.2
[44] This conclusion does not end the inquiry, however, inasmuch as Detective
Fortune was both the affiant and one of the police officials who executed the
search warrant. Under certain circumstances, this overlap can render the good
faith exception inapplicable. In Figert, our Supreme Court considered precisely
this issue: “[b]ecause the same officer here filed the probable cause affidavit
and participated in the execution of the warrant based on the affidavit, we must
decide whether the officer’s reliance on the warrant was entirely unreasonable
2
The fact that Detective Cartwright omitted the information that the CI was currently incarcerated in the
Posey County Jail does not change my analysis. The detective was merely withholding that information in
an attempt to protect the identity and safety of the CI, which seems entirely prudent given the threatening
statements made by Cartwright in the CI’s presence.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 19 of 21
notwithstanding the magistrate’s decision to issue the warrant.” 686 N.E.2d at
831-32.
[45] The Figert Court noted that “[m]ost Indiana appellate decisions upholding the
admission of evidence under the good faith exception involved reliance on
hearsay whose credibility was later found to be inadequately established.” Id. at
832. In Figert, however, “the officer obtained the warrant primarily based on
his own observations and firsthand knowledge.” Id. Under those
circumstances, “the officer’s own opinion . . . cannot be relied on to authorize a
search not supported by the facts.” Id. at 833. Consequently, the Figert Court
found that the officer’s reliance was not objectively reasonable under Leon, and
the good faith exception was inapplicable.
[46] Here, as opposed to Figert, Detective Fortune was relying primarily on
“technically flawed hearsay . . . that in hindsight might make reliance on the
warrant objectively reasonable.” Id. at 832. The vast majority of allegations
supporting the request for a search warrant rested solely on the CI. And while I
ultimately agree that the credibility of the CI was insufficiently established such
that the hearsay amounted to probable cause, Detective Fortune’s reliance on
the CI’s allegations and the warrant itself were objectively reasonable. As a
result, the fact that Detective Fortune both signed the affidavit and helped to
execute the warrant do not render the good faith exception inapplicable. See
United States v. Kinison, 710 F.3d 678, 686-87 (6th Cir. 2013) (holding that where
the government was not relying on subjective knowledge of the affiant, the fact
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 20 of 21
that affiant also helped to execute the warrant does not prevent application of
the good faith exception).
Because I believe that this warrant was executed in good faith, notwithstanding
the lack of probable cause, I would affirm the trial court’s admission of the
evidence seized in the execution of that warrant.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 21 of 21