Brandon McGrath v. State of Indiana

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
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