State of Indiana v. Ryan Stabler (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 12 2018, 9:30 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
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Derick W. Steele
Attorney General of Indiana Deputy Public Defender
Kokomo, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, July 12, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CR-166
v. Appeal from the Howard Superior
Court
Ryan Stabler, The Honorable George A.
Appellee-Defendant Hopkins, Judge
Trial Court Cause No.
34D04-1709-F4-162
Baker, Judge.
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[1] The State appeals the trial court’s suppression of evidence found during a
search of Ryan Stabler’s residence, arguing that the trial court erred by
suppressing the evidence. Finding that the trial court erred, we reverse and
remand.
Facts
[2] Before September 19, 2017, the Kokomo Police Department had received
complaints about illegal narcotics being sold from Stabler’s residence. On
September 19, 2017, the manager of Mac’s Market, which is adjacent to
Stabler’s residence, reported “a large amount of traffic in and out of the rear of
that residence” and that “people would exit the rear of that residence . . . and
they would go and use [the store’s] bathroom and leave needles behind.” Tr. p.
5.
[3] At approximately 6:20 p.m. that day, Kokomo Police Officer Adam Martin and
other officers began surveilling Stabler’s residence. They monitored Stabler’s
residence for a few hours, during which they made contact with three
individuals after they left the residence.
[4] The officers observed Brett Ray enter the rear of the residence and exit within
minutes. Ray “was stumbling all over the alley.” State’s Ex. 1. As Officer
Martin exited his patrol car, Ray “immediately stuck his hands in his front
pocket and pulled it out very quickly” and turned away from the officer. Id.
Ray said he had been at Mac’s Market and was walking home. After the officer
told him that he was free to go, the officer walked to where he had observed
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Ray stick his hands in his pockets. Officer Martin saw a small clear plastic bag
that had a gray rock-like substance in it on the ground next to his car; the
substance was found to be heroin. Officer Martin then caught up with Ray and
arrested him. Ray admitted that he threw the heroin on the ground when he
saw the officer approach and that he had just come from Stabler’s house, where
he had bought fifty dollars’ worth of heroin from Stabler.
[5] Shortly thereafter, a pickup truck arrived at the house and left soon after.
Officer Martin initiated a traffic stop on the vehicle. Jeremy Mitchell, the
driver, immediately put something in his mouth and took a drink. Officer
Martin suspected it was drugs. As a result of the traffic stop, Mitchell was
arrested for possession of a syringe. He admitted that he used heroin and had
just left Stabler’s house.
[6] Following that stop, Officer Martin initiated another traffic stop on a vehicle
that had stopped at Stabler’s house for a few minutes. During the stop, Dustin
Castleman, the passenger, ran from the vehicle. The officer caught him and
arrested him on active warrants for possession of a controlled substance.
[7] Based on this investigation, Officer Martin completed a search warrant request
and affidavit, seeking to search Stabler’s home and a vehicle. The affidavit
stated that Officer Martin and the other officers
began doing active surveillance on the residence of 1816 S
Courtland in reference to numerous complaints of illegal
narcotics being sold from this residence by Ryan Stabler . . . .
The manager of Macs market [sic] which is directly to the east of
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this residence said there is a heavy amount of foot traffic coming
from the rear of the residence and the people use there [sic]
restrooms and leave [numerous] amounts of syringes in the
restroom.
Id. The affidavit then described Officer Martin’s interactions with Ray,
Mitchell, and Castleman. The search warrant described the property as
1816 S Courtland Kokomo, [] IN 46902, described as a Tan 1
story Tan sided house with dark colored shingles and the front
door facing West as well as a Silver Dodge Stratus parked in the
rear of the residence that is driven by Ryan Stabler . . . .
Id.
[8] Stabler’s residence is a one-story tan house with dark shingles, but the address is
actually 1806 South Courtland. The incorrect address included in the affidavit
and search warrant—1816 South Courtland—does not exist. On September 19,
2017, a trial court judge signed the search warrant, and the officers searched
Stabler’s house that same day. During the search, the officers found Stabler,
other individuals, heroin, methamphetamine, an unidentified substance,
prescription drugs, two digital scales, various smoking devices, and a ledger.
The search warrant return was signed by Officer Martin and dated September
20, 2017. It included the correct address and acknowledged the incorrect
address that was in the affidavit and search warrant.
[9] On September 20, 2017, the State charged Stabler with Level 4 felony dealing in
methamphetamine, Level 4 felony dealing in a narcotic drug, Level 6
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possession of methamphetamine, Level 6 felony possession of a narcotic drug,
Level 6 felony maintaining a common nuisance, and Class A misdemeanor
possession of a controlled substance. On October 31, 2017, Stabler filed a
motion to suppress, arguing that the search violated his rights under the federal
and state constitutions.
[10] On November 15, 2017, a suppression hearing took place. During the hearing,
Officer Martin testified that the address in the search warrant and affidavit was
a typographical error, that he accurately described Stabler’s house in the search
warrant request, and that he searched the house he had intended to search.
Officer Martin further testified that he likely gave the search warrant return to
his captain, that someone in the police department would have placed a copy in
the police records and taken another copy to the issuing judge, and that he did
not know who in the department did that or when.
[11] The trial court granted Stabler’s motion, identifying the following relevant
concerns:
• The affidavit does not establish the foundation for the surveillance of the
house. It does not provide the source or verify the credibility of the
numerous complaints of illegal narcotics being sold from the house. It
also does not identify the manager of Mac’s Market who reported that
people leave the house and use and leave syringes in the market’s
restrooms; it does not verify the manager’s credibility; it does not state
when or if the officers obtained the information from the manager; and it
does not state that the officers attempted to verify the information
provided by the manager.
• Brett Ray admitted that he purchased heroin while he was in the house,
and his admission was against his penal interest. The other two people
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the officers intercepted during surveillance did not tell the officers what
took place or what they saw while they were in the house.
• An incorrect address is included in the affidavit and search warrant. The
search warrant describes the appearance of the house, but the affidavit
does not, and no evidence about the appearance of the house was
provided to the court that issued the search warrant.
• The return of the search warrant did not comply with the statute that
governs that procedure.
[12] The State filed a motion to correct error, arguing for the first time that the good
faith exception to the warrant requirement should apply. The trial court denied
that motion. The State then filed a motion to dismiss the charges based on the
trial court’s order, which the trial court granted. The State now appeals.
Discussion and Decision
[13] The State’s sole argument on appeal is that the trial court erred by granting
Stabler’s motion to suppress. It offers several bases for its argument, which we
restate as: the search warrant and affidavit meet statutory requirements to
establish probable cause, the typographical error does not invalidate the search
warrant, and no procedural error occurred in the filing of the search warrant
return.1
1
The State also contends that the good faith exception applies here, making suppression improper. Under
this exception, a “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.” Ind. Code § 35-37-4-5(a). However, the first time the State raised this issue to the trial court
was in its motion to correct error. A party may not raise an issue for the first time in a motion to correct
error. Van Winkle v. Nash, 761 N.E.2d 856, 859 (Ind. Ct. App. 2002). Failure to raise an issue before the trial
court will result in waiver of that issue. Id. The State’s argument regarding the good faith exception,
therefore, is waived.
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[14] When reviewing a trial court’s ruling on a motion to suppress evidence, we
must determine whether substantial evidence of probative value supports the
trial court’s decision. State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App. 2010).
Where a trial court grants a motion to suppress, the State appeals from a
negative judgment and must show that the trial court’s grant of the motion was
contrary to law. Id. We will reverse a negative judgment only when the
evidence is without conflict and all reasonable inferences lead to a conclusion
opposite that of the trial court. Id. We will not reweigh the evidence nor judge
witnesses’ credibility, and will consider only the evidence most favorable to the
trial court’s ruling. Id.
[15] The law regarding the probable cause requirement for a search warrant is well
established:
Probable cause is a fluid concept incapable of precise definition
and must be decided based on the facts of each case. In deciding
whether to issue a search warrant, the issuing magistrate’s task 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. The duty of the reviewing court is to
determine whether the magistrate had a “substantial basis” for
concluding that probable cause existed. 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
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magistrate’s determination as we focus on whether reasonable
inferences drawn from the totality of the evidence support that
determination. “The decision to issue the warrant should be
based on the facts stated in the affidavit and the rational and
reasonable inferences drawn therefrom.” Utley v. State, 589
N.E.2d 232, 236 (Ind. 1992). In determining whether an affidavit
provided probable cause for the issuance of a search warrant,
doubtful cases should be resolved in favor of upholding the
warrant.
Bradley v. State, 4 N.E.3d 831, 840 (Ind. Ct. App. 2014) (citations omitted).
[16] Indiana Code section 35-33-5-2 governs the information to be contained in an
affidavit for a search warrant. It provides in relevant part that
(a) . . . 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;
***
(3) setting forth the facts known to the affiant through
personal knowledge or based on hearsay, constituting the
probable cause.
(b) When based on hearsay, the affidavit must either:
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(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.
Ind. Code § 35-33-5-2.
[17] The trustworthiness of hearsay for the purpose of proving probable cause can be
established in a number of ways, including where: (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 demonstrated, or (4) the informant predicts conduct or activity by
the suspect that is not ordinarily easily predicted. Bradley, 4 N.E.3d at 840-41.
These examples are not exclusive, and depending on the facts, other
considerations may help establish the reliability of the informant or the hearsay.
Id. at 841.
[18] First, the trial court found the affidavit lacking information about the credibility
of the complaints received about the house and of the report from the manager
of Mac’s Market. An affidavit must set forth the facts known to the affiant
through personal knowledge or based on hearsay that constitute the probable
cause. I.C. § 35-33-5-2(a)(3). When the affidavit is based on hearsay, as it was
here, the affidavit is valid if it contains information that establishes that the
totality of the circumstances corroborates the hearsay. I.C. § 35-33-5-2(b)(2).
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[19] We find that Officer Martin’s probable cause affidavit contains information that
establishes that the totality of the circumstances corroborates the hearsay.
“Sufficiency need not rest on a single piece of information, but rather in the
way the pieces fit together.” Utley, 589 N.E.2d at 236. Here, the pieces of
evidence, when put together and viewed collectively, sufficiently establish
probable cause to search Stabler’s residence. Officer Martin stated in his
affidavit that, as the officers were conducting surveillance, they observed three
individuals enter the residence for a short period of time. Officer Martin
stopped the individuals when they left the residence. One of the individuals
dropped a substance that tested positive for heroin; he admitted that he had just
been at Stabler’s house, where he had bought fifty dollars’ worth of heroin from
Stabler. “Declarations against penal interest can furnish sufficient basis for
establishing the credibility of an informant[.]” Houser v. State, 678 N.E.2d 95,
100 (Ind. 1997). The next individual swallowed something when approached
by the officers and was found in possession of a syringe. The third individual
fled from the police, and when caught, was arrested on open warrants for drug
possession. This independent police investigation corroborates the reports that
illegal activities had been taking place inside Stabler’s house. Thus, the
evidence in the affidavit, when viewed collectively, sufficiently supports a
finding of probable cause.
[20] Second, the trial court also noted the incorrect address in the affidavit and
search warrant, stating that although the search warrant describes the
appearance of the house, the affidavit does not. Initially, we note that the
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affidavit includes an address that has one incorrect digit and states that Mac’s
Market is “directly to the east of this residence.” State’s Ex. 1. The search
warrant described the residence as a tan one-story house with dark shingles and
a front door facing west. Officer Martin testified that the incorrect address was
a typographical error, that “1816 South Courtland” does not exist, and that the
subsequent search was conducted at Stabler’s house.
[21] Indiana courts have repeatedly upheld search warrants despite scrivener’s errors
in the address as long as the warrant otherwise sufficiently described the place
to be searched. E.g., Creekmore v. State, 800 N.E.2d 230, 235-37 (Ind. Ct. App.
2003) (finding that incorrect directional coordinates in the search warrant did
not require suppression in part because, despite the mistake, the warrant
sufficiently described the property to be searched); Houser, 678 N.E.2d at 101
(finding that the incorrect address in the search warrant did not invalidate the
warrant because the warrant sufficiently described the property to be searched
despite the mistake and the error was an innocent one). Although we do not
condone the use of search warrants containing an incorrect street address, the
warrant in this case sufficiently described the property to be searched despite the
mistake. The record shows that the mistake was an innocent one and did not
affect the probable cause determination. This mistake does not require
suppression.
[22] Finally, the trial court also expressed concern over the way in which the search
warrant return was filed. In its order, the trial court found that the “officer who
executes a search warrant is required to make a return of the warrant to the
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judge who issued the warrant,” citing Indiana Code section 35-33-5-4. Indiana
Code section 35-33-5-4 provides that “[t]he officer who executed the warrant
shall make a return on it directed to the court or judge, who issued the warrant,
and this return must indicate the date and time served and list the items seized.”
In other words, the statute only requires the officer who executed the warrant to
direct the return to the issuing court or judge; it contains no requirement that the
officer himself personally file the return. Thus, here, Officer Martin fulfilled his
statutory duty by submitting the return to his police unit for filing.
[23] The trial court further noted that the search warrant return was filed two
months after the search, and that “[t]he entry does not provide any information
justifying the delay of the return to the court.” Appealed Order p. 3. A delay in
filing a return, however, does not require suppression of evidence as long as the
defendant is not prejudiced. See, e.g., Webster v. State, 579 N.E.2d 667, 670 (Ind.
Ct. App. 1991) (finding that a return that was not filed until a year after the
search did not invalidate the search warrant because there is no requirement
that the return be filed within a specific amount of time and there was no
showing that the defendant was harmed by the delay). Here, there was no
finding or evidence that Stabler was harmed by the delayed filing. 2 The way in
which the search warrant was returned does not require suppression.
2
The trial court was also concerned that the search warrant authorized the search of a vehicle at Stabler’s
residence because the affidavit does not refer to any vehicle, does not indicate how Officer Martin knew
whether the vehicle was driven by Stabler, and does not indicate whether any relationship existed between
the vehicle and any activities in the house. We agree with the trial court that the inclusion of the vehicle in
the search warrant is improper because the supporting affidavit does not particularly describe the vehicle to
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[24] In sum, despite the mistake in the address, the affidavit and search warrant are
valid, and the evidence seized does not require suppression.
[25] The judgment of the trial court is reversed and remanded.
Kirsch, J., and Bradford, J., concur.
be searched as required by Indiana Code section 35-33-5-2. However, because the search warrant return
identifies no evidence found in the vehicle, this issue is moot.
The trial court also noted that the search warrant return shows that Stabler and another individual were
searched even though the search warrant does not authorize the search of any individuals. We find no error
with this issue. Once the officers executed the search warrant, entered the house, and observed illegal
substances, they had probable cause to arrest the individuals inside. Once the individuals were arrested, the
officers could conduct a search incident to arrest.
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