                                                                      Oct 14 2015, 9:34 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John L. Tompkins                                           Gregory F. Zoeller
Brown Tompkins Lory & Mastrian                             Attorney General of Indiana
Indianapolis, Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tonya Herron,                                              October 14, 2015
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1504-CR-149
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Linda E. Brown,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49F10-1308-CM-54228



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015                   Page 1 of 10
[1]   Tonya Herron appeals the certified interlocutory order of the trial court denying

      her motion to suppress evidence. She argues that the warrant authorizing a

      blood draw lacked probable cause where the officer’s probable cause affidavit

      left several material sections blank. Finding a lack of probable cause to issue

      the warrant, we reverse.


                                                        Facts
[2]   On August 16, 2013, Officer Carey stopped Herron’s car to investigate whether

      she was intoxicated.1 Officer Carey informed Herron of Indiana’s implied

      consent law2 and asked her whether she would submit to a chemical test to

      determine her intoxication level. When she declined, Officer Carey filled out a

      probable cause affidavit for a blood draw.


[3]   The boilerplate introduction to the affidavit states that Officer Carey had reason

      to believe “that there is now concealed certain evidence, namely: Blood in such

      person, which is evidence of the crime of operating a vehicle/motor vehicle

      while intoxicated . . . and tends to show that said person committed such

      offense[.]” Appellant’s App. at 8. Based on the “X” he placed on the form, his

      affidavit goes on to say, “In the course of my duties I had occasion to

      investigate . . . the scene of an operating a vehicle while intoxicated. Officer

      Carey observed erratic and/or unlawful motor vehicle operation as follows . . .



      1
       The exact circumstances of this stop, and what led to it, are not in the record before us and are not being
      challenged in this appeal.
      2
          Ind. Code § 9-30-6-1 et seq.


      Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015                         Page 2 of 10
      .” Id. The space underneath this prompt was left blank, and all parties agree it

      was done so by mistake. Officer Carey also did not write anything under the

      prompt, “I believe that above-named individual was the operator of the motor

      vehicle in question because . . . .” Id.


[4]   His affidavit does mention the following indicia of intoxication: odor of

      alcoholic beverage on the breath; alcohol beverage containers in plain view;

      slurred speech; glassy and bloodshot eyes; unsteady balance; and a preliminary

      breathalyzer test resulting in a .19 reading. Id. at 9. Finally, the affidavit states

      that Herron refused to consent to a certified chemical test after being advised of

      the implied consent law. Id. The judge signed the warrant, and a blood sample

      was taken.


[5]   On August 22, 2013, the State charged Herron with operating a vehicle while

      intoxicated3 and operating a vehicle with a blood alcohol concentration of 0.15

      or greater4 as class A misdemeanors. On March 7, 2014, Herron filed a motion

      to exclude the evidence obtained by the blood draw. After a February 24, 2015,

      hearing, the trial court denied her motion. Herron now appeals from the trial

      court’s interlocutory order denying her motion to exclude.




      3
          Ind. Code § 9-30-5-2(a).
      4
          I.C. § 9-30-5-1(b).


      Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 3 of 10
                                     Discussion and Decision
[6]   When deciding whether to issue a warrant, a magistrate makes a practical,

      common-sense decision whether, given all the circumstances, there is a fair

      probability that evidence of a crime will be found. Lloyd v. State, 677 N.E.2d 71,

      73 (Ind. Ct. App. 1997). When reviewing that decision, we apply a deferential

      standard, and will affirm if the magistrate had a substantial basis for concluding

      that probable cause to search existed. Id. Probable cause determinations “are

      not technical; they are the factual and practical considerations of everyday life

      on which reasonable and prudent men, not legal technicians, act.” Illinois v.

      Gates, 462 U.S. 213, 231 (1983). The determination is made upon the totality of

      the circumstances. Id. at 233.


                                              I. The Warrant
[7]   Herron properly brings one argument on appeal, namely, that the affidavit did

      not include enough specific facts to support probable cause for a warrant. 5 She

      argues that since the only mention of a motor vehicle is in the affidavit

      boilerplate, “the application form does not even contain an individualized

      allegation that Herron operated a vehicle at all.” Appellant’s Br. 3.




      5
        Herron also questions whether “a court may presume a neutral and detached magistrate” where sections of
      the application were left blank, but she does so for the first time on appeal. Since “a trial court cannot be
      found to have erred as to an issue or argument that it never had an opportunity to consider,” Washington v.
      State, 808 N.E.2d 617, 625 (Ind. 2005), this argument is waived. Moreover, this second argument, as
      developed in the Appellant’s Brief, is essentially a repackaging of the first and so it need not be discussed
      separately.

      Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015                       Page 4 of 10
[8]   Whether Herron was actually operating a vehicle is crucial to whether there

      was probable cause that the crime of operating a vehicle while intoxicated was

      committed. Both Indiana Code sections 9-30-5-1(b) and -2(a) require the State

      to show that a person “operate[d] a vehicle.” Without the allegation that

      Herron operated a vehicle, it is unclear whether she committed any criminal

      violation. Officer Carey did allege specific facts of intoxication—odor of

      alcoholic beverage on the breath; alcohol beverage containers in plain view;

      slurred speech; glassy and bloodshot eyes; unsteady balance; and a preliminary

      breathalyzer test resulting in a .19 reading—but these would only support

      probable cause for Herron’s intoxication. In Milam v. State, we reversed a

      public intoxication charge for insufficient evidence where the intoxicated

      defendant was a passenger, not the operator, of a vehicle. 14 N.E.3d 879 (Ind.

      Ct. App. 2014); see also Ind. Code § 7.1-5-1-3. The absence of facts giving the

      magistrate a substantial basis to believe Herron operated a motor vehicle would

      render the warrant affidavit insufficient to show probable cause of a crime.


[9]   We note that the mere use of boilerplate language does not call the validity of a

      warrant into question. In Rios v. State, we rejected such a claim, stating that

      “[t]his alone does not make the affidavit insufficient to establish probable

      cause.” 762 N.E.2d 153, 160 (Ind. Ct. App. 2002). That case involved an

      affidavit with boilerplate language but “with the facts particular to Rios . . .

      inserted in bold by a word processing program.” Id. The use of boilerplate

      language in a warrant affidavit is valid “as long as the affidavit contains




      Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 5 of 10
       sufficient facts specific to the search at issue to establish probable cause . . . .”

       Id.


[10]   The State offers four arguments as to why the magistrate had a substantial basis

       to believe Herron was operating a vehicle. First, it argues that the following

       statement contained in the affidavit creates such a basis: “which is evidence of

       the crime of operating a vehicle/motor vehicle while intoxicated . . . .” But

       these words are pure boilerplate. The State would have us go beyond Rios to

       say that boilerplate without facts particular to Herron would still be sufficient to

       create probable cause. Under this argument, a prefabricated form with this

       single sentence, a defendant’s name at the top, and an officer’s signature at the

       bottom would be sufficient to support a warrant. Such an argument is

       unavailing.


[11]   Second, the State points to more boilerplate on the form: “In the course of my

       duties, I had occasion to investigate . . . the scene of an operating a vehicle

       while intoxicated.” This argument fails for the same reason as the first: this

       language is pure boilerplate without any facts specific to the search at issue. To

       find that such a statement creates a substantial basis to believe that Herron was

       operating a vehicle would be to turn magistrates into the kind of “rubber

       stamp” they cannot and should not be. U.S. v. Leon, 468 U.S. 897, 914 (1984).


[12]   Third, the State argues that the affidavit does contain facts specific to Herron

       because Officer Carey filled out the date, time, and intersection of where he saw

       Herron. “[I]mplicit in these facts is an allegation that a vehicle was operated.”


       Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015    Page 6 of 10
       Appellee’s Br. 7. When combined with the above-mentioned boilerplate, “these

       statements create a clear inference that Defendant is the person who was

       allegedly operating the vehicle stopped at Southport and McFarland on August

       16th.” Id. at 8.


[13]   This argument fails because the State is misapplying the “substantial basis”

       rule. Our standard of review is not whether the magistrate had a substantial

       basis to understand what crime an officer is alleging; it is instead whether the

       magistrate had a substantial basis to believe that probable cause of a crime and

       evidence thereof existed. Put pithily, if an officer’s affidavit stated solely that an

       individual “committed a crime that rhymes with schmurder,” a magistrate

       would have a substantial basis to believe the officer was talking about murder,

       but would not have a substantial basis to believe that probable cause existed

       regarding a murder. See Kinnaird v. State, 242 N.E.2d 500, 505 (Ind. 1968)

       (holding warrant invalid where “affidavit merely allege[d] that the appellant

       engaged in unlawful conduct [but did not] state the facts and circumstances

       from which this conclusion was drawn”). Reading the affidavit in this case, a

       magistrate would clearly have a substantial basis to believe that Officer Carey

       meant to allege that Herron operated a vehicle while intoxicated, but would not

       have a substantial basis to find probable cause that Herron actually did commit

       that offense.


[14]   Fourth, the State argues that when Officer Carey placed an “X” next to the

       statement, “The above named individual has refused to consent to a certified

       chemical test after being advised of the Indiana Implied Consent Law,” he

       Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 7 of 10
       provided enough information to satisfy the substantial basis for probable cause

       standard. The State reasons as follows: the Implied Consent Law, Indiana

       Code section 9-30-6, only applies to drivers; courts should presume that officers

       know Indiana laws; therefore, courts should presume that Officer Carey would

       only read the law to someone operating a vehicle; and therefore, there was

       probable cause to believe Herron was operating the vehicle.


[15]   This argument fails. This is precisely the type of “legal technician” argument

       warned against in Gates. Although we do presume that officers know and

       follow the law, nothing in Indiana Code section 9-30-6 et seq. forbids an officer

       from offering a chemical test for intoxication to a passenger or a pedestrian.

       We cannot agree that an officer reading a law to an individual creates probable

       cause to believe that individual violated a law.


[16]   In summary, when one focuses on the individualized information contained in

       the affidavit, rather than the boilerplate, one finds the following: at 9:04 p.m. on

       August 16, 2013, at the intersection of Southport Road and McFarland

       Boulevard, Officer Carey noticed that Herron exhibited signs of intoxication, so

       he read to her Indiana’s Implied Consent Law but she refused to consent to a

       chemical test. This combination of facts does not create probable cause that a

       crime was committed, and therefore the warrant was invalid.


                                    II. Good Faith Exception
[17]   Our analysis does not end with finding the warrant invalid. Under some

       circumstances, an officer’s “reliance on the magistrate’s determination of

       Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 8 of 10
       probable cause [is] objectively reasonable, and application of the extreme

       sanction of exclusion is inappropriate.” Leon, 468 U.S. at 926. The exception

       allows courts to admit evidence that has been unlawfully seized if the police

       acted in “objective good faith.” Caudle v. State, 749 N.E.2d 616, 621 (Ind. Ct.

       App. 2001) (quoting Leon, 468 U.S. at 920). An officer does not qualify for this

       exception if 1) the officer misled the magistrate by filing an affidavit that the

       officer knew or should have known was false; or 2) if the affidavit is so lacking

       in indicia of probable cause as to render official belief in its existence entirely

       unreasonable. Id. Our Supreme Court has counselled against allowing the

       good faith exception to “obliterate the exclusionary rule.” Dolliver v. State, 598

       N.E.2d 525, 529 (Ind. 1992). In a good faith exception case, “[t]he error . . .

       rests with the issuing magistrate, not the police officer, and punish[ing] the

       errors of judges is not the office of the exclusionary rule.” Davis v. U.S., 131 S.

       Ct. 2419, 2428 (2011) (internal quotations omitted).


[18]   We do not have such a case here; the error rests first with the officer. Both

       parties agree that Officer Carey did not intentionally mislead the magistrate by

       filing an affidavit he knew to be false, but, as explained above, the affidavit did

       lack in indicia of probable cause. Indeed, the individualized information

       regarding Herron only suggested intoxication, but not any crime.


[19]   The definition of “evidence obtained in good faith,” for the purposes of this

       exception, has been codified in Indiana Code section 35-37-4-5(b)(1)(A):

       evidence “obtained pursuant to a search warrant that was properly issued upon

       a determination of probable cause by a neutral and detached magistrate, that is

       Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 9 of 10
       free from obvious defects other than nondeliberate errors made in its

       preparation, and that was reasonably believe by the law enforcement officer to

       be valid . . . .” As made clear from the discussion above, this warrant does not

       fall under the protection of this statute because the search warrant was not

       “properly issued upon a determination of probable cause.”


[20]   In sum, the good faith exception does not apply to this error. The error was

       made first by the officer and so the public policy of incentivizing better police

       behavior still applies. Affirming a form affidavit that does not, in its

       individualized portions, include a crime would come much too close to the

       obliteration of the exclusionary rule that our Supreme Court has cautioned

       against.


[21]   The judgment of the trial court is reversed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1504-CR-149 | October 14, 2015   Page 10 of 10
