MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                Jun 18 2019, 6:08 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William T. Gudger,                                       June 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-525
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable Brant J. Parry,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         34D02-1604-F3-78



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019                      Page 1 of 11
                                       Statement of the Case
[1]   William T. Gudger appeals his conviction for robbery, as a Level 3 felony,

      following a jury trial. Gudger presents one issue for our review, namely,

      whether the trial court erred when it admitted evidence that law enforcement

      officers had seized pursuant to a search of his residence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 6, 2016, Gudger entered a bank in Kokomo wearing “fake hair” under

      a hat, sunglasses, a sweatshirt, and a dark coat. Tr. Vol. II at 96. One of the

      employees of the bank, Jenna Canady, approached Gudger to ask him to

      remove his hat and sunglasses. In response, Gudger pulled out a gun and

      stated: “This is a f**king robbery. Put your hands up. I want $20,000.” Id.

      After the bank tellers did not respond to Gudger’s demand quickly enough,

      Gudger “got angry” and fired a shot at the floor. Id. at 94. The bank tellers

      then gave Gudger $5,967.


[4]   Shortly after Gudger had left, law enforcement officers arrived at the scene and

      found pieces of the shattered bullet on the floor. Officers also found tire tracks

      and two twenty-dollar bills in a grassy area outside of the bank. The officers

      then obtained a copy of the video from the bank’s surveillance camera, which

      had recorded the robbery.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 2 of 11
[5]   After he had obtained the money, Gudger fled the scene. He called his sister,

      Kristen Gudger, and asked her to pick him up. It “sounded like something was

      wrong,” so Kristen left work in Indianapolis to pick Gudger up. Id. at 64.

      Gudger sent Kristen a text message with an address in Kokomo where he

      would be waiting. Once Kristen arrived at the address, Gudger and his

      girlfriend, Beverly Harris, got into Kristen’s car, and Kristen drove them to

      Indianapolis.


[6]   At one point during the drive, Gudger stated: “f**k, f**k . . . I forgot the bag.”

      Id. at 68. Gudger then asked Kristen if they could turn around so that he could

      get his bag. Kristen refused, and she asked Gudger what he had done. Gudger

      responded: “I do what I do best.” Id. He then pulled out “a decent wad of

      cash” from his pocket, which was “unusual” for him to have. Id. at 69, 88.

      Based on a prior conversation in which Gudger had told Kristen that “[a]ll he

      would have to do is rob a bank” to solve his problems, Kristen determined that

      Gudger had robbed a bank. Id. at 70. Kristen then began “freaking out,” but

      she did not want Gudger or Harris to know, so she continued to drive to

      Indianapolis. Id. at 69.


[7]   As they approached Indianapolis, Gudger asked Kristen if she would take them

      to a mall. Kristen complied, and Gudger and Harris purchased some items.

      The three then went to a restaurant. After they had finished their meal, they

      drove to a gas station. While there, Gudger saw a news story about the robbery

      on his phone. Gudger told Kristen that “he had used a gun” and that he had

      shot the gun into the floor, but he did not specifically tell Kristen that he had

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 3 of 11
       robbed a bank. Id. at 75. After they left the gas station, Kristen dropped

       Gudger and Harris off at a hotel where they stayed for the night.


[8]    The next morning, Kristen contacted Detective Robert Scaife with the Muncie

       Police Department, who is her uncle. Kristen informed Detective Scaife that

       Gudger had robbed a bank in Kokomo. Detective Scaife then called Kokomo

       Police Detective Michael Banush and told Detective Banush about his phone

       call with Kristen.


[9]    Detective Banush then “immediately” called Kristen. Id. at 122. Kristen

       relayed all of the facts from the previous day to Detective Banush. Kristen

       specifically told Detective Banush that she had picked Gudger and Harris up

       from a house at 720 South Purdum Street in Kokomo and that they had

       checked into room number 255 at the Best Western hotel in Indianapolis.


[10]   Detective Banush was able to confirm that Harris had checked into room 255 of

       a Comfort Inn that had previously been a Best Western and that Harris lived at

       720 South Purdum Street. Detective Banush applied for a search warrant for

       Harris’ house. In support of his request for the search warrant, Detective

       Banush filed an affidavit of probable cause that stated in part:


               On 04/06/2016 at approximately 3:30 pm, Officers of the
               Kokomo Police Department were sent to Security Federal Bank,
               519 E. Markland Ave. in reference to a bank robbery. Dispatch
               advised that a black male entered the bank with a handgun,
               stated, “This is a robbery” and demanded $20,000.00. The male
               ordered everyone to put their hands up, fired the handgun toward
               the floor and demanded $20,000.00 again. The tellers handed the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 4 of 11
        suspect cash and he left the bank. The employees described the
        suspect as a black male, 5-9 to 5-10 in height, thin build, having
        dreadlocks, wearing a gray hooded sweatshirt, black pea coat,
        black hat, sunglasses[,] blue jeans[,] and blue tennis shoes.


        On 04/07/2016, the affiant received a phone call from a Det.
        Robert Scaife of the Muncie Police Department. Det. Scaife
        stated that his niece, Kristen Gudger called him this morning and
        said that her brother robbed the bank in Kokomo yesterday. The
        affiant contacted Kristen Gudger of Indianapolis IN and she
        stated that her brother is William T. Gudger, DOB: 03/15/1982.
        She stated that on yesterday’s date, William called her and asked
        her to pick him up in Kokomo. She stated that she drove to
        Kokomo and picked William and his girlfriend up from 720 S.
        Purdum Street. She identified the girlfriend as a black female
        named Beverly who lives at 720 S. Purdum St. She stated that
        William wanted her to take him and Beverly to Indianapolis IN.
        On the way to Indianapolis, William told her that he robbed a
        bank with a gun and showed her a pocket full of cash. Kristen
        asked William which bank he robbed and he told her that he
        robbed the bank where all of the police cars were. It should be
        noted that 720 S. Purdum is just blocks from Security Federal
        Bank. William also told her that he robbed the bank 1 1/2 hours
        ago. William also gave her $300.00 cash for picking him up and
        driving him and Beverly to Indianapolis. Kristen said that on the
        way to Indianapolis, William told Beverly that he forgot to bring
        the bag containing the clothes that he wore during the bank
        robbery. Kristen stated the bag of clothes is in the residence at
        720 S. Purdum St. Kristen stated that she drove William and
        Beverly to a Best Western Hotel at Washington Street and I465.
        She stated that William and Beverly checked into room #255.
        Kristen also stated that William called her today and wants her
        to pick him up at the hotel and drive him back to 720 S. Purdum
        St. so he can get the bag of clothes and destroy them.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 5 of 11
               The Indianapolis State Police went to Washington Street and
               I465 and found a Comfort Stay Inn that used to be a Best
               Western, 7610 Old Trail Rd. Indianapolis IN. ISP investigators
               confirmed with the hotel staff that Beverly Harris is a registered
               guest in room #255. Investigators also confirmed that Beverly
               Harris resides at 720 S. Purdum St. in Kokomo IN.


       Appealed Order at 2-3.


[11]   The trial court granted the search warrant, and officers executed the warrant

       later that day. As a result of the search, the officers discovered a white trash

       bag that contained a black wig, a black pea coat, blue tennis shoes, and pants.

       Officers also found a gray hooded sweatshirt on top of a clothes basket and a

       pair of sunglasses. Those items matched the items officers were able to observe

       on the bank’s surveillance video.


[12]   Following that search, Detective Banush applied for a search warrant for the

       hotel room, which the trial court granted. Officers went to the hotel in order to

       execute the search warrant. Prior to searching the hotel room, officers arrested

       Gudger and found “a large amount of cash” in his pocket. Tr. Vol. II at 127.

       Officers then searched the room and found “brand new items that had been

       purchased.” Id. at 129. They also found receipts “that totaled over a couple

       thousand dollars.” Id. Officers transported Gudger to the Kokomo Police

       Department. Once there, officers read Gudger his Miranda rights, and Gudger

       gave a statement in which he confessed to having robbed the bank.


[13]   The State charged Gudger with one count of robbery, as a Level 3 felony. On

       January 23, 2018, Gudger filed a motion to suppress any evidence seized during
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 6 of 11
       the search of his residence. In that motion, he asserted that the affidavit for

       probable cause that Detective Banush had filed in support of his request for the

       search warrant was based only on hearsay statements and that the affidavit did

       not contain any information to indicate that the hearsay statements were

       reliable or credible. Gudger further requested that the court suppress all items

       obtained from the search of his hotel room and his confession because the

       warrant to search the hotel and his arrest were “derivatively gained” from the

       warrant to search his house. Motion to Suppress at 11. 1 The trial court denied

       Gudger’s motion.


[14]   The trial court held a jury trial on January 23 through 25. During the trial, the

       State moved to admit as evidence photographs of the clothing that officers had

       found in Gudger’s home as well as photographs of items found in the hotel

       room. The trial court admitted that evidence over Gudger’s objection. The

       State also moved to admit as evidence the transcript of Gudger’s interview with

       police, which the court admitted over Gudger’s objection. Further, the State

       presented the testimony of Canady and another bank teller, Kelly Stephenson,

       who both identified Gudger as the man who had robbed the bank. The jury

       found Gudger guilty of robbery, as a Level 3 felony. The trial court entered

       judgment of conviction and sentenced Gudger to fifteen years in the

       Department of Correction. This appeal ensued.




       1
        Gudger provided a copy of the motion to suppress in his appendix, but that copy is illegible. See
       Appellant’s App. Vol. II at 74-84. Accordingly, we have taken judicial notice of the motion to suppress that
       Gudger filed in the trial court, which we have obtained via the Odyssey case management system.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019                     Page 7 of 11
                                        Discussion and Decision
[15]   Gudger contends that the trial court erred when it admitted as evidence items

       law enforcement officers had seized during the search of his residence. 2

       Gudger’s argument that the search of his residence violated his constitutional

       rights raises “questions of law that we review de novo.” Redfield v. State, 78

       N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (quotation marks omitted), trans.

       denied.


[16]   On appeal, Gudger contends that the search of his residence was illegal because

       the search warrant lacked probable cause. Specifically, Gudger asserts that the

       search was improper because the affidavit for probable cause contained only

       hearsay statements and because the affidavit did not contain any information to

       “indicate[] any corroboration” of those statements. Appellant’s Br. at 8.


[17]   But we need not decide whether there was probable cause to issue the search

       warrant. Even if we assume for the sake of argument that Gudger is correct and

       there was no probable cause to support the search warrant, “[t]he lack of

       probable cause does not automatically require the suppression of evidence

       obtained during a search conducted pursuant to a warrant.” Jackson v. State,

       908 N.E.2d 1140, 1143 (Ind. 2009). Indeed, “the exclusionary rule does not




       2
         Throughout his brief on appeal, Gudger asserts that the trial court erred when it denied his motion to
       suppress. However, because Gudger appeals after a completed trial, “the question of whether the trial court
       erred in denying his motion to suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct.
       App. 2010).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019                     Page 8 of 11
       require the suppression of evidence obtained in reliance on a defective search

       warrant if the police relied on the warrant in objection good faith.” Id.


[18]   Accordingly, to prove that the trial court committed reversible error when it

       admitted as evidence items officers has seized from his residence, Gudger must

       demonstrate both that the warrant lacked probable cause and that the good faith

       exception does not apply. But, on appeal, Gudger only asserts that the search

       warrant lacked probable cause. He makes no argument that the good faith

       exception does not apply.


[19]   It is well settled that there are two situations where the good faith exception

       does not apply. See id. Those include situations where “the magistrate is

       misled by information in an affidavit that the affiant knew was false or would

       have known was false except for his reckless disregard of the truth” or situations

       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.” Id.

       (quotation marks omitted).


[20]   Gudger has not directed us to any evidence in the record, or made any

       argument, that the magistrate was misled by information in the affidavit that

       Detective Banush knew or should have known was false. Neither does he

       assert that the warrant was so lacking in indicia of probable cause as to render

       belief in its existence entirely unreasonably. Accordingly, Gudger has not met

       his burden on appeal to demonstrate that the trial court erred when it admitted




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019   Page 9 of 11
       as evidence items seized pursuant to the search of his residence. 3 We therefore

       affirm the trial court.


[21]   Affirmed.


       Robb, J., concurs.

       Baker, J., concurs with separate opinion.




       3
          Gudger also asserts, without more, that, “[b]ecause there was no probable cause to search 720 South
       Purdum, there was no legally obtained information to arrest Gudger and search the hotel where Gudger and
       Harris were staying.” Appellant’s Br. at 9. While it appears as though Gudger attempts to assert that the
       search of his hotel room and his statement to police should be suppressed as fruit of poisonous tree, Gudger
       does not cite any authority for his proposition or provide any argument to support his conclusory statement
       that his confession and the items from the hotel room should be suppressed. Accordingly, Gudger has failed
       to make cogent argument, and that purported issue is waived. See Ind. Appellate Rule 46(A)(8)(a). In any
       event, given that Grudger not has met his burden to show reversible error in the seizure of evidence under the
       first warrant, his derivative argument under the fruit-of-the-poisonous-tree doctrine also fails on the merits.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019                     Page 10 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       William T. Gudger,                                       Court of Appeals Case No.
                                                                18A-CR-525
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, concurring.


[22]   I fully concur in the majority opinion. I write separately to note that in my

       view, there was probable cause to issue the search warrant. It is true that the

       probable cause affidavit was primarily based on hearsay. But I find it

       significant that after receiving the call from Kristen, Detective Banush

       investigated and was able to verify some of her assertions, including the hotel in

       which Gudger was staying, his room number, and his home address. I believe

       that this follow-up investigation and confirmation of some of the salient details

       provided by Kristen shows that the information she had provided was

       sufficiently reliable to establish probable cause for the warrant.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019         Page 11 of 11
