Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                FILED
                                                                Apr 12 2012, 9:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

PETER D. TODD                                       GREGORY F. ZOELLER
Elkhart, Indiana                                    Attorney General of Indiana

                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JASON L. HASTE and JAMIE R. HASTE,                  )
                                                    )
       Appellants-Defendants,                       )
                                                    )
               vs.                                  )      No. 20A05-1107-CR-364
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                           The Honorable Olga H. Stickel, Judge
                              Cause No. 20D04-1001-FD-10
                              Cause No. 20D04-1001-FD-12


                                          April 12, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                           Case Summary

        Jason L. Haste (“Jason”) and Jamie R. Haste (“Jamie”) (collectively, “the Hastes”),1

appeal following their convictions for Maintaining a Common Nuisance, as a Class D

felony,2 Possession of Marijuana, as a Class D felony,3 and Possession of Marijuana, as a

Class A misdemeanor.4 We affirm the Hastes’ convictions and sentences for Maintaining a

Common Nuisance and Possession of Marijuana as a Class D felony, but vacate their

convictions for Possession of Marijuana, as a Class A misdemeanor, due to double jeopardy

violations.

                                                 Issue

        The Hastes raise a single issue for our review: whether the trial court abused its

discretion by admitting evidence obtained by the police through a warrantless search of their

trash and subsequent search of their home pursuant to a warrant.

                                  Facts and Procedural History

        On or about June 18, 2008, law enforcement received an anonymous tip that Jamie

was growing and cultivating a large quantity of marijuana in the basement of a house located

at 53367 County Road 9 in Elkhart, Indiana. The tipster described the house as tan in color,

and mentioned that there was a large barn on the property. The Indiana State Police (ISP)

performed a driver’s license and criminal history check on Jamie, which revealed that




1
  This court granted the Hastes’ motion to consolidate their appeals on December 5, 2011.
2
  Ind. Code § 35-48-4-13(b)(1).
3
  I.C. § 35-48-4-11(1).
4
  I.C. § 35-48-4-11(3).
                                                    2
Jamie’s address was 53367 County Road 9 in Elkhart, Indiana, that his license was

suspended, and that he had multiple arrests and convictions for drug-related offenses in

Indiana and in other states.

       The ISP then subpoenaed the utility records for Jamie’s address. Those records

revealed that, between May 2007 and September 2008, the average electricity used was

2407.58 kilowatts. Based upon his training, ISP Trooper Chad Larsh (“Trooper Larsh”)

knew that that an average home uses between 700 kilowatts and 1200 kilowatts per month.

Trooper Larsh then conducted a drive by of Jamie’s address, confirmed that there was a tan

residence at the address provided by the tipster, and observed that, while the residence

appeared to be occupied, the outbuildings did not appear to be used for residential or business

purposes and thus would not require much electricity. Trooper Larsh also made an inquiry

with the Elkhart County Assessor’s Office to determine the precise dimensions of Jamie’s

residence and the outbuildings on the property.

       As a result of his investigation, in the early morning of October 13, 2008, Trooper

Larsh and another officer went to Jamie’s address and collected abandoned trash from a

single large trash can that had been set out for routine trash collection. The officers

discovered numerous fresh, non-wilted complete and partial marijuana leaves and stems.

Some of these marijuana plants were not smashed and the leaf pattern could still be

identified, indicating that they had come from live marijuana plants. Trooper Larsh

conducted a field test and determined that the plants in the trash can contained “THC,” a

chemical found in marijuana. App. 65. The officers also found in the trash a package of Zig-

                                              3
Zag rolling papers, a previously harvested and completely dried marijuana stalk with roots,

and mail addressed to “Jason L. Haste” showing an address of 53367 County Road 9 in

Elkhart, Indiana. App. 65.

       The ISP then ran a driver’s license and criminal background check on Jason. The

driver’s license check revealed that Jason’s address was 53367 County Road 9 in Elkhart,

Indiana. His criminal history included prior arrests and one conviction for a drug-related

offense.

       Based upon all of this information, Trooper Larsh concluded that marijuana

cultivation, drying, or usage was occurring at 53367 County Road 9, and on October 15,

2008, he applied for a warrant to search the address. The search warrant was granted and

executed the same day. As a result of the search, police recovered a large amount of

marijuana, paraphernalia used for smoking marijuana, and equipment used for growing

marijuana.

       On January 13, 2010, the State charged Jamie, Jason, and their mother, Kandi Garcia

(“Garcia”), each with Maintaining a Common Nuisance, as a Class D felony, Possession of

Marijuana, as a Class D felony, and Possession of Marijuana, as a Class A misdemeanor,

under separate cause numbers. Jason’s and Jamie’s cases were consolidated on February 28,

2011. Garcia was tried separately and found guilty as charged after a jury trial that

commenced on March 8, 2011 and concluded on March 11, 2011.

       The Hastes’ bench trial took place on March 15, 2011. At the outset of the trial, the

parties stipulated to the introduction of the evidence and testimony presented at Garcia’s trial,

                                               4
with all objections preserved. The Hastes also moved to suppress all evidence obtained as a

consequence of the trash search.5 The trial court denied the Hastes’ motion to suppress the

evidence and found both guilty as charged.

        On May 9, 2011, Jamie was sentenced to thirty months imprisonment with six

suspended, to be served in Elkhart Community Corrections, for Count I of Maintaining a

Common Nuisance. The trial court continued sentencing Jamie on May 23, 2011, and, for

Count II Possession of Marijuana, as a Class D felony, it sentenced Jamie to three years

imprisonment, to be served in Elkhart Community Corrections concurrently with the sentence

for Count I. The trial court entered judgment of conviction for Count III, Possession of

Marijuana, as a Class A misdemeanor, but imposed no sentence because it “merge[d]” with

Count II.

        On July 6, 2011, the trial court sentenced Jason to thirty months imprisonment with

six suspended, to be served in Elkhart Community Corrections, for Count I, Maintaining a

Common Nuisance, and an additional thirty months with six suspended for Count II,

Possession of Marijuana, as a Class D felony, to be served concurrently. The trial court again

merged Count III, Possession of Marijuana, as a Class A misdemeanor, into Count II and

imposed no additional sentence.

        The Hastes now appeal.




5
 Jason had also previously filed a motion to suppress on June 14, 2010, which was denied on September 17,
2010.
                                                   5
                                 Discussion and Decision

                                      Double Jeopardy

       We initially observe that the trial court entered judgments of conviction on all three of

the charged counts against each of the Hastes, but noted in the sentencing orders that it would

not impose an additional sentence on Count III, Possession of Marijuana, as a Class A

Misdemeanor, because it “merges” with Count II, Possession of Marijuana, as a Class D

felony. (App. 18, 125) “A trial court’s act of merging, without also vacating the conviction,

is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703

(Ind. Ct. App. 2008), trans. denied. A double jeopardy violation occurs when judgments of

conviction are entered, and the violation cannot be remedied by the “practical effect” of

concurrent sentences or by merger after conviction has been entered. Id. (quoting Morrison

v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied). We therefore remand

this cause to the trial court with an order to vacate Jason’s and Jamie’s convictions for

Possession of Marijuana, as a Class A Misdemeanor.

                                 Admissibility of Evidence

                                     Standard of Review

       Although Jason challenged the admission of evidence through a pre-trial motion to

suppress, and both the Hastes moved to suppress the evidence at trial, they both appeal

following their convictions, and thus challenge the admission of such evidence at trial over

their objection. See Peters v. State, 888 N.E.2d 274, 277 (Ind. Ct. App. 2008), trans. denied.

Trial courts have broad discretion regarding the admission of evidence. Id. We will reverse

                                               6
a trial court’s ruling on the admission of evidence only for an abuse of discretion, that is,

when the court’s decision is clearly against the logic and effect of the facts and circumstances

before it. Id. We examine the evidence favorable to the trial court’s ruling, along with any

uncontradicted evidence. Id. We neither reweigh evidence nor judge witness credibility. Id.

In reviewing such a claim, we will consider foundational evidence submitted at trial as well

as evidence from the motion to suppress hearing which is not in direct conflict with the trial

testimony. Id.

                                      The Trash Search

       The Hastes argue that the warrantless police search of their trash violated their Indiana

Constitutional rights. Article I, Section 11 of the Indiana Constitution states that:

       The right of the people to be secure in their person, house, papers, and effects,
       against unreasonable search and seizure, shall not be violated; and no warrant
       shall issue, but upon probable cause, supported by oath or affirmation, and
       particularly describing the place to be searched, and the person or thing to be
       seized.

       The reasonableness of a search or seizure turns on a balance of: 1) the degree of

concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the

method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent

of law enforcement needs. Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Our Indiana

Supreme Court has held that “a search of trash recovered from the place where it is left for

collection is permissible under the Indiana Constitution, but only if the investigating officials

have an articulable basis justifying reasonable suspicion that the subjects of the search have

engaged in violations of the law that might reasonably lead to evidence in the trash.” Id. at

                                               7
357. Thus, the Litchfield court announced a two-part test for determining whether a trash

search was reasonable: 1) the search must be based upon an “articulable individualized

suspicion [that illegal activity is or has been taking place], essentially the same as is required

for a ‘Terry stop’ of an automobile” and 2) the trash must be retrieved in substantially the

same manner as the trash collector would take it. Id. at 364; also Teague v. State, 891 N.E.2d

1121, 1127-28 (Ind. Ct. App. 2008).

       Here, the Hastes concede that the officers retrieved the trash in substantially the same

manner as a trash collector would take it and instead challenge whether the police had

reasonable suspicion that they were engaged in criminal activity. The investigation began

with an anonymous tip that Jamie was growing marijuana at a particular address. “‘[A]n

anonymous tip is not enough to support the reasonable suspicion necessary for a Terry

Stop.’” State v. Litchfield, 849 N.E.2d 170, 174 (Ind. Ct. App. 2006) (hereinafter “Litchfield

II”) (quoting Wells v. State, 772 N.E.2d 487, 490 (Ind. Ct. App. 2002) (internal quotations

omitted)), trans. denied. Instead, “‘[a]nonymous tips must be accompanied by specific

indicia of reliability or must be corroborated by a police officer’s own observations to pass

constitutional muster.’” Id. (quoting Wells, 772 N.E.2d at 490).

       In Litchfield II, this court examined the constitutionality of a trash search that resulted

from a subpoenaed list of buyers of products from a gardening supply store. We treated the

initial information received from the buyers list as similar to an anonymous tip requiring

corroboration of criminal activity from the officer’s own observations. Id. at 174. In that

case, the police had taken steps as to other addresses on the list to make the otherwise

                                                8
anonymous tips more reliable indications of criminal activity, but had failed to do so as to the

Litchfields.   Id.   We therefore held that the search of the Litchfields’ trash was

unconstitutional, and in so doing, noted that the police had not driven by the Litchfields’

house to observe for signs of marijuana growing, did not investigate the Litchfields’ utility

usage, and did not investigate the Litchfields’ criminal histories. Id.

       Here, the police received an anonymous tip that Jamie was growing marijuana. Police

then ran a driver’s license search to confirm that his address was 53367 County Road 9, in

Elkhart. They also ran a criminal history check of Jamie that revealed various drug-related

offenses. The police drove by Jamie’s house and confirmed that his house was tan, which

corroborated the anonymous tipster, and subpoenaed his utility records. Based upon Trooper

Larsh’s observations of the residence as well as the Assessor’s file on the property’s various

dimensions, Trooper Larsh concluded that the electricity used at Jamie’s residence was far in

excess of an average house’s electricity usage. This is sufficient corroboration of the

anonymous tip to support the constitutionality of the trash pull.

                                       Search Warrant

       Upon conducting the trash pull, the police discovered evidence that prompted an

application for a search warrant of 53367 County Road 9 in Elkhart, Indiana. A search

warrant was issued and executed, and yielded evidence that was introduced at trial. The

Hastes argue that the trial court abused its discretion by admitting this evidence because the

warrant was not supported by probable cause.

       The Indiana Constitution requires probable cause for the issuance of a search warrant.

                                               9
Ind. Const. Art. 1, § 11; also Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct. App. 2008),

trans. denied. “Probable cause is a ‘fluid concept incapable of precise definition…[and] is to

be decided based on the facts of each case.’” Mehring, 884 N.E.2d at 376. In deciding

whether to issue a search warrant, the issuing magistrate must make a practical, common-

sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair

probability that evidence of a crime will be found in a particular place. Id. at 376-77. “The

reviewing court’s duty is to determine whether the issuing magistrate had a ‘substantial basis’

for concluding that probable cause existed.” Id. at 377. We afford the magistrate’s

determination significant deference as we focus on whether reasonable inferences drawn

from the totality of the evidence support that determination. Id. In determining whether an

affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to

be resolved in favor of upholding the warrant, and we will not invalidate a warrant by

interpreting probable cause affidavits in a hypertechnical, rather than commonsense, manner.

Id.

       In his affidavit, Trooper Larsh stated that he had found numerous fresh and non-wilted

complete and partial marijuana leaves and marijuana stems in a search of the Hastes’ trash.

He also stated that he found a dried marijuana stalk with roots and rolling papers, as well as

mail addressed to Jason, who was subsequently determined to have a criminal history that

included a drug offense. Based upon these discoveries, as well as Jamie’s criminal history

and the anonymous tip corroborated by the house’s appearance and electrical usage, Trooper

Larsh stated that he believed that marijuana growing, drying, or usage was taking place at

                                               10
53367 County Road 9 in Elkhart, Indiana. The search warrant application was made two

days after the trash search. It was thus reasonable for the issuing magistrate to conclude that

there was a “fair probability” that evidence of a crime would be found at the Hastes’ address.

The trial court therefore did not abuse its discretion by admitting evidence retrieved as a

result of the police search of the Hastes’ residence.

                                        Conclusion

       Although the investigation in this case began with an anonymous tip, the police

sufficiently corroborated the tip such that reasonable suspicion existed to support a

warrantless search of the Hastes’ garbage. That search yielded numerous items related to the

cultivation and use of marijuana. Trooper Larsh included a description of these items and the

steps he took to corroborate the anonymous tip in his affidavit seeking a search warrant. The

issuing magistrate could have reasonably concluded that there was a fair probability that

evidence of a crime would be found at the Hastes’ address. The trial court therefore did not

abuse its discretion by admitting evidence seized by police from the Hastes’ trash or

residence.

       We therefore affirm the Hastes’ convictions and sentences for Maintaining a Common

Nuisance, as a Class D felony, and Possession of Marijuana, as a Class D felony. However,

double jeopardy concerns require that we remand to the trial court with instructions to vacate

each conviction for Possession of Marijuana, as a Class A misdemeanor.

       Affirmed in part and remanded with instructions.

ROBB, C.J., and MATHIAS, J., concur.

                                              11
