MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 11 2017, 5:44 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Todd Ess                                                 Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Omid Petrelli,                                           October 11, 2017
Appellant,                                               Court of Appeals Case No.
                                                         49A02-1704-MI-741
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee.                                                Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1606-MI-23088



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017            Page 1 of 6
                                          Case Summary
[1]   After obtaining a search warrant, law enforcement opened a suspicious package

      addressed to Omid Petrelli (“Petrelli”) that contained $19,740 in cash. The

      State moved to transfer the money to the United States, and the trial court so

      ordered. Petrelli now challenges the transfer order, arguing that the money was

      unlawfully seized because of a defect in the underlying search warrant affidavit.


[2]   We affirm.



                            Facts and Procedural History
[3]   On June 14, 2016, Detective Gary Hadden (“Detective Hadden”) and his

      canine partner Leona examined several suspicious packages at an Indianapolis

      shipping company. After sniffing a parcel addressed to Petrelli, Leona

      indicated that she detected the odor of a controlled substance. Detective

      Hadden then applied for a search warrant, which was issued, and a subsequent

      search of the package revealed $19,740 in United States currency. The money

      was confiscated as proceeds of narcotics trafficking and money laundering.


[4]   Pursuant to Indiana Code Section 35-33-5-5(j), the State filed a motion seeking

      to transfer the money to the United States. Petrelli opposed the motion,

      arguing that the search was unlawful because the warrant was predicated upon

      a deficient affidavit. Following a hearing, the trial court granted the motion.


[5]   Petrelli now appeals.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017   Page 2 of 6
                                 Discussion and Decision
[6]   The propriety of a transfer order under Indiana Code Section 35-33-5-5(j) is

      dependent on the lawfulness of the search that led to the state obtaining the

      property in question. Ind. Code § 34-24-1-2(a) (providing that “[p]roperty may

      be seized . . . only if . . . the seizure is incident to a lawful . . . search”); Membres

      v. State, 889 N.E.2d 265, 269 (Ind. 2008) (applying Indiana Code Section 34-24-

      1-2(a) and concluding that “if the search or seizure . . . was unlawful, the

      turnover must be reversed”). The lawfulness of a search is a question of law,

      which we review de novo. Membres, 889 N.E.2d at 268.


[7]   Petrelli argues that the search was unlawful because the search warrant was not

      supported by a sufficient oath or affirmation. Both the Fourth Amendment to

      the United States Constitution and Article 1, Section 11 of the Indiana

      Constitution generally proscribe warrantless searches and require that a search

      warrant issue only upon probable cause, supported by oath or affirmation. As

      for the adequacy of the oath or affirmation, the Fourth Amendment and Article

      1, Section 11 have similar concerns—namely, that the oath or affirmation

      impress upon the swearing individual an appropriate sense of obligation to tell

      the truth. See Wallace v. State, 199 Ind. 317, 157 N.E. 657, 660 (1927) (observing

      that an oath or affirmation “must bear the countenance of truth, which is so

      infallible that either an action for damages or a criminal charge of perjury may

      be legally predicated thereon, if such statement is untrue”); State v. Holladay, 120

      S.C. 154, 112 S.E. 827 (1922) (concluding that the oath requirement was

      satisfied when the affiant stated to a magistrate judge, “I want to make this

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017   Page 3 of 6
      affidavit before you,” when the affiant knew that he was making an oath); see

      also United States v. Dunnigan, 507 U.S. 87, 97 (1993) (observing, in approving of

      perjury statutes, that “[a]ll testimony . . . has greater value because of the

      witness’[s] oath and the obligations or penalties attendant to it.”).


[8]   Independent of these constitutional provisions, Indiana Code Section 35-33-5-1

      provides that a warrant is properly issued “only . . . [when] supported by oath

      or affirmation,” and a related code section states in pertinent part:


              An affidavit for search substantially in the following form shall be
              treated as sufficient:


               . . . A B swears (or affirms, as the case may be) that he believes
              and has good cause to believe (here set forth the facts and
              information constituting the probable cause) that (here describe
              the things to be searched for and the offense in relation thereto)
              are concealed in or about the (here describe the house or place) of
              C D, situated in the county of                  , in said state.


              In accordance with Indiana Trial Rule 11, I affirm under the
              penalties for perjury that the foregoing representations are true.




                       (Signed) Affiant Date


      I.C. § 35-33-5-2(c). Indiana Trial Rule 11(B) provides that an oath is sufficient


              if the subscriber simply affirms the truth of the matter to be
              verified by an affirmation or representation in substantially the
              following language:

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017   Page 4 of 6
               “I (we) affirm, under the penalties for perjury, that the foregoing
               representation(s) is (are) true.


                                                          (Signed)                          ”


[9]    Here, at the bottom of the search warrant application, just above Detective

       Hadden’s electronic signature, the application states as follows: “I swear or

       affirm under the penalties for perjury that the foregoing is true.” Exh. 1.

       Petrelli does not dispute that the application states as much, but argues that the

       oath is rendered ineffective because of a statement made elsewhere in the

       document. That is, the following language appears on the first page of the

       application: “I swear (affirm), under penalty of perjury as specified by IC 35-44-2-

       1, that the foregoing and following representations in this document are true.”

       Id. (emphasis added). Petrelli points out that the cited code section was

       repealed in 2012 and its content, which criminalizes the act of perjury, now

       appears in Indiana Code Section 35-44.1-2-1. Thus, according to Petrelli,

       “Detective Hadden’s oath contains an obvious defect that cannot be undone.”

       Appellant’s Br. at 13.


[10]   We disagree. Detective Hadden made an oath—in two places—under the

       penalty for perjury, and the reference to the outdated code section amounts to

       mere surplusage. See Frink v. State, 568 N.E.2d 535, 536 (Ind. 1991) (refusing to

       reverse for technical error where “the purpose of the oath requirement was

       fulfilled”). We conclude that the probable cause affidavit satisfied the oath

       requirements set forth in the United States Constitution, Indiana Constitution,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017   Page 5 of 6
       and Indiana Code. Moreover, as Petrelli has alleged no other defect with the

       search warrant or ensuing search, we hereby affirm the transfer order.



                                               Conclusion
[11]   The probable cause affidavit contained an adequate oath to support the issuance

       of the search warrant; thus, the search that produced the $19,740 was lawful

       and the confiscated money was properly subject to the transfer order.


[12]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017   Page 6 of 6
