MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                    Aug 14 2017, 8:24 am
regarded as precedent or cited before any
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
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick R. Burt,                                         August 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1611-CR-2698
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C03-1503-F3-412



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017      Page 1 of 12
                                                  Case Summary
[1]   Derrick Burt appeals the trial court’s interlocutory order denying his motion to

      suppress evidence. We reverse and remand.


                                                           Issue
[2]   The sole issue Burt raises for review is whether a warrant issued for a body

      cavity search of Burt was supported by probable cause.


                                                           Facts
[3]   In March of 2015, Burt was incarcerated in the Indiana Department of

      Correction, where he was serving a sentence in another case. He was

      transported to the Madison County Jail for a modification hearing that was to

      be held on March 9, 2015.


[4]   Detective Jake Brooks of the Anderson Police Department was assigned to the

      Madison County Drug Task Force and was contacted by Sheriff Scott

      Mellinger concerning suspicion of heroin trafficking in the Madison County

      Jail. The sheriff told Detective Brooks about an interview the sheriff had with
                                    1
      Daniel Massengale, Burt’s cellmate while incarcerated in the Madison County

      Jail. Based upon this information, Detective Brooks met with Massengale, and




      1
          In the transcript for the case, Daniel Massengale’s last name also is spelled “Massingale.”


      Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017            Page 2 of 12
      Massengale disclosed that Burt was hiding heroin in his rectum and trafficking

      the drug to other inmates.


[5]   On March 10, 2015, a Madison County deputy prosecutor appeared before the

      trial court on an oral application for a limited warrant for the purpose of

      obtaining a body cavity search of Burt to locate “any items that possibly could

      be concealed in his rectum.” Defendant’s Ex. D, p. 4. A probable cause

      affidavit was not filed. Instead, that same day, Detective Brooks appeared

      before the trial court and testified that Massengale, after being Mirandized, told

      him that Burt possessed heroin, had “stuffed” the heroin in his rectum, had

      been in the Madison County Jail for approximately five or six days, had been

      transferred to the jail for a hearing, and that Massengale had observed Burt

      “trafficking with other inmates [the] substances from [Burt’s] rectum . . . [,

      p]assing it to inmates . . . .” Id. at 3-4. Detective Brooks testified that the last

      time Massengale saw Burt in possession of heroin was around 11:30 a.m. that

      day, when Burt had to remove the “package” from his rectum to use the

      bathroom. Id. at 4. Detective Brooks also testified that “[Massengale] actually

      described the substance as being wrapped in a glove. Like a latex glove and

      that the substances were wrapped in plastic bags a couple of times so it

      wouldn’t break in [Burt’s] rectum.” Id.


[6]   Later, the same day, the trial court found probable cause to issue the limited

      warrant. The trial court then issued an order that granted the State’s

      application for the warrant and directed the Madison County clerk to issue a

      warrant so that a cavity search of Burt could be conducted “for the purpose of

      Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 3 of 12
      collection of concealed illicit drugs.” Defendant’s Ex. B. However, the clerk

      did not issue the warrant until March 16, 2015.


[7]   On March 10, 2015, based upon the order issued by the trial court, the police

      took Burt into custody, and Burt was transported to a hospital where a body

      cavity search was conducted. Following an examination by a doctor at the

      hospital, a powdery substance contained in baggies was found in Burt’s rectum.

      The substance was seized and, later, tested and found to be heroin.


[8]   On March 16, 2015, the State filed a written application for a limited warrant to

      obtain a cavity search of Burt, and the State also charged Burt with dealing in a

      narcotic drug, as a Level 3 felony, and with possession of at least five grams of a

      narcotic drug, as a Level 5 felony. On that same day, the clerk issued the bench

      warrant.


[9]   Burt filed a motion to suppress the evidence discovered during the search,

      which the trial court denied on November 1, 2016. On November 3, 2016, Burt

      filed a motion to certify the trial court’s November 1 order for interlocutory

      appeal, which the trial court granted. Burt filed with this court a motion to

      accept jurisdiction over the interlocutory appeal on November 28, 2016. This

      court accepted jurisdiction over the interlocutory appeal on January 6, 2017.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 4 of 12
                                                       Analysis
[10]   Burt contends that the evidence seized during the cavity search should be
                                                                                                                 2
       suppressed under the Fourth Amendment to the United States Constitution.

       He specifically argues that the search warrant was invalid because Detective

       Brooks’ testimony lacked sufficient indicia of reliability to establish probable

       cause for the issuance of the warrant. According to Burt, Detective Brooks’

       testimony was based on uncorroborated hearsay from a source, that is, Burt’s

       cellmate, whose credibility was unknown. The State argues that Detective

       Brooks’ testimony contained reliable information establishing the credibility of

       Burt’s cellmate, and contained information establishing that the totality of the

       circumstances corroborated the hearsay.


[11]   We deferentially review a trial court’s denial of a defendant’s motion to

       suppress, construing conflicting evidence in the manner most favorable to the

       ruling. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Although we do not

       reweigh the evidence, we will “consider any substantial and uncontested




       2
         In his brief, Burt also “points out that [Detective] Brooks did the search of Burt without having the warrant
       in his hand. The warrant was not even issued until six (6) days after Burt was searched . . . .” Appellant’s Br.
       p. 13. However, we decline to address this issue because this case is resolved on other grounds. Also, Burt
       does not present a cogent argument as to how this procedural occurrence might have invalidated the search
       warrant. It is well-settled that we will not consider an appellant's assertion on appeal when he has failed to
       present a cogent argument supported by citation to authority and references to the record as required by the
       rules. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).
       Although Burt also contends that the evidence seized during the cavity search should be suppressed under
       Article I, Section 11 of the Indiana Constitution, he presents no separate argument and analysis with respect
       to the state constitution. Thus, any separate state constitutional claim is waived because of his failure to
       make a cogent argument under that provision. See Davis v. State, 907 N.E.2d 1043, 1048 n.10 (Ind. Ct. App.
       2009).


       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017             Page 5 of 12
       evidence favorable to the defendant.” Id. However, to the extent the motion

       raises constitutional issues, our review is de novo. Campos v. State, 885 N.E.2d

       590, 596 (Ind. 2008).


[12]   In deciding whether to issue a search warrant, “‘[t]he task of the issuing

       magistrate 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.’” State v.

       Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S.

       213, 238, 103 S. Ct. 2317 (1983)). The duty of a reviewing court is to determine

       whether the magistrate had a “substantial basis” for concluding that probable

       cause existed. Id. at 953 (quoting Gates, 462 U.S. at 238-39, 103 S. Ct. at 2332).

       “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.” Id. A “reviewing court” for these purposes includes both the trial court

       ruling on a motion to suppress and an appellate court reviewing that decision.

       Id. Although we review de novo the trial court’s substantial basis

       determination, we nonetheless afford “significant deference to the magistrate’s

       determination” as we focus on whether reasonable inferences drawn from the

       totality of the evidence support that determination. Id.


[13]   The Fourth Amendment to the United States Constitution protects persons

       from unreasonable search and seizure by prohibiting, as a general rule, searches

       and seizures conducted with a warrant that is not supported by probable cause.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 6 of 12
       U.S. Const. amend. IV. These constitutional principles are codified in Indiana

       Code Section 35-33-5-2, which details the information to be contained in an

       affidavit for a search warrant. Spillers, 847 N.E.2d at 953. Where a warrant is

       sought based on hearsay information, the affidavit must either:


               (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(b). Indiana Code Section 35-33-5-8 authorizes a judge to

       issue a search or arrest warrant without the affidavit required under Indiana

       Code Section 35-33-5-2 if the judge receives testimony subject to the penalties

       for perjury of the same facts required for an affidavit.


[14]   Uncorroborated hearsay from a source whose credibility is itself unknown,

       standing alone, cannot support a finding of probable cause to issue a search

       warrant. Gates, 462 U.S. at 227, 103 S. Ct. at 2326. The hearsay must exhibit

       some hallmarks of reliability. Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997).

       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

       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 7 of 12
       the suspect that is not ordinarily easily predicted. Id. These examples are not

       exclusive. “Depending on the facts, other considerations may come into play in

       establishing the reliability of the informant or the hearsay.” Id.


[15]   Burt argues that the probable cause testimony provided by Detective Brooks

       failed to establish Massengale’s credibility and did not contain information

       establishing that the totality of the circumstances corroborated the hearsay. We

       agree.


[16]   Regarding the first two examples for establishing the trustworthiness of the

       hearsay, Detective Brooks’ testimony did not indicate that Massengale gave

       correct information in the past, and the detective did not testify to an

       independent police investigation that corroborated Massengale’s statements.

       There was no evidence for instance that, after Burt’s arrival at the jail, the

       incidents of heroin activity increased. Regarding the third example, while there

       was a basis for Massengale’s knowledge, that is, sharing a cell with Burt, no

       testimony was presented to establish Massengale’s knowledge of Burt’s

       activities other than Massengale’s own statements. See, e.g., Cartwright v. State,

       26 N.E.3d 663, 669 (Ind. Ct. App. 2015) (holding hearsay statements

       insufficient to support probable cause where informant was generally familiar

       with manufacturing process for methamphetamine, but there was “nothing in

       the [probable cause] affidavit to establish the informant’s knowledge of

       Cartwright’s activities other than the informant’s own statements”), trans.

       denied. As for the fourth example, the statements Massengale provided to

       Detective Brooks did not predict any conduct or activity by Burt.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 8 of 12
[17]   Gates indicated that “a statement that the event was observed first-hand” entitles

       the tip to “greater weight than might otherwise be the case.” Gates, 462 U.S. at

       234, 103 S. Ct. at 2330. However, we find that Massengale’s assertion of

       firsthand knowledge carries little weight in light of the total lack of

       corroboration of the claim and no basis for concluding that he was a credible

       source. Id.; see Jaggers, 687 N.E.2d at 183 (holding that only factor supporting

       crediting of anonymous tip was claim that caller had personally witnessed

       criminal activity, but caller gave no information to enable neutral and detached

       magistrate to assess credibility of claim of firsthand knowledge). Although

       Massengale knew several details about Burt, including the fact that Burt had

       been in the jail between five and six days and that Burt had been brought to the

       jail for a hearing, the verified facts were unremarkable and did not establish any

       corroboration of Massengale’s claim that Burt was hiding heroin in his rectum.


[18]   Particularly since we are dealing here with a jailhouse informant, the level of

       substantiation and credibility must meet the minimum legal requirements. In

       absence of proof of Massengale’s credibility or corroboration under the totality

       of the circumstances, we find that Massengale’s hearsay statements were

       insufficient to establish probable cause. The lack of probable cause renders the

       subsequent body cavity search of Burt invalid. We understand the search did,




       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 9 of 12
                                                                 3
       in fact, recover heroin from Burt’s rectum. However, the law requires more

       than uncorroborated “snitching” from a cellmate. The trial court did not have

       sufficient legal authority to issue the search warrant.


[19]   Nevertheless, lack of probable cause does not automatically require the

       suppression of evidence obtained during a search. Cartwright, 26 N.E.3d at 670.

       Indiana law provides:


                (a) In a prosecution for a crime or a proceeding to enforce an
                ordinance or a statute defining an infraction, the 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.


                (b) For purposes of this section, evidence is obtained by a law
                enforcement officer in good faith if:


                   (1) it is obtained pursuant to:


                         (A) a search warrant that was properly issued upon a
                         determination of probable cause by a neutral and detached
                         magistrate, that is free from obvious defects other than
                         nondeliberate errors made in its preparation, and that was
                         reasonably believed by the law enforcement officer to be
                         valid; or




       3
         We note that corroboration of an informant’s hearsay and establishing his credibility must occur prior to the
       search, not after. The fruits of the search cannot be used to support or justify an illegal search. Manson v.
       State, 249 Ind. 53, 56, 229 N.E.2d 801, 803 (1967), cert. denied.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017           Page 10 of 12
                       (B) a state statute, judicial precedent, or court rule that is
                       later declared unconstitutional or otherwise invalidated;
                       and


                  (2) the law enforcement officer, at the time he obtains the
                  evidence, has satisfied applicable minimum basic training
                  requirements established by rules adopted by the law
                  enforcement training board under IC 5-2-1-9.


       I.C. § 35-37-4-5.


[20]   In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), the Supreme

       Court of the United States cautioned that certain police conduct would not

       qualify for this good-faith exception, including where the warrant was based on

       an affidavit so lacking in indicia of probable cause as to render official belief in

       the validity of the warrant entirely unreasonable. Id. at 923, 104 S. Ct. at 3421.

       Officers are reasonably charged with knowing the basic requirements of Indiana

       Code Section 35-33-5-2. Jaggers, 687 N.E.2d at 186. Detective Brooks should

       have known that establishing Massengale’s credibility or corroborating his

       hearsay statements was necessary. See Brown v. State, 905 N.E.2d 439, 447 (Ind.

       Ct. App. 2009). Therefore, we conclude that Detective Brooks’s reliance on the

       validity of the warrant was not objectively reasonable. The good-faith

       exception is not applicable.


                                                 Conclusion
[21]   The testimony presented by Detective Brooks to support the issuance of the

       search warrant lacked sufficient indicia of probable cause, and, therefore, the


       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 11 of 12
       warrant was invalid under the Fourth Amendment. The good-faith exception is

       inapplicable because Detective Brooks’s reliance on the validity of the warrant

       was not objectively reasonable. We reverse the trial court’s judgment and

       remand for further proceedings consistent with this opinion.


[22]   Reversed and remanded.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1611-CR-2698 | August 14, 2017   Page 12 of 12
