MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Jul 05 2017, 8:27 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
Barbara J. Simmons                                        Curtis T. Hill, Jr.
Oldenburg, Indiana                                        Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mario Gonzaga,                                            July 5, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1610-CR-2357
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Amy M. Jones,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G08-1511-CM-40807



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017        Page 1 of 9
                                           Case Summary
[1]   On November 15, 2015, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer Michael Wagner-Gilbert responded to a dispatch about a

      reckless driver on the northeast side of Indianapolis. Upon his arrival to the

      scene, Officer Wagner-Gilbert observed Appellant-Defendant Mario Gonzaga

      driving erratically. After stopping Gonzaga, Officer Wagner-Gilbert observed

      that Gonzaga had slurred speech, bloodshot and glassy eyes, the odor of

      alcoholic beverage on his breath, and poor balance. Believing that Gonzaga

      was impaired, Officer Wagner-Gilbert performed a portable breath test

      (“PBT”), and the result showed that Gonzaga had an alcohol content

      equivalent (“ACE”) of at least 0.15 gram of alcohol per 100 milliliters of his

      blood. Using this information, Appellee-Plaintiff the State of Indiana (“the

      State”) obtained a search warrant in order to draw a blood sample. The results

      of the blood sample revealed that Gonzaga had an ACE of 0.241.

[2]   On November 17, 2015, the State charged Gonzaga with Class A misdemeanor

      operating a vehicle while intoxicated endangering a person, Class A

      misdemeanor operating a vehicle with an ACE of 0.15 or more, and Class C

      misdemeanor operating a motor vehicle without ever receiving a license. The

      State tried Gonzaga at a bench trial on September 21, 2016. During the trial,

      Gonzaga orally moved to suppress the evidence of his blood draw. The trial

      court denied his motion and found Gonzaga guilty as charged. That same day,

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 2 of 9
      the trial court sentenced Gonzaga to an aggregate sentence of 365 days with

      361 days suspended to probation.

[3]   On appeal, Gonzaga contends that the trial court abused its discretion in

      admitting the evidence found pursuant to the search warrant. Specifically,

      Gonzaga argues that the warrant was deficient due to the presence of numerous

      misstatements. Because we disagree, we affirm.



                            Facts and Procedural History
[4]   Around midnight on November 15, 2015, IMPD Officer Wagner-Gilbert

      responded to a dispatch concerning a “reckless driver” near Post Road and

      Washington Street. Tr. p. 6. Upon Officer Wagner-Gilbert’s arrival to the

      scene, he witnessed Gonzaga driving a vehicle that matched the description

      from the dispatch. Officer Wagner-Gilbert observed Gonzaga make an “erratic

      left turn,” almost collide with his patrol car, and drive across three lanes of

      traffic. Tr. p. 8. After Officer Wagner-Gilbert activated his emergency lights

      and pursued the vehicle, Gonzaga stopped his car in the middle of the road.

      Officer Wagner-Gilbert approached Gonzaga on the driver’s side of the vehicle

      and asked him to move his car to the side of the road. Gonzaga was the only

      person in the vehicle. When Officer Wagner-Gilbert asked for Gonzaga’s

      driver’s license, Gonzaga responded that he did not have one. Officer Wagner-

      Gilbert later confirmed via the control operator that Gonzaga had never been

      issued an Indiana driver’s license.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 3 of 9
[5]   During the stop, Officer Wagner-Gilbert observed that Gonzaga’s breath

      smelled of alcoholic beverage, his speech was slurred, and he had bloodshot

      and glassy eyes. Believing that Gonzaga was extremely impaired, Officer

      Wagner-Gilbert asked Gonzaga to exit the vehicle. Once outside the vehicle,

      Officer Wagner-Gilbert noticed that Gonzaga could not maintain adequate

      balance and had to lean against his own vehicle for stability. Officer Wagner-

      Gilbert then administered a PBT. After administering the PBT, which

      indicated an ACE of greater than 0.15, Officer Wagner-Gilbert placed Gonzaga

      in handcuffs and transported him to the Arrestee Processing Center (“APC”).


[6]   After transporting Gonzaga to the APC, Officer Wagner-Gilbert met with

      Officer Craig Wildauer, an IMPD impaired driving investigator, and told him

      about the stop and his suspicion that Gonzaga was intoxicated. Officer

      Wildauer also noted that Gonzaga smelled of alcoholic beverage, his eyes were

      glossy and bloodshot, and he had difficulty staying balanced. Using the

      information he obtained from Officer Wagner-Gilbert, Officer Wildauer

      completed an affidavit for probable cause and applied for a search warrant for a

      blood sample from Gonzaga. The affidavit included the following information:

              On 11-15-15, at 12:23 am at 9100 E. Washington Street 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 that occurred on 11-15-15 at
              12:08 at 9100 E. Washington Street and tends to show that said
              person committed such offense; that unless samples of said blood
              are obtained for chemical analysis forthwith, the opportunity to
              make such analysis will be lost forever; and that the facts tending


      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 4 of 9
        to so establish grounds for issuance of a search warrant are as
        follow:


        1. I am an officer with the IMPD Department.


        2. In the course of my duties I had occasion to investigate:


          C. [X] the scene of an operating a vehicle while intoxicated.
        Officer Michael Wagner[-]Gilbert observed erratic and/or
        unlawful motor vehicle operation as follows: observed Mario
        Gonzaga operate a 2003 Honda with Indiana license plate #[]
        and observed the vehicle fail to stay within its lane markings at
        N. Post Road and E. Washington street, travelling southbound,
        then eastbound.


        4. I believe the above named individual was intoxicated because I
        learned through my investigation the suspect:


                 [X] Odor of alcohol beverage on their breath
                 [X] Eyes were glassy & bloodshot
                 [X] Displayed an abusive attitude
                 [X] Balance was very poor
                 [X] Leaning against vehicle

        P.B.T. Result: .17%


        5. The above named individual:


           D. [X] is unable to consent to a blood sample being taken
        because an appropriate interpreter was not available to translate
        the Indiana Implied Consent Law.


State’s Exhibit 1.


Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 5 of 9
[7]   The warrant was signed by a judge at 12:45am. After receiving the signed

      warrant, Officer Wildauer transported Gonzaga to Eskenazi Hospital to have

      his blood drawn. At Eskanazi, Nurse Jessica Rand drew blood from Gonzaga

      at 1:22am. The blood sample later revealed that Gonzaga’s blood had an ACE

      of 0.241.


[8]   On November 21, 2015, Gonzaga was charged with Class A misdemeanor

      operating a vehicle while intoxicated endangering a person, Class A

      misdemeanor operating a vehicle with an ACE of 0.15 or more, and Class C

      misdemeanor operating a vehicle without ever receiving a license. On

      September 21, 2016, a bench trial commenced during which Gonzaga orally

      moved to suppress the evidence obtained by his blood sample. Gonzaga argued

      that the warrant for his blood sample violated his Fourth Amendment Rights.

      However, the trial court denied Gonzaga’s motion to suppress and Gonzaga

      was found guilty on all three counts. The trial court sentenced Gonzaga to an

      aggregate sentence of 365 days with 361 days suspended to probation.



                                 Discussion and Decision
[9]   Gonzaga argues that the warrant for the blood draw was deficient because the

      affidavit for probable cause was vague and contained too many misstatements.

      “The admission of evidence is within the sound discretion of the trial court, and

      the decision whether to admit evidence will not be reversed absent a showing of

      manifest abuse of discretion by the trial court resulting in the denial of a fair

      trial.” Johnson v. State, 831 N.E.2d 163, 168-69 (Ind. Ct. App. 2005) (citing

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 6 of 9
       Williams v. State, 782 N.E.2d 1039, 1045 (Ind. Ct. App. 2003)), trans. denied.

       The Court does not reweigh evidence and considers conflicting evidence in a

       light most favorable to the trial court’s decision. See Warner v. State, 579 N.E.2d

       1307, 1309 (Ind. 1991) (citing Massey v. State, 473 N.E.2d 146, 147 (Ind. 1985));

       Coleman v. State, 490 N.E.2d 711, 713 (Ind. 1986)). The burden is on Gonzaga

       to rebut the presumption that the warrant is valid. See Perez v. State, 981 N.E.2d

       1242, 1251 (Ind. Ct. App. 2013) (citing Britt v. State, 810 N.E.2d 1077, 1080

       (Ind. Ct. App. 2004)).


[10]   Gonzaga argues that the court abused its discretion in admitting the blood

       sample from Gonzaga pursuant to the search warrant because there were

       inaccuracies in the affidavit that made the warrant invalid. Gonzaga also

       contends that the officer signing the affidavit for the warrant lacked personal

       knowledge thereby making the warrant invalid.


[11]   Officer Wildauer did use a template that had the “displayed an abusive

       attitude” box checked. Officer Wildauer did not notice this mistake until the

       day of the bench trial. However, once he noticed this mistake, Officer

       Wildauer immediately made the court aware of this error and even testified that

       at no time was Gonzaga abusive during his or Officer Wagner-Gilbert’s

       encounter with him. “Mistakes and inaccuracies of facts stated in the affidavit,

       however, will not vitiate the reliability of the affidavit by the magistrate so long

       as it is also determined that such mistakes were innocently made.” Johnson v.

       State, 472 N.E.2d 892, 900 (Ind. 1985). Furthermore, we recognize that Officer

       Wagner-Gilbert still had probable cause to find that Gonzaga was intoxicated

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 7 of 9
       despite him not displaying an abusive attitude. Indeed, the trial court found

       that “the abusive attitude quite frankly is probably absolutely one of the least

       signs of intoxication that you know—it’s one of the least probative signs.” Tr.

       p. 37. Therefore, because this mistake was made innocently and Officer

       Wagner-Gilbert still had probable cause to assume that Gonzaga was

       intoxicated, we conclude the affidavit was not deficient due to this minor

       mistake.


[12]   Gonzaga also refers us to Herron v. State, 44 N.E.3d 833 (Ind. Ct. App. 2015)

       and argues that Officer Wildauer’s use of boilerplate language and vague

       information makes the warrant invalid. This court is reminded that the use of

       boilerplate language is valid “as long as the affidavit contains sufficient facts

       specific to the search at issue to establish probable cause….” Rios v. State, 762

       N.E.2d 153, 160 (Ind. Ct. App. 2002). Furthermore, Herron is easily

       distinguished, from the instant matter. In Herron, the affidavit that was

       submitted did not contain detailed facts concerning the events that took place

       the night of the arrest nor who was operating the vehicle. Herron, 44 N.E.3d at

       836-37. In the current case, Officer Wildauer mentions that Officer Wagner-

       Gilbert “observed Mario Gonzaga operate a 2003 Honda” and that Gonzaga

       was the “only person in the vehicle” in the affidavit. Tr. p. 7-8. We conclude

       that the previously-mentioned statements are sufficient to determine who was

       driving the car. Furthermore, the affidavit does give a detailed account,

       including the date, time, and location that these events took place on the night

       of Gonzaga’s arrest.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 8 of 9
[13]   Once arrested, Officer Wagner-Gilbert transferred custody of Gonzaga to

       Officer Wildauer, who filled out the affidavit for probable cause. Gonzaga

       argues that Officer Wildauer was not authorized to do so. However, Officer

       Wildauer was able to fill out the affidavit for probable cause because, “as long

       as participating officers seeking the issuance of a search warrant collectively

       have probable cause, their individual knowledge can be imputed to the officer

       signing the affidavit in support of the search warrant.” Taylor v. State, 615

       N.E.2d 907, 911 (Ind. App. 1993) (citing Utley v. State, 589 N.E.2d 232, 237

       (Ind. 1992)). While he may not have been on the scene, Officer Wagner-

       Gilbert’s knowledge was imputed to Officer Wildauer; therefore, there was no

       error in him filling out the affidavit. Therefore, because the information

       presented within the affidavit was factual, the mistake was made innocently,

       and Officer Wagner-Gilbert’s knowledge was imputed to Officer Wildauer, we

       find that Gonzaga did not meet his burden of proving that the warrant was

       invalid.



                                               Conclusion
[14]   The trial court did not abuse its discretion when it denied Gonzaga’s motion to

       suppress evidence obtained pursuant to the valid search warrant. We affirm the

       judgement of the trial court.


[15]   The judgement of the trial court is affirmed.


       Brown, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017   Page 9 of 9
