                                                                                FILED
                                                                           Aug 31 2020, 10:19 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                        Jay T. Hirschauer
      Attorney General of Indiana                                Logansport, Indiana

      Ellen H. Meilaender
      Supervising Deputy Attorney General
      Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          August 31, 2020
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 20A-CR-421
              v.                                                 Appeal from the Cass Superior
                                                                 Court
      Michael Stone,                                             The Honorable Lisa Swaim, Judge
      Appellee-Defendant                                         The Honorable Leo T. Burns,
                                                                 Senior Judge
                                                                 Trial Court Cause No.
                                                                 09D02-1907-F4-6



      Altice, Judge.


                                                 Case Summary


[1]   The State appeals from the trial court’s grant of Michael Stone’s motion to

      suppress evidence found following the execution of a search warrant at his

      Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020                            Page 1 of 10
      residence. The trial court determined that the warrant was not supported by

      probable cause and that the officers executing the warrant did not rely on the

      warrant in good faith.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   In May 2019, Detective Joseph Nies with the Cass County Sheriff’s

      Department was investigating the theft of firearms from two local residences.

      The first involved a Sig Sauer 9-milimeter handgun owned by Cory Zeider and

      taken from a closet in his residence on or about March 7, 2019. Zeider reported

      no sign of forced entry and named two possible suspects – Brad Bell and Cody

      Putnam – who were friends of Zeider and knew where he kept a spare key.


[4]   The other stolen firearm was reported by Thomas Prater on May 1, 2019.

      Prater reported that his Ruger P-94 had been stolen from his house, and he

      named Putnam as a possible suspect. Putnam had previously lived with him

      and knew about Prater’s guns.


[5]   Detective Nies entered the serial numbers for the stolen firearms into a national

      database. He received a hit on the Ruger, which had been recovered during a

      traffic stop in Michigan on May 2, 2019. Maverick Waltz was in possession of

      the Ruger at the time of the stop. Detective Nies traveled to Michigan on May

      17, 2019, and he interviewed Waltz in jail. Waltz informed Detective Nies that

      he had received the Ruger from Putnam in exchange for debt forgiveness.


      Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020      Page 2 of 10
      Because the firearm was worth more than the debt, Waltz reported that he also

      gave Putnam some cash in the exchange.


[6]   After locating Putnam, Detective Nies interviewed him on May 23, 2019.

      Putnam confessed to burglarizing both residences and taking the firearms. He

      indicated that he used a card to enter Zieder’s residence and a spare key hidden

      outside to enter Prater’s residence. Regarding Waltz’s possession of the Ruger,

      Putnam indicated that he owed Waltz a debt, so he traded the Ruger for the

      debt and an additional sum of money. Additionally, Putnam reported that he

      had sold the Sig Sauer to Stone for $400 about three weeks ago because Stone

      liked the gun and wanted to keep it for himself. Putnam then identified Stone

      in a photo array. Though Detective Nies did not know him, Stone was known

      to the Cass County Drug Task Force and he had prior convictions for dealing

      methamphetamine and for a felony handgun charge. With information from

      other officers, Detective Nies determined Stone’s address, which was a single-

      family home in Logansport.


[7]   That same day, Detective Nies applied for a search warrant and testified at a

      probable cause hearing to the facts set out above. After hearing the evidence,

      the trial court authorized a search of Stone’s residence for a Sig Sauer P-320 9-

      milimeter handgun. The search, which was conducted in the early morning

      hours of May 24, 2019, resulted in the discovery of multiple firearms, though

      not the Sig Sauer, as well as drugs and $6000 in cash. Stone was arrested at the

      scene for possession of methamphetamine.



      Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020       Page 3 of 10
[8]    On July 23, 2019, the State charged Stone with Level 4 felony unlawful

       possession of a firearm by a serious violent felon and Level 5 felony possession

       of methamphetamine. In subsequent amendments, the State added charges of

       Level 5 felony possession of a narcotic drug (hydrocodone) and Class A

       misdemeanor theft.


[9]    Stone filed a motion to suppress all evidence seized as a result of the search

       warrant, and the trial court held a suppression hearing on October 15, 2019.

       The trial court granted the motion to suppress on December 20, 2019, expressly

       determining that “[t]he analysis of the facts in this case is controlled by the

       Indiana Supreme court’s holding in State v. Spillers, 847 N.E.2d 949 (Ind.

       2006).” Appellant’s Appendix at 81. The State now appeals, arguing that the

       warrant was supported by probable cause and, thus, that the trial court erred in

       suppressing the evidence found during execution of the search warrant.


                                            Discussion & Decision


[10]   Both the Fourth Amendment to the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution require probable cause for the issuance

       of a search warrant, which we have explained is a fluid concept incapable of

       precise definition and must be decided based on the facts of each case. State v.

       Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013). In deciding whether to

       issue a search warrant, a judge’s task is “simply to make a practical,

       commonsense decision whether, given all the circumstances set forth in the




       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020         Page 4 of 10
       affidavit, there is a fair probability that evidence of a crime will be found in a

       particular place.” Id.; see also Spillers, 847 N.E.2d at 952-53.


[11]   On review, we consider whether the issuing judge had a substantial basis for

       concluding that probable cause existed. Spillers, 847 N.E.2d at 953. A

       substantial basis requires the reviewing court, with significant deference to the

       issuing judge’s determination, to “focus on whether reasonable inferences

       drawn from the totality of the evidence support the determination of probable

       cause.” Id. While we give substantial deference to the issuing judge’s

       determination, our review of the trial court’s substantial basis determination

       following a motion to suppress is reviewed by this court de novo. 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.” Smith v. State, 982 N.E.2d 393, 405 (Ind. Ct. App. 2013) (quoting

       Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied), trans.

       denied.


[12]   Where a warrant is sought based on hearsay information, the probable cause

       affidavit (or testimony, as in this case) 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. Spillers, 847 N.E.2d at

       953-54 (citing Ind. Code § 35-33-5-2(b) and I.C. § 31-35-5-8(a)(1)). The

       trustworthiness of hearsay in this context can be established in a number of

       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020            Page 5 of 10
       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 the suspect that is not ordinarily

       easily predicted. Id. at 954. This list is not exclusive and, depending on the

       facts, other considerations may come into play. Id. Relevant here, an

       informant’s declaration against penal interest can furnish sufficient basis for

       establishing the informant’s credibility. See id.; Shipman, 987 N.E.2d at 1127.


[13]   In Spillers, our Supreme Court considered whether the informant’s statement

       qualified as one against penal interest. Craib, the informant, had been caught

       by police with more than three grams of cocaine, which was found during the

       execution of a search warrant at his home. Spillers, 847 N.E.2d at 956. After

       his arrest, Craib informed the detectives that Spillers was his drug source and

       that he had obtained cocaine from Spillers more than ten times over the last few

       months, most recently that same day. Craib also provided Spiller’s address and

       the make and model of his car, which were facts readily available to the general

       public.


[14]   The Court observed that statements by informants have qualified as against

       penal interest and been found sufficient to establish probable cause for issuance

       of a search warrant in cases where:


               the informant either volunteered inculpatory information after
               being arrested for a minor offense or for an offense only
               indirectly related to the information given to police, or the

       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020        Page 6 of 10
               informant was not under arrest at all and voluntarily gave police
               inculpatory information that the police would not otherwise have
               necessarily known or suspected.


       Id. at 955. After noting several such cases, the Court summarized, “[t]he

       underlying thread binding these cases together is that an informant, after arrest

       or confrontation by police, admitted committing criminal offenses under

       circumstances in which the crimes otherwise would likely have gone

       undetected.” Id. at 956. Indeed, the Court recognized, people do not lightly

       admit a crime and place critical evidence in the hands of the police by their own

       admissions and, thus, such admissions carry an indicia of credibility sufficient

       to support a finding of probable cause to search. Id.


[15]   The Court found such indicia of credibility lacking in Spillers because Craib had

       been “caught ‘red handed’ with drugs in his possession before naming his

       purported supplier.” Id. at 956. Though he admitted committing additional

       crimes of possession of cocaine, the Court noted that “his tip was less a

       statement against his penal interest than an obvious attempt to curry favor with

       the police.” Id. (citing Williamson v. United States, 512 U.S. 594, 607-08 (1994)

       (“A person arrested in incriminating circumstances has a strong incentive to

       shift blame or downplay his own role in comparison with that of others, in

       hopes of receiving a shorter sentence and leniency in exchange for

       cooperation.”)). Because the decision to reveal his source did not subject him

       to any additional criminal liability, the Court concluded that “under the

       circumstances Craib’s declarations were not against his penal interest and


       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020        Page 7 of 10
       therefore did not demonstrate that Craib was a credible source of information.”

       Id. at 956-57.


[16]   Similarly, in the case at hand, the trial court found that Putnam’s statements

       were not declarations against penal interest. We cannot agree, as the facts of

       this case are clearly distinguishable. Here, Putnam was not under arrest when

       he spoke with Detective Nies and the evidence against him was slim – far from

       being caught red handed. Two victims had listed Putnam as a possible suspect

       in the separate thefts of firearms because he was a friend who had access to

       each home. Further, the Ruger had been recovered shortly after it went missing

       in the possession of another individual – Waltz, who, while in jail, named

       Putnam as the source of the firearm. This was the only actual evidence linking

       Putnam to the theft of the Ruger, and no evidence linked him to the theft of the

       Sig Sauer, which had occurred about two months earlier.


[17]   During the interview with Detective Nies, Putnam admitted to burglarizing

       both residences and stealing the firearms, and he provided incriminating details

       not known by police, including describing how he gained entrance to each

       residence. Putnam also indicated that he transferred the Ruger to Waltz in

       exchange for debt forgiveness and cash, which was the same account given by

       Waltz. With regard to the Sig Sauer, Putnam reported that he sold the stolen

       firearm to Stone in exchange for $400. Thus, Putnam not only informed police

       where the stolen Sig Sauer might be recovered, he also made himself subject to

       a new criminal charge, based on the criminal transfer of a firearm to a serious

       violent felon. See Ind. Code § 35-47-2.5-16(b)(1) (“A person who provides a

       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020      Page 8 of 10
       firearm to an individual who the person knows … is ineligible to purchase or

       otherwise receive or possess a firearm for any reason other than the person’s

       age…commits criminal transfer of a firearm, a Level 5 felony.”).


[18]   Nothing about Putnam’s admissions indicates that he was attempting to shift

       blame, downplay his role in the offenses, or curry favor with the police. Rather,

       we find his statements to be true declarations against his penal interest,

       subjecting him to criminal liability and demonstrating that he was a credible

       source of information. The trial court erred in granting the motion to suppress

       based on Spillers.


[19]   Alternatively, Stone argues that even crediting Putnam’s statement, there was

       insufficient probable cause for issuance of the warrant because the State failed

       to establish a sufficient nexus between the Sig Sauer and his residence. He

       asserts that there is “absolutely nothing in the record to support a belief that

       Stone possessed the handgun at his residence.” Appellee’s Brief at 13.


[20]   To obtain a search warrant, the State must establish a fair probability that the

       thing sought – here the stolen Sig Sauer – will be found in the particular

       location being searched. See Fry v. State, 25 N.E.3d at 237, 245-46 (Ind. Ct.

       App. 2015), trans. denied. Here, Putnam indicated that Stone purchased the Sig

       Sauer from him three weeks earlier for $400 and that Stone liked the gun and

       wanted to keep it for himself. Under the circumstances, it was reasonable for

       Detective Nies to believe that the stolen gun would be found at Stone’s home.

       See Allen v. State, 798 N.E.2d 490, 497-99 (Ind. Ct. App. 2003) (permitting


       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020           Page 9 of 10
       search for murder weapons at apartment of one suspect’s cousin where suspects

       began spending time after the series of murders that began two months prior to

       the execution of the search warrant and noting that “handguns and rifles are the

       type of property that a person reasonably could be expected to keep for at least

       a period of a month and a half”); Foster v. State, 633 N.E.2d 337, 345 (Ind. Ct.

       App. 1994) (finding that a handgun, unlike controlled substances that can be

       expected to be consumed or distributed, was the “sort of property that the

       perpetrator reasonably could be expected to keep” and concluding that warrant

       for search of suspect’s residence issued twenty-eight days after murder was not

       stale).


[21]   In sum, we find that a reasonably prudent person could make a practical,

       common-sense determination, given all the circumstances set forth in Detective

       Nies’s testimony, that there was a fair probability the stolen Sig Sauer would be

       found at Stone’s home. Thus, the trial court erred in suppressing the evidence

       seized during the execution of the search warrant.


[22]   Reversed and remanded.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-421 | August 31, 2020      Page 10 of 10
