MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                  May 20 2019, 8:53 am

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
Matthew J. McGovern                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        George P. Sherman
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Clark D. Johnson,                                       May 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1993
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Kelli E. Fink,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1708-F2-4655



Altice, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019                       Page 1 of 14
                                               Case Summary


[1]   Following a bench trial, Clark D. Johnson was convicted of two counts of Level

      2 felony dealing in cocaine, one count of Level 6 felony operating a vehicle as a

      habitual traffic violator, and one count of Class A misdemeanor possession of

      marijuana. He was also adjudicated a habitual offender. On appeal, Johnson

      presents the following consolidated and restated issues: (1) whether the trial

      court properly admitted evidence found in Johnson’s apartment pursuant to the

      execution of a search warrant and (2) whether the State presented sufficient

      evidence to support the habitual offender adjudication.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On August 1, 2017, Evansville Police Department detectives with the narcotics

      task force received information from a confidential informant (C.I.) indicating

      that Johnson was involved in dealing large amounts of cocaine out of his

      apartment. The following day, after meeting with the C.I., discovering that

      Johnson had active arrest warrants, and briefly surveilling the apartment,

      officers stopped Johnson and arrested him when he left his apartment and drove

      to the lot of a nearby gas station. In a search incident to arrest, officers

      recovered a significant amount of cash from Johnson’s person and a small

      amount of marijuana from his vehicle.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 2 of 14
[4]   Immediately thereafter, Detective Michael Gray, with the assistance of the local

      prosecuting attorney, drafted a probable cause affidavit and applied for a search

      warrant for Johnson’s apartment. The affidavit provided the following factual

      basis for the request:


              On August 1, 2017, Detective Jeff Hands received information
              from a credible and reliable confidential informant regarding
              Clark Darnell Johnson (DOB: 12/01/1978). The confidential
              informant detailed that Johnson was selling cocaine from his
              apartment located at 525 S. New York Ave, Evansville,
              Vanderburgh County, Indiana and was last inside the apartment
              on July 29, 2017. Detective Hands identified Johnson and
              learned that he had two active warrants for his arrest. On August
              2, 2017, Detective Hands met with the confidential informant
              and was directed to Johnson’s apartment by the informant. The
              confidential informant directed detectives to the rear apartment
              of 525 S. New York Ave. identifying this as Clark Johnson’s
              residence.[ 1] The C.I. also informed detectives that Johnson
              drove a white suburban that was parked behind the residence.


              On August 2, 2017 after locating Johnson’s apartment, detective
              Gray established surveillance on Johnson’s apartment at
              approximately 1210 hours. Shortly after establishing
              surveillance, detective Gray observed Johnson leaving the
              apartment and driving a white Chevy Suburban. Johnson drove
              north through the alley and crossed Walnut, pulling on to the lot
              of the gas station located on the northeast corner of Walnut and
              Kentucky Ave. Det. Schmitt and Detective Hensley approached
              [Johnson] as he was sitting in the driver seat of the vehicle and




      1
        The residence was described elsewhere in the probable cause affidavit as a single-story home with three
      separate apartments. Each apartment had its own entrance. The individual entrances were situated with one
      at the front of the home, one on the side, and one in the back.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019                 Page 3 of 14
              placed him under arrest for his warrants. A check of Johnson’s
              driver status revealed a status of Habitual Traffic Violator.
              During a search of Johnson’s person, Detectives located
              $1,048.00 in U.S. Currency. Johnson had $750.00 wrapped with
              a rubber band in his left front pocket and $298.00 loose in his
              right front pocket. There was a single one hundred dollar bill and
              a single fifty dollar bill with this money. All other bills were
              twenty dollar bills or smaller. When asked about his
              employment, Johnson informed detectives that he was
              unemployed and attended Ivy Tech.


              During an Inventory of the vehicle, Detective Kingery located a
              chunk of green leafy substance that field tested positive for THC.
              This substance was located on the center console covered by a
              napkin and had a field weight of .6 gram. Johnson was the only
              occupant of the vehicle. Johnson refused consent to search his
              apartment. Detectives went to 525 S. New York and spoke with
              the residents of the front apartment. These residents affirmed
              that Clark Johnson lived in the rear apartment by himself.


      Appellant’s Appendix Vol. II at 98-99. Officers obtained and executed the search

      warrant on the afternoon of August 2, 2017, recovering over 200 grams of

      cocaine, 150 rounds of ammunition, a stolen handgun, a digital scale, over

      $1000 cash in a safe, and items generally used in the manufacturing and dealing

      of crack cocaine.


[5]   On August 4, 2017, the State charged Johnson with two counts of Level 2

      felony dealing in cocaine (Counts I and II) and one count each of Level 6 felony

      operating a vehicle as a habitual traffic violator (Count III), Level 6 felony theft

      (Count IV), and Class A misdemeanor possession of marijuana (Count V). The

      State also alleged that Johnson was a habitual offender.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 4 of 14
[6]   Johnson filed a motion to suppress on September 18, 2017, which the trial court

      denied following a hearing. Johnson pursued an interlocutory appeal of the

      denial of his motion to suppress, but this court refused to accept jurisdiction of

      the interlocutory appeal.


[7]   The matter proceeded to a bench trial on May 24, 2018, at which Johnson

      preserved his challenge to the evidence obtained as a result of the search

      warrant. The trial court found Johnson guilty of Counts I, II, III, and V but not

      guilty of Count IV. The presentation of the evidence on the habitual offender

      allegation was continued to July 10, 2018, at which time Johnson was found to

      be a habitual offender. Thereafter, on July 17, 2018, the trial court sentenced

      Johnson to an aggregate sentence of twenty-eight years in prison. Johnson now

      appeals. Additional information will be provided below as needed.


                                          Discussion & Decision


               1. Admission of Evidence Found Pursuant to a Search Warrant


[8]   Johnson contends that the search of his apartment violated the Fourth

      Amendment to the United States Constitution and Article 1, § 11 of the Indiana

      Constitution because the warrant was issued without probable cause. Further,

      he argues that the good faith exception is inapplicable here because no

      reasonable officer would have relied on the warrant.


[9]   “In deciding whether to issue a search warrant, the task of the issuing

      magistrate is to make a practical, common sense decision whether, given all the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 5 of 14
       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.” Hensley

       v. State, 778 N.E.2d 484, 487 (Ind. Ct. App. 2002). On review, we are tasked

       with determining whether the magistrate had a “substantial basis” for

       concluding that probable cause existed. Id. (quoting Query v. State, 745 N.E.2d

       769, 771 (Ind. 2001)). “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. “Sufficiency need not rest on a single

       piece of information, but rather in the way the pieces fit together.” Utley v.

       State, 589 N.E.2d 232, 236 (Ind. 1992), cert. denied.


[10]   The Fourth Amendment provides, “[t]he right of the people to be secure in their

       persons, houses, papers, and effects, against unreasonable searches and

       seizures, shall not be violated, and no Warrants shall issue, but upon probable

       cause, supported by Oath or affirmation, and particularly describing the place to

       be searched, and the persons or things to be seized.” The text of Article 1, § 11

       contains nearly identical language. These constitutional principles are partially

       codified in Ind. Code § 35-33-5-2, which governs the information that must be

       included in an affidavit for a search warrant. State v. Spillers, 847 N.E.2d 949,

       953 (Ind. 2006). An affidavit based on hearsay information must either:


               (1) contain reliable information establishing the credibility of the
               source … and establishing that there is a factual basis for the
               information furnished; or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 6 of 14
               (2) contain information that establishes that the totality of the
               circumstances corroborates the hearsay.


       I.C. § 35-33-5-2(b).


[11]   The trustworthiness of hearsay for the purpose of establishing probable cause

       can be established in a number of ways, including, among other things, 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. Spillers,

       847 N.E.2d at 954; Gerth v. State, 51 N.E.3d 368, 372 (Ind. Ct. App. 2016).


[12]   In this case, the State acknowledged at the suppression hearing that the affiant,

       Detective Gray, did not set out any information in the affidavit supporting the

       claim that the C.I. was a “credible and reliable confidential informant.”

       Appellant’s Appendix Vol. II at 98-99. This concession was appropriate because a

       bare-bones statement such as the one provided is inadequate to establish the

       credibility of the C.I. See Gerth, 51 N.E.3d at 373 (“statement in the affidavit

       that the CI had provided accurate information in the past fails to reveal whether

       such information had led to any arrests, or convictions, or whether it was

       readily-obtainable information that anyone could have provided, or how long

       ago or how many times the CI had provided information”); Snover v. State, 837

       N.E.2d 1042, 1050 (Ind. Ct. App. 2005) (aside from conclusory statement,

       affidavit provided “no evidence by which the issuing judge could have

       determined the confidential informant had credibility” and failed to indicate
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 7 of 14
       “whether the confidential informant had provided reliable information on one

       occasion or on multiple occasions”), trans. denied; Cf. U.S. v. May, 399 F.3d 817,

       824-26 (6th Cir. 2005) (reliability of confidential informant established where

       affiant stated that the source had furnished information for a period of six

       months, had worked with the affiant officer in the investigation of this matter,

       and had provided assistance in unrelated drug investigation cases).


[13]   Because Detective Gray did not establish the credibility of the C.I., we must

       look to whether other information contained in the affidavit “establishes that

       the totality of the circumstances corroborates the hearsay.” I.C. § 35-33-5-

       2(b)(2). In this regard, the State observes that the C.I. met with Detective Hand

       and pointed out Johnson’s apartment, which the C.I. indicated he had been in

       three days prior to the search. The C.I. also specified that Johnson drove a

       white suburban that was parked behind the residence. That same day, officers

       established surveillance and determined that Johnson indeed lived in the

       apartment and drove a white suburban. This is not the type of corroboration,

       however, that meaningfully corroborates the C.I.’s hearsay statements. See

       Gerth, 51 N.E.3d at 374 (“It is well-settled that police cannot rely upon facts

       ‘readily available to the general public’ to corroborate an informant’s

       statements.”) (quoting Cartwright v. State, 26 N.E.3d 663, 669 (Ind. Ct. App.

       2015), trans. denied); Hayworth v. State, 904 N.E.2d 684, 696 (Ind. Ct. App. 2009)

       (independent investigation by police inadequate to establish informant’s

       credibility where investigation corroborated only publicly available facts such as




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 8 of 14
       defendant’s address, a truck near the property, and a generator supplying power

       to the home).


[14]   The only possible corroboration of the C.I.’s information came from the search

       incident to arrest. The affidavit establishes that while surveilling Johnson’s

       apartment, where he lived alone, he was observed leaving in his white

       suburban. Because he had active warrants, officers stopped and arrested him.

       Police recovered a user amount of marijuana from inside Johnson’s vehicle and

       a significant amount of cash split between his two front pockets. The marijuana

       provides no corroboration of the C.I.’s statement that Johnson was dealing

       cocaine out of his apartment, but we cannot say the same about the cash.

       Johnson had over $1000 in his pockets, with $750 wrapped in a rubber band in

       one pocket and the rest loose in his other front pocket. All but two of the bills

       were $20 bills or smaller. As Detective Gray averred based on his training and

       experience, persons involved in unlawful drug sales frequently have large

       quantities of cash on their persons. The cash in Johnson’s pocket certainly

       constituted a large quantity of cash, especially for an unemployed student.


[15]   Johnson would have us consider independently the C.I.’s credibility and the

       evidence obtained during the search incident to arrest. The task of the issuing

       judge, though, is to determine whether the totality of the circumstances

       corroborates the hearsay, which requires a consideration of how the various

       pieces of information fit together. Here, the cash found on Johnson’s person

       shortly after he left his apartment at least partially corroborates the C.I.’s report

       that Johnson had been recently dealing drugs out of his apartment. See U.S. v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 9 of 14
       Mays, 593 F.3d 603, 609 (7th Cir. 2010) (“the sizeable sum of cash Mays was

       carrying when he was arrested … further corroborated the informant’s

       statements that Mays was involved in drug dealing”), cert. denied.


[16]   We acknowledge that this corroboration is likely too slim to constitute probable

       cause that cocaine and related contraband would be found in Johnson’s

       apartment. Regardless, we conclude that the good faith exception to the

       exclusionary rule applies in this case.


[17]   Under the good faith exception, illegally obtained evidence is not excluded if

       law enforcement acted in “objectively reasonable reliance” on what they

       thought was a valid warrant. Wright v. State, 108 N.E.3d 307, 314 (Ind. 2018).

       The good faith exception, which applies in Indiana and federal jurisprudence,

       has been codified in Ind. Code § 35-37-4-5. In relevant part, the statute

       provides for the good faith exception where the challenged evidence was

       obtained pursuant to “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”. I.C. § 35-37-4-5(b)(1)(A).


[18]   “The exclusionary rule is designed to deter police misconduct, and in many

       cases there is no police illegality to deter.” Hensley, 778 N.E.2d at 489 (citing

       U.S. v. Leon, 468 U.S. 897, 920-21 (1984)). Although the magistrate or judge is

       responsible for determining whether an officer’s allegations establish probable


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 10 of 14
       cause, an officer’s reliance on this judicial probable-cause determination must

       be objectively reasonable. Id. Under this objective standard, police officers are

       required to have a reasonable knowledge of what the law prohibits, but

       “imposing on officers the obligation to second guess a magistrate’s decision in

       all but the most obvious instances of an affidavit lacking an indicia of probable

       cause is not a burden the law anticipates.” Jackson v. State, 908 N.E.2d 1140,

       1144 (Ind. 2009).


[19]   In this case, Johnson does not argue that false information was provided in the

       warrant, that the warrant was facially defective, or that the issuing judge was

       not detached and neutral. Thus, suppression is appropriate here only if the

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

       belief in the existence of the warrant unreasonable.” Smith v. State, 982 N.E.2d

       393, 407 (Ind. Ct. App. 2013), trans. denied. As discussed above, although there

       may not have been sufficient probable cause to support the issuance of the

       warrant, there was certainly some indicia of probable cause to believe evidence

       of drug dealing would be found in Johnson’s apartment. In other words, there

       was enough indicia of probable cause for the officers executing the warrant to

       rely on the warrant in good faith. Accordingly, we affirm the trial court’s

       decision to admit the evidence found as a result of the search warrant.


                                            2. Habitual Offender


[20]   Johnson contends that the State failed to present sufficient evidence to support

       the habitual offender enhancement. As with other sufficiency claims, we do not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 11 of 14
       reweigh the evidence but rather look at the evidence in the light most favorable

       to the judgment. White v. State, 963 N.E.2d 511, 518 (Ind. 2012).


[21]   To prove that Johnson was a habitual offender the State was required to

       establish beyond a reasonable doubt that he had accumulated two prior

       unrelated felonies and that at least one of these prior felonies was not a Level 6

       felony or a Class D felony. See Ind. Code § 35-50-2-8(b). The State alleged

       Johnson had three prior unrelated felonies and, at trial, introduced into

       evidence certified conviction records for each prior felony. Based on the

       documentary evidence, the trial court found that each of the predicate felonies

       had been proven beyond a reasonable doubt.


[22]   On appeal, Johnson does not dispute that the prior felonies, if established by

       sufficient identity evidence, satisfy the statutory requirements. Additionally, he

       acknowledges that “[e]ach set of exhibits for each predicate cause number

       contain the same identifying, biographical information as the charging

       information and chronological case summary in the instant case.” Appellant’s

       Brief at 37. Johnson simply argues that the State was required to provide more

       than just documentary evidence.


[23]   It is well established that identity may be proven by circumstantial evidence.

       See Staub v. State, 567 N.E.2d 87, 93 (Ind. 1991). “If the evidence yields logical

       and reasonable inferences from which the trier of fact may determine it was

       indeed the defendant who was convicted of felonies twice before, then sufficient




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019   Page 12 of 14
       connection has been shown.” Id. (quoting Corker v. State, 455 N.E.2d 319, 321

       (Ind. 1983)).


[24]   During the habitual offender phase, the State presented Exhibits H-1 and H-2,

       the charging information and chronological case summary (CCS), respectively,

       for the instant case. These documents listed Johnson’s name, date of birth,

       social security number, and driver’s license number. They also described

       Johnson as a 6-foot, 225-pound black male.


[25]   To establish the prior convictions, the State presented Exhibits H-3 (2009

       conviction for Class C felony possession of cocaine), H-4 (2001 conviction for

       Class D felony resisting law enforcement), and H-5 (2004 conviction for Class

       D felony possession of marijuana), which included the CCS, charging

       information, plea agreement, and other related certified records for each prior

       conviction. These exhibits revealed the same social security number and date

       of birth for the defendant as that in Exhibits H-1 and H-2. All of the exhibits

       also provided the same (or virtually the same) physical description and name of

       the defendant, 2 and all but Exhibit H-4 (which did not list a driver’s license

       number) included the same driver’s license number.


[26]   This evidence was sufficient to establish that the defendant in each case – the

       underlying and prior felony cases – was the same individual and that Johnson




       2
        On one document the defendant’s weight was listed as 220 as opposed to 225 pounds, and the defendant’s
       name varied on the documents from Clark D. Johnson to Clark Johnson to Clark Darnell Johnson.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019                Page 13 of 14
       had committed the three prior unrelated felonies as charged. See Gentry v. State,

       835 N.E.2d 569, 574 (Ind. Ct. App. 2005) (“A reasonable jury could certainly

       find that the matching names, dates of birth and social security numbers were

       sufficient to prove that the individual discussed in the documents was the

       present appellant.”); Lewis v. State, 769 N.E.2d 243, 246-47 (Ind. Ct. App. 2002)

       (sufficient evidence found where the State relied solely on the identifying

       information – social security number and physical description – from the

       charging informations for the underlying and prior felonies), trans. denied. 3 The

       habitual offender determination was supported by sufficient evidence.


[27]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       33
         We reject Johnson’s invitation to reconsider Lewis and Gentry. We do not find these cases inconsistent
       with Straub, in which our Supreme Court noted that certified copies of judgments containing the same or
       similar name as the defendant’s may be introduced to prove the prior felonies but are not sufficient alone to
       identify the defendant as being the same person named in the documents. Straub, 567 N.E.2d at 93. Here,
       the documents contain substantial identifying information other than just the defendant’s name.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1993 | May 20, 2019                     Page 14 of 14
