MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 12 2018, 9:30 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




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                       Derick W. Steele
Attorney General of Indiana                               Deputy Public Defender
                                                          Kokomo, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         July 12, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CR-166
        v.                                                Appeal from the Howard Superior
                                                          Court
Ryan Stabler,                                             The Honorable George A.
Appellee-Defendant                                        Hopkins, Judge
                                                          Trial Court Cause No.
                                                          34D04-1709-F4-162



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018                    Page 1 of 13
[1]   The State appeals the trial court’s suppression of evidence found during a

      search of Ryan Stabler’s residence, arguing that the trial court erred by

      suppressing the evidence. Finding that the trial court erred, we reverse and

      remand.


                                                     Facts
[2]   Before September 19, 2017, the Kokomo Police Department had received

      complaints about illegal narcotics being sold from Stabler’s residence. On

      September 19, 2017, the manager of Mac’s Market, which is adjacent to

      Stabler’s residence, reported “a large amount of traffic in and out of the rear of

      that residence” and that “people would exit the rear of that residence . . . and

      they would go and use [the store’s] bathroom and leave needles behind.” Tr. p.

      5.


[3]   At approximately 6:20 p.m. that day, Kokomo Police Officer Adam Martin and

      other officers began surveilling Stabler’s residence. They monitored Stabler’s

      residence for a few hours, during which they made contact with three

      individuals after they left the residence.


[4]   The officers observed Brett Ray enter the rear of the residence and exit within

      minutes. Ray “was stumbling all over the alley.” State’s Ex. 1. As Officer

      Martin exited his patrol car, Ray “immediately stuck his hands in his front

      pocket and pulled it out very quickly” and turned away from the officer. Id.

      Ray said he had been at Mac’s Market and was walking home. After the officer

      told him that he was free to go, the officer walked to where he had observed

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 2 of 13
      Ray stick his hands in his pockets. Officer Martin saw a small clear plastic bag

      that had a gray rock-like substance in it on the ground next to his car; the

      substance was found to be heroin. Officer Martin then caught up with Ray and

      arrested him. Ray admitted that he threw the heroin on the ground when he

      saw the officer approach and that he had just come from Stabler’s house, where

      he had bought fifty dollars’ worth of heroin from Stabler.


[5]   Shortly thereafter, a pickup truck arrived at the house and left soon after.

      Officer Martin initiated a traffic stop on the vehicle. Jeremy Mitchell, the

      driver, immediately put something in his mouth and took a drink. Officer

      Martin suspected it was drugs. As a result of the traffic stop, Mitchell was

      arrested for possession of a syringe. He admitted that he used heroin and had

      just left Stabler’s house.


[6]   Following that stop, Officer Martin initiated another traffic stop on a vehicle

      that had stopped at Stabler’s house for a few minutes. During the stop, Dustin

      Castleman, the passenger, ran from the vehicle. The officer caught him and

      arrested him on active warrants for possession of a controlled substance.


[7]   Based on this investigation, Officer Martin completed a search warrant request

      and affidavit, seeking to search Stabler’s home and a vehicle. The affidavit

      stated that Officer Martin and the other officers


              began doing active surveillance on the residence of 1816 S
              Courtland in reference to numerous complaints of illegal
              narcotics being sold from this residence by Ryan Stabler . . . .
              The manager of Macs market [sic] which is directly to the east of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 3 of 13
              this residence said there is a heavy amount of foot traffic coming
              from the rear of the residence and the people use there [sic]
              restrooms and leave [numerous] amounts of syringes in the
              restroom.


      Id. The affidavit then described Officer Martin’s interactions with Ray,

      Mitchell, and Castleman. The search warrant described the property as


              1816 S Courtland Kokomo, [] IN 46902, described as a Tan 1
              story Tan sided house with dark colored shingles and the front
              door facing West as well as a Silver Dodge Stratus parked in the
              rear of the residence that is driven by Ryan Stabler . . . .


      Id.


[8]   Stabler’s residence is a one-story tan house with dark shingles, but the address is

      actually 1806 South Courtland. The incorrect address included in the affidavit

      and search warrant—1816 South Courtland—does not exist. On September 19,

      2017, a trial court judge signed the search warrant, and the officers searched

      Stabler’s house that same day. During the search, the officers found Stabler,

      other individuals, heroin, methamphetamine, an unidentified substance,

      prescription drugs, two digital scales, various smoking devices, and a ledger.

      The search warrant return was signed by Officer Martin and dated September

      20, 2017. It included the correct address and acknowledged the incorrect

      address that was in the affidavit and search warrant.


[9]   On September 20, 2017, the State charged Stabler with Level 4 felony dealing in

      methamphetamine, Level 4 felony dealing in a narcotic drug, Level 6


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 4 of 13
       possession of methamphetamine, Level 6 felony possession of a narcotic drug,

       Level 6 felony maintaining a common nuisance, and Class A misdemeanor

       possession of a controlled substance. On October 31, 2017, Stabler filed a

       motion to suppress, arguing that the search violated his rights under the federal

       and state constitutions.


[10]   On November 15, 2017, a suppression hearing took place. During the hearing,

       Officer Martin testified that the address in the search warrant and affidavit was

       a typographical error, that he accurately described Stabler’s house in the search

       warrant request, and that he searched the house he had intended to search.

       Officer Martin further testified that he likely gave the search warrant return to

       his captain, that someone in the police department would have placed a copy in

       the police records and taken another copy to the issuing judge, and that he did

       not know who in the department did that or when.


[11]   The trial court granted Stabler’s motion, identifying the following relevant

       concerns:


           • The affidavit does not establish the foundation for the surveillance of the
             house. It does not provide the source or verify the credibility of the
             numerous complaints of illegal narcotics being sold from the house. It
             also does not identify the manager of Mac’s Market who reported that
             people leave the house and use and leave syringes in the market’s
             restrooms; it does not verify the manager’s credibility; it does not state
             when or if the officers obtained the information from the manager; and it
             does not state that the officers attempted to verify the information
             provided by the manager.
           • Brett Ray admitted that he purchased heroin while he was in the house,
             and his admission was against his penal interest. The other two people

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 5 of 13
             the officers intercepted during surveillance did not tell the officers what
             took place or what they saw while they were in the house.
           • An incorrect address is included in the affidavit and search warrant. The
             search warrant describes the appearance of the house, but the affidavit
             does not, and no evidence about the appearance of the house was
             provided to the court that issued the search warrant.
           • The return of the search warrant did not comply with the statute that
             governs that procedure.

[12]   The State filed a motion to correct error, arguing for the first time that the good

       faith exception to the warrant requirement should apply. The trial court denied

       that motion. The State then filed a motion to dismiss the charges based on the

       trial court’s order, which the trial court granted. The State now appeals.


                                       Discussion and Decision
[13]   The State’s sole argument on appeal is that the trial court erred by granting

       Stabler’s motion to suppress. It offers several bases for its argument, which we

       restate as: the search warrant and affidavit meet statutory requirements to

       establish probable cause, the typographical error does not invalidate the search

       warrant, and no procedural error occurred in the filing of the search warrant

       return.1




       1
         The State also contends that the good faith exception applies here, making suppression improper. Under
       this exception, a “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.” Ind. Code § 35-37-4-5(a). However, the first time the State raised this issue to the trial court
       was in its motion to correct error. A party may not raise an issue for the first time in a motion to correct
       error. Van Winkle v. Nash, 761 N.E.2d 856, 859 (Ind. Ct. App. 2002). Failure to raise an issue before the trial
       court will result in waiver of that issue. Id. The State’s argument regarding the good faith exception,
       therefore, is waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018                       Page 6 of 13
[14]   When reviewing a trial court’s ruling on a motion to suppress evidence, we

       must determine whether substantial evidence of probative value supports the

       trial court’s decision. State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App. 2010).

       Where a trial court grants a motion to suppress, the State appeals from a

       negative judgment and must show that the trial court’s grant of the motion was

       contrary to law. Id. We will reverse a negative judgment only when the

       evidence is without conflict and all reasonable inferences lead to a conclusion

       opposite that of the trial court. Id. We will not reweigh the evidence nor judge

       witnesses’ credibility, and will consider only the evidence most favorable to the

       trial court’s ruling. Id.


[15]   The law regarding the probable cause requirement for a search warrant is well

       established:


               Probable cause is a fluid concept incapable of precise definition
               and must be decided based on the facts of each case. In deciding
               whether to issue a search warrant, the issuing magistrate’s task 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. The duty of the reviewing court is to
               determine whether the magistrate had a “substantial basis” for
               concluding that probable cause existed. 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. A “reviewing court” for these
               purposes includes both the trial court ruling on a motion to
               suppress and an appellate court reviewing that decision.
               Although we review de novo the trial court’s substantial-basis
               determination, we nonetheless afford significant deference to the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 7 of 13
               magistrate’s determination as we focus on whether reasonable
               inferences drawn from the totality of the evidence support that
               determination. “The decision to issue the warrant should be
               based on the facts stated in the affidavit and the rational and
               reasonable inferences drawn therefrom.” Utley v. State, 589
               N.E.2d 232, 236 (Ind. 1992). In determining whether an affidavit
               provided probable cause for the issuance of a search warrant,
               doubtful cases should be resolved in favor of upholding the
               warrant.


       Bradley v. State, 4 N.E.3d 831, 840 (Ind. Ct. App. 2014) (citations omitted).


[16]   Indiana Code section 35-33-5-2 governs the information to be contained in an

       affidavit for a search warrant. It provides in relevant part that


               (a) . . . no warrant for search or arrest shall be issued until there is
               filed with the judge an affidavit:


                        (1) particularly describing:


                                (A) the house or place to be searched and the things
                                to be searched for; or


                                (B) particularly describing the person to be arrested;


                                                            ***


                        (3) setting forth the facts known to the affiant through
                        personal knowledge or based on hearsay, constituting the
                        probable cause.


               (b) When based on hearsay, the affidavit must either:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 8 of 13
                        (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.


[17]   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

       the suspect that is not ordinarily easily predicted. Bradley, 4 N.E.3d at 840-41.

       These examples are not exclusive, and depending on the facts, other

       considerations may help establish the reliability of the informant or the hearsay.

       Id. at 841.


[18]   First, the trial court found the affidavit lacking information about the credibility

       of the complaints received about the house and of the report from the manager

       of Mac’s Market. An affidavit must set forth the facts known to the affiant

       through personal knowledge or based on hearsay that constitute the probable

       cause. I.C. § 35-33-5-2(a)(3). When the affidavit is based on hearsay, as it was

       here, the affidavit is valid if it contains information that establishes that the

       totality of the circumstances corroborates the hearsay. I.C. § 35-33-5-2(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018     Page 9 of 13
[19]   We find that Officer Martin’s probable cause affidavit contains information that

       establishes that the totality of the circumstances corroborates the hearsay.

       “Sufficiency need not rest on a single piece of information, but rather in the

       way the pieces fit together.” Utley, 589 N.E.2d at 236. Here, the pieces of

       evidence, when put together and viewed collectively, sufficiently establish

       probable cause to search Stabler’s residence. Officer Martin stated in his

       affidavit that, as the officers were conducting surveillance, they observed three

       individuals enter the residence for a short period of time. Officer Martin

       stopped the individuals when they left the residence. One of the individuals

       dropped a substance that tested positive for heroin; he admitted that he had just

       been at Stabler’s house, where he had bought fifty dollars’ worth of heroin from

       Stabler. “Declarations against penal interest can furnish sufficient basis for

       establishing the credibility of an informant[.]” Houser v. State, 678 N.E.2d 95,

       100 (Ind. 1997). The next individual swallowed something when approached

       by the officers and was found in possession of a syringe. The third individual

       fled from the police, and when caught, was arrested on open warrants for drug

       possession. This independent police investigation corroborates the reports that

       illegal activities had been taking place inside Stabler’s house. Thus, the

       evidence in the affidavit, when viewed collectively, sufficiently supports a

       finding of probable cause.


[20]   Second, the trial court also noted the incorrect address in the affidavit and

       search warrant, stating that although the search warrant describes the

       appearance of the house, the affidavit does not. Initially, we note that the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 10 of 13
       affidavit includes an address that has one incorrect digit and states that Mac’s

       Market is “directly to the east of this residence.” State’s Ex. 1. The search

       warrant described the residence as a tan one-story house with dark shingles and

       a front door facing west. Officer Martin testified that the incorrect address was

       a typographical error, that “1816 South Courtland” does not exist, and that the

       subsequent search was conducted at Stabler’s house.


[21]   Indiana courts have repeatedly upheld search warrants despite scrivener’s errors

       in the address as long as the warrant otherwise sufficiently described the place

       to be searched. E.g., Creekmore v. State, 800 N.E.2d 230, 235-37 (Ind. Ct. App.

       2003) (finding that incorrect directional coordinates in the search warrant did

       not require suppression in part because, despite the mistake, the warrant

       sufficiently described the property to be searched); Houser, 678 N.E.2d at 101

       (finding that the incorrect address in the search warrant did not invalidate the

       warrant because the warrant sufficiently described the property to be searched

       despite the mistake and the error was an innocent one). Although we do not

       condone the use of search warrants containing an incorrect street address, the

       warrant in this case sufficiently described the property to be searched despite the

       mistake. The record shows that the mistake was an innocent one and did not

       affect the probable cause determination. This mistake does not require

       suppression.


[22]   Finally, the trial court also expressed concern over the way in which the search

       warrant return was filed. In its order, the trial court found that the “officer who

       executes a search warrant is required to make a return of the warrant to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018   Page 11 of 13
       judge who issued the warrant,” citing Indiana Code section 35-33-5-4. Indiana

       Code section 35-33-5-4 provides that “[t]he officer who executed the warrant

       shall make a return on it directed to the court or judge, who issued the warrant,

       and this return must indicate the date and time served and list the items seized.”

       In other words, the statute only requires the officer who executed the warrant to

       direct the return to the issuing court or judge; it contains no requirement that the

       officer himself personally file the return. Thus, here, Officer Martin fulfilled his

       statutory duty by submitting the return to his police unit for filing.


[23]   The trial court further noted that the search warrant return was filed two

       months after the search, and that “[t]he entry does not provide any information

       justifying the delay of the return to the court.” Appealed Order p. 3. A delay in

       filing a return, however, does not require suppression of evidence as long as the

       defendant is not prejudiced. See, e.g., Webster v. State, 579 N.E.2d 667, 670 (Ind.

       Ct. App. 1991) (finding that a return that was not filed until a year after the

       search did not invalidate the search warrant because there is no requirement

       that the return be filed within a specific amount of time and there was no

       showing that the defendant was harmed by the delay). Here, there was no

       finding or evidence that Stabler was harmed by the delayed filing. 2 The way in

       which the search warrant was returned does not require suppression.




       2
         The trial court was also concerned that the search warrant authorized the search of a vehicle at Stabler’s
       residence because the affidavit does not refer to any vehicle, does not indicate how Officer Martin knew
       whether the vehicle was driven by Stabler, and does not indicate whether any relationship existed between
       the vehicle and any activities in the house. We agree with the trial court that the inclusion of the vehicle in
       the search warrant is improper because the supporting affidavit does not particularly describe the vehicle to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018                       Page 12 of 13
[24]   In sum, despite the mistake in the address, the affidavit and search warrant are

       valid, and the evidence seized does not require suppression.


[25]   The judgment of the trial court is reversed and remanded.


       Kirsch, J., and Bradford, J., concur.




       be searched as required by Indiana Code section 35-33-5-2. However, because the search warrant return
       identifies no evidence found in the vehicle, this issue is moot.
       The trial court also noted that the search warrant return shows that Stabler and another individual were
       searched even though the search warrant does not authorize the search of any individuals. We find no error
       with this issue. Once the officers executed the search warrant, entered the house, and observed illegal
       substances, they had probable cause to arrest the individuals inside. Once the individuals were arrested, the
       officers could conduct a search incident to arrest.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-166 | July 12, 2018                     Page 13 of 13
