MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 19 2019, 9:47 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.,
Deputy Public Defender                                   Attorney General of Indiana
Kokomo, Indiana                                          Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Cooper,                                             March 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1820
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1610-F6-1117



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019                Page 1 of 13
[1]   Gary Cooper appeals his convictions for maintaining a common nuisance and

      possession of paraphernalia as level 6 felonies. He raises one issue which we

      revise and restate as whether the trial court abused its discretion in admitting

      certain evidence. 1 We affirm.


                                         Facts and Procedural History

[2]   On October 26, 2016, Kokomo Police Officer Nate Gibson signed an Affidavit

      for Search Warrant which states in part:


               The affiant is a 4.5 year veteran of the Kokomo Police
               Department. The Affiant is a Patrol Officer for the Kokomo
               Police Department. The Affiant affirms under the pains and
               penalties of perjury that this statement is true and accurate to the
               best of my knowledge and belief.

               On today’s date 10/26/2016, I Officer N. Gibson #405 was on
               duty in a full marked patrol vehicle conducting surveillance on
               the above residence 2548 N. Buckeye Kokomo, IN due to having
               several anonymous drugs complaints of Gary Cooper living there
               and is believed to be in involved [sic] drug activity.

               I drove past 2548 N. Buckeye Kokomo, IN and observed a 2007
               Dodge Nitro in front of the residence. The Dodge bearing
               Indiana driver’s license plate of VV1990 which the BMV file
               returned back to Gary Cooper. I then parked (1) city block away
               from the 2548 N Buckeye residence and later watched and
               identified Gary Cooper walked [sic] out from the residence along
               with a white female and a black male. Gary then drove north on
               Buckeye St and turned left on or west onto Gerhardt St Kokomo,



      1
        In his statement of issues, Cooper lists a second issue as whether the trial court erred in sentencing him.
      However, Cooper does not mention the sentencing order in his argument section or develop any argument
      regarding his sentence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019                     Page 2 of 13
        IN without signaling the turn. I then initiated a traffic stop with
        the Dodge Nitro and identified Gary Cooper as the driver. The
        front seat passenger was identified as Sheena Jones (DOB: 11-25-
        85) and Kenneth Bradley (DOB: 11-8-1973) as the backseat
        passenger. I immediately observed Kenneth holding onto a clear
        plastic bag which appeared to be plant like material. I asked
        Kenneth to step out of the Nitro where he was placed into
        handcuffs. I then asked him where the baggie was in his hand
        and he said he stuffed it in the seat. I located that clear plastic
        baggie containing plant like material that later field tested
        positive for Marijuana in the back seat where Kenneth stated the
        baggie was at. I also located a large amount of US currency on
        Kenneth which was later counted in the presence of myself along
        with Officer Toth which totaled $1,460.00 of US currency. I
        asked Gary what his current address was and he told me 2548 N
        Buckeye. I asked Gary where they were heading to tonight and
        he stated they just had left his residence and was taking Kenneth
        to work at Olive Garden. I asked Gary if there was anyone else
        back at his residence and he stated maybe a female but that
        should be it. Gary told me he had only been living at 2548 N
        Buckeye for a short time now.

        While on the traffic stop K9 Officer C. Fourkiller arrived and
        utilized his K-9 Maxwell to conduct an exterior sniff around the
        vehicle. Officer Fourkiller informed me Maxwell gave a positive
        alert on the vehicle. I searched the vehicle and later found spice
        in the female’s purse. All individuals inside the vehicle where
        [sic] later taken into custody. Indiana State Trooper Kyle Miller
        arrived and stood by on the traffic. I then asked Trooper Miller if
        he could go to the residence of 2548 N Buckeye and stand by on
        the residence while I went back to the Police station to type up a
        search warrant and he did. While waiting on Martins wrecker
        service, Kokomo dispatch advised ISP was code 10 at the 2548 N
        Buckeye residence. I arrived and Trooper Miller advised a
        female came to the door and while talking with her at the front
        door of 2548 N Buckeye he observed a white male standing near
        the kitchen area without a shirt on. For his safety he asked him

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 3 of 13
              to come to the door to talk to him which he started to then he
              [sic] took off towards a bedroom. Trooper Miller stated for his
              safety he ran in after the male and watch him grab something
              from underneath a bed mattress. Trooper Miller was unable to
              see what he had grabbed. Trooper Miller tried grabbing the male
              where the male later was able to resist Trooper Miller and get
              away out the back door along with the female.


      Defendant’s Exhibit A. Officer Gibson also prepared a search warrant which

      specified a search for “Marijuana, and illegal drug paraphernalia, ledgers, cell

      phones, computers and packaging materials such as baggies, Monies, and any

      other items associated with the use, manufacture, and sales of Marijuana . . . .”

      State’s Exhibit 3. That same day, Judge Douglas Tate signed the search

      warrant.


[3]   Officer Gibson executed the search warrant and found a digital scale, a plastic

      baggie containing a gray rock-like substance that later tested positive for

      methamphetamine, a cell phone, a syringe with liquid in it which tested positive

      for methamphetamine, other digital scales with residue on them which tested

      positive for methamphetamine in another room, drug paraphernalia, smoking

      devices, mail addressed to Cooper, and checks with Cooper’s name.


[4]   On October 27, 2016, the State charged Cooper with: Count I, possession of

      methamphetamine as a level 6 felony; Count II, maintaining a common

      nuisance as a level 6 felony; Count III, unlawful possession of a syringe as a

      level 6 felony; and Count IV, possession of paraphernalia as a class C

      misdemeanor.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 4 of 13
[5]   On May 18, 2017, Cooper filed a motion to suppress any evidence seized as a

      result of the search of his residence. On September 22, 2017, the court held a

      hearing on Cooper’s motion, and Officer Gibson testified. At the conclusion of

      the hearing, the court stated:


              Well, I think if we look at the affidavit there is a nexus between
              the car being driven by Gary Cooper, passengers and the house
              and that all three of those individuals had just left the house. The
              Defendant’s arguments become much more interesting and I
              think much more compelling if the affidavit itself bears that out,
              but the affidavit goes on to talk about what Trooper Miller
              observed between the traffic stop and when the warrant was
              actually signed and issued. . . . And the real question is, and
              really does I think go to the parameters established by United
              State v. Leon, as to whether or not there is a, you know, even if
              there were, even if the affidavit is bad, whether or not a good
              faith acceptance [sic] should apply.

                                                   *****

              There has been no evidence whatsoever to indicate any bad faith
              on the part of Officer Gibson or any evidence not contained in
              the affidavit or anything else that he knew or should have known,
              that Judge Tate would have found a different result, and Judge
              Tate validated and gave him a search warrant. I think that
              Officer Gibson was acting in good faith when he served it.


      Transcript Volume II at 49-50. The court denied Cooper’s motion to suppress.


[6]   At the jury trial, Officer Fourkiller testified that he arrived at the scene of the

      traffic stop and conducted a drug sniff on the exterior portion of the car using

      his canine who alerted. Officer Gibson testified that he observed Cooper’s

      residence in the early afternoon of October 26, 2016, saw three people including

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 5 of 13
      Cooper and Bradley walk out of the residence, go straight to a Dodge Nitro,

      enter the vehicle, travel north on Buckeye Street, and make a left turn without

      using a turn signal. He testified that he conducted a traffic stop, observed that

      Bradley kept fidgeting with an item in his hand that he was able to see was a

      knotted clear plastic bag with what appeared to be plant material inside, asked

      Bradley to step out of the vehicle, and placed Bradley in handcuffs. Officer

      Gibson testified that he conducted a search of the vehicle and found a vial of

      plant material inside of Jones’s purse. He also testified that “[t]he baggie that

      was on Kenneth Bradley in the back seat, that was also found but, as I said

      earlier in the traffic stop when he was fumbling around with something in his

      hand, I found the plant-like material in the plastic bag in the back, in the rear

      seat of the vehicle that he was set next, that was next to.” Id. at 88. Cooper’s

      counsel objected when the prosecutor began asking questions regarding the

      search of the residence, and the court overruled the objection and indicated it

      would show a continuing objection.


[7]   On cross-examination, Officer Gibson testified that spice was taken from Jones

      and that there was no contraband on Cooper at the scene of the traffic stop. He

      also testified that Trooper Kyle Miller went to the house to secure it while he

      went for the warrant, a female came to the door after Trooper Miller knocked,

      Trooper Miller saw a white male standing back by the kitchen, Trooper Miller

      asked that man to come to the door, and the man ran into the bedroom,

      grabbed something, and ran.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 6 of 13
[8]    After the State rested, Cooper testified that he did not know that contraband

       was in the dresser where he kept his clothes and stuff. He testified that the

       scales were not in the house when he left and that he had been living there for

       about two weeks. He stated that before he was pulled over he picked up

       Bradley to take him to work and that they subsequently stopped to see if Jones

       wanted “to ride out there and back with [him].” Id. at 128. He testified that

       they “had about a half hour extra time or thirty minutes or something, forty

       minutes extra, so we stopped back by where I was staying at Cathy’s house

       there.” Id. He stated that Cathy Hood was the person who owned the house

       where he was staying, and that he and his passengers were at the residence for

       ten of fifteen minutes when Jamie Botnick and William Hancock arrived. He

       stated that, when he left to give Bradley a ride to work, Hood, Hancock,

       Botnick, and Jesse Lawless remained at the residence, that he did not place any

       drugs in the house, did not place any drugs near the checkbooks, did not see

       anybody take drugs in his house before he left, and did not know that his

       passengers had drugs on them.


[9]    The jury found Cooper guilty of Count II, maintaining a common nuisance,

       and Count IV, possession of paraphernalia, and not guilty of the remaining

       counts. The court sentenced Cooper to 913 days executed.


                                                   Discussion

[10]   The issue is whether the trial court erred in admitting certain evidence.

       Although Cooper originally challenged the admission of the evidence through a

       motion to suppress, he now challenges the admission of the evidence at trial.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 7 of 13
       Thus, the issue is appropriately framed as whether the trial court abused its

       discretion by admitting the evidence. See Guilmette v. State, 14 N.E.3d 38, 40

       (Ind. 2014). “Because the trial court is best able to weigh the evidence and

       assess witness credibility, we review its rulings on admissibility for abuse of

       discretion and reverse only if a ruling is ‘clearly against the logic and effect of

       the facts and circumstances and the error affects a party’s substantial rights.’”

       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994

       N.E.2d 252, 260 (Ind. 2013)). “[T]he ultimate determination of the

       constitutionality of a search or seizure is a question of law that we consider de

       novo.” Id.


[11]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Id. If the

       foundational evidence at trial is not the same as that presented at the

       suppression hearing, the trial court must make its decision based upon trial

       evidence and may consider hearing evidence only if it does not conflict with

       trial evidence. Guilmette, 14 N.E.3d at 40 n.1. To the extent that we review the

       court’s finding of probable cause to issue the warrant, we apply a deferential

       standard of review, “affirming the . . . decision to issue the warrant if a

       ‘substantial basis’ existed for finding probable cause.” McGrath v. State, 95

       N.E.3d 522, 527 (Ind. 2018) (quoting Watkins v. State, 85 N.E.3d 597, 599 (Ind.

       2017)).


[12]   Under the Fourth Amendment to the U.S. Constitution, “[t]he right of the

       people to be secure in their persons, houses, papers, and effects, against

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 8 of 13
       unreasonable searches and seizures, shall not be violated.” U.S. CONST.

       amend. IV. To preserve that right, a judicial officer may issue a warrant only

       “upon probable cause, supported by Oath or affirmation, and particularly

       describing the place to be searched, and the persons or things to be seized.” Id.

       “Article 1, Section 11 of the Indiana Constitution contains language nearly

       identical to its federal counterpart.” McGrath, 95 N.E.3d at 527. “And our

       statutory law codifies these constitutional principles, setting forth the requisite

       information for an affidavit to establish probable cause.” Id. (citing Ind. Code §

       35-33-5-2 (2008)).


[13]   The existence of probable cause is evaluated pursuant to the “totality-of-the-

       circumstances” test. Eaton v. State, 889 N.E.2d 297, 299 (Ind. 2008) (quoting

       Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)), reh’g denied,

       cert. denied, 556 U.S. 1185, 129 S. Ct. 1986 (2009). Probable cause exists “when

       ‘there is a fair probability that contraband or evidence of a crime will be found

       in a particular place.’” Id. (quoting U.S. v. Grubbs, 547 U.S. 90, 95, 126 S. Ct.

       1494, 1499 (2006) (quoting Gates, 462 U.S. at 238, 103 S. Ct. 2317)).

       Significantly, “probable cause requires only a probability or substantial chance

       of criminal activity, not an actual showing of such activity.” Id. (quoting Gates,

       462 U.S. at 245 n. 13, 103 S. Ct. 2317). The trial court’s task is to determine

       whether there is a fair probability that contraband or evidence of a crime will be

       found in a particular place, while a reviewing court must ensure that the

       magistrate had a substantial basis for concluding that probable cause existed.

       Id. (quotations and citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 9 of 13
[14]   Cooper argues that the search warrant affidavit lacked sufficient probable cause.

       He cites Hensley v. State, 778 N.E.2d 484 (Ind. Ct. App. 2002), and argues that

       “[l]ike Hensley, the alleged criminal conduct, possession of contraband by two

       passengers in Cooper’s vehicle, creates little, to no, link to Cooper’s home.”

       Appellant’s Brief at 7. He also argues that the good faith exception does not

       apply because no objective person could see the link between two passengers in

       a vehicle possessing drugs and the search of the driver’s home. The State

       argues that it presented sufficient facts, together with reasonable inferences, that

       created a nexus between criminal drug activity and Cooper’s home and that

       Hensley is distinguishable.


[15]   To the extent the affidavit asserted several anonymous complaints, we note that

       “[a]n anonymous tip cannot, standing alone, support a finding of probable

       cause.” McGrath, 95 N.E.3d at 528. “Instead, the reliability of hearsay from a

       source of unknown credibility depends on other factors, including (1) the basis

       of the informant’s knowledge or (2) corroboration through independent police

       investigation.” Id. “Other elements may come into play depending on the facts

       of the case.” Id. These factors may include the informant’s accurate prediction

       of otherwise unforeseeable criminal activity. Id. at 528 n.4.


[16]   In Hensley, we held a probable cause affidavit was insufficient to support a

       search warrant because the affidavit failed to link the house to the drug sale.

       We explained that the affidavit “merely contain[ed] a description of a home

       and an allegation that [the defendant] had purchased methamphetamine the

       previous day.” Hensley, 778 N.E.2d at 488. Accordingly, we held that “the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 10 of 13
       affidavit is completely devoid of any information describing why [the officer]

       had good cause to believe that the drugs would be found in the described

       premises.” Id.


[17]   Unlike in Hensley, the affidavit described a connection between the described

       premises and drug activity. Specifically, Officer Gibson’s affidavit asserted that:

       he was conducting surveillance on a specific residence due to several

       anonymous drug complaints about Cooper who lived at the residence; he

       observed the Dodge Nitro in front of the residence which belonged to Cooper;

       Cooper drove away from the residence with Bradley and Jones; upon stopping

       the vehicle for a traffic infraction, he observed Bradley in possession of a clear

       plastic bag that field tested positive for marijuana; he located $1,460 on

       Bradley’s person; a police canine gave a positive alert on Cooper’s vehicle;

       Cooper’s other passenger, Jones, possessed spice in her purse; that Cooper

       stated “maybe a female but that should be it” when asked if there was anyone

       back at his residence; and that, when Trooper Miller went to the residence, a

       male “took off towards a bedroom,” grabbed something from underneath a

       mattress, and fled the residence. Defendant’s Exhibit A. We also observe that

       Officer Gibson testified that he observed Cooper, Jones, and Bradley leave

       Cooper’s residence and never lost sight of them when he made the traffic stop.

       In light of the record, we conclude that a substantial basis existed to support the

       court’s decision to issue the search warrant and that the trial court did not abuse

       its discretion by admitting the evidence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 11 of 13
[18]   Even assuming that a lack of probable cause existed, we cannot say that

       reversal is warranted. “The lack of probable cause does not automatically

       require the suppression of evidence obtained during a search conducted

       pursuant to a warrant.” Jackson v. State, 908 N.E.2d 1140, 1143 (Ind. 2009). In

       United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), the United States

       Supreme Court determined that the exclusionary rule does not require the

       suppression of evidence obtained in reliance on a defective search warrant if the

       police relied on the warrant in objective good faith. The good faith exception is

       not available in some situations, including where (1) the magistrate is “misled

       by information in an affidavit that the affiant knew was false or would have

       known was false except for his reckless disregard of the truth,” or (2) the

       warrant was based on an affidavit “so lacking in indicia of probable cause as to

       render official belief in its existence entirely unreasonable.” Jackson, 908

       N.E.2d at 1143 (quoting Leon, 468 U.S. at 923, 104 S. Ct. 3405). The good

       faith exception to the warrant requirement has been codified by Ind. Code § 35-

       37-4-5.


[19]   Cooper does not argue that that the judge was misled by information in the

       affidavit Officer Gibson knew was false or would have known was false except

       for his reckless disregard for the truth. Rather, Cooper argues that “as in

       Hensley, no objective person could see the link between two passengers in a

       vehicle possession [sic] drugs, and the search of the driver’s home.” Appellant’s

       Brief at 8. As explained above, the record includes additional support for the

       search besides the mere possession of drugs by passengers. We conclude that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 12 of 13
       the search warrant was not based upon an affidavit so lacking in indicia of

       probable cause as to render official belief in its existence entirely unreasonable

       and that the good faith exception to the exclusionary rule is applicable. The

       trial court did not abuse its discretion in admitting the evidence discovered at

       the residence.


[20]   For the foregoing reasons, we affirm Cooper’s convictions.


[21]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1820 | March 19, 2019   Page 13 of 13
