MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 08 2019, 6:04 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      John D. Fierek
Attorney General of Indiana                              Fierek Legal Group
                                                         Brownsburg, Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        August 8, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CR-2325
        v.                                               Appeal from the Marion Superior
                                                         Court
Wesley Ryder,                                            The Honorable Ronnie Huerta,
Appellee-Defendant.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G09-1506-F6-19537



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019                  Page 1 of 17
                                      Statement of the Case
[1]   The State of Indiana appeals the trial court’s grant of Wesley Ryder’s motion to

      suppress. We affirm.


                                                    Issues
[2]   The State raises three issues, which we consolidate and restate as:


              I.       Did the trial court err in determining the search warrant
                       for a blood draw was invalid?


              II.      If the search warrant is invalid, are the results of the blood
                       draw admissible under the good faith exception to the
                       exclusionary rule?


                               Facts and Procedural History
[3]   In the early morning hours of June 4, 2015, Indiana State Trooper Robert Augst

      was dispatched to investigate an auto accident on Interstate 465 in Marion

      County. He encountered several people at the scene, including Ryder. A

      person told Trooper Augst that Ryder had driven the wrong way on the

      highway and crashed into his car. That person also stated Ryder had no

      passengers.


[4]   Trooper Augst noted that Ryder displayed bloodshot eyes and slurred speech.

      He asked Ryder to perform a field sobriety test, which Ryder failed. Next,

      Trooper Augst asked Ryder to take a portable breath test, which Ryder refused.

      The trooper handcuffed Ryder, read him his Miranda warnings, and also read


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 2 of 17
      him an implied consent advisement. Trooper Augst asked Ryder to take a

      certified chemical breath test, and Ryder refused.


[5]   Next, Trooper Augst put Ryder in his car and drove to the Marion County

      Arrestee Processing Center (“APC”) to obtain a search warrant for a blood

      draw. When he arrived, he was told that a judge would not be available until

      after 7:00 a.m. In the meantime, the trooper prepared a probable cause affidavit

      and a proposed search warrant with the assistance of a deputy prosecutor. An

      employee of the Marion County Clerk’s Office (“the Clerk”) created a cause

      number for the search warrant.


[6]   Court staff contacted Judge Barbara Crawford, who agreed to meet Trooper

      Augst at a gas station. He took the probable cause affidavit and search warrant

      with him to the gas station. Judge Crawford met with the trooper and reviewed

      the documents. She signed the search warrant at 7:44 a.m.


[7]   Trooper Augst took Ryder to Eskenazi Hospital, where a blood draw was

      performed at 8:12 a.m. We know the draw occurred at that time because the

      probable cause affidavit included a blank for the time of the draw, and Trooper

      Augst did not fill in the blank until the draw occurred. The hospital kept copies

      of the affidavit and search warrant. The blood sample was subsequently

      submitted for testing, which revealed Ryder had a blood alcohol concentration

      of 0.11%.


[8]   After the blood draw was complete, Trooper Augst returned Ryder to the APC.

      While the trooper was there, he deposited the warrant and probable cause

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 3 of 17
       affidavit in a box for the Clerk. An entry was made on the Clerk’s docket at

       11:17 a.m., indicating the probable cause affidavit and search warrant had been

       filed. The Clerk later lost the probable cause affidavit and search warrant, but

       the State obtained copies of those documents from the hospital. The copies do

       not bear file-marks for June 4, 2015.


[9]    On June 5, 2015, the State charged Ryder with criminal recklessness, a Level 6
                  1
       felony; operating a vehicle while intoxicated in a manner endangering a
                                                 2
       person, a Class A misdemeanor; and operating a vehicle with an alcohol
                                                                                        3
       concentration equivalent of .08 or more, a Class C misdemeanor. On

       September 3, 2015, the State moved to amend the charging information to add

       two new counts: causing serious bodily injury while operating a vehicle while
                                            4
       intoxicated, a Level 6 felony; and causing serious bodily injury while operating

       a vehicle with an alcohol concentration equivalent of .08 or more, a Level 6
                  5
       felony. The trial court granted the State’s motion.


[10]   On June 6, 2018, Ryder filed a motion to suppress. He alleged that collecting

       the blood sample had violated his federal and state constitutional protections

       against unreasonable search and seizure. The court held a two-day hearing,



       1
           Ind. Code § 35-42-2-2 (2014).
       2
           Ind. Code § 9-30-5-2 (2001).
       3
           Ind. Code § 9-30-5-1 (2001).
       4
           Ind. Code § 9-30-5-4 (2013).
       5
           Ind. Code § 9-30-5-4.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019       Page 4 of 17
       and both sides filed memoranda of law. On August 29, 2018, the court granted

       the motion to suppress as to evidence obtained from the blood draw,

       concluding the trooper had failed to file the probable cause affidavit before

       presenting it to the judge. The court further determined the blood draw test

       results were not admissible under the good faith exception to the exclusionary

       rule. This appeal followed.


                                    Discussion and Decision
                                        I. Standard of Review
[11]   The State argues the trial court erred in granting Ryder’s motion to suppress.

       We have previously stated:


               Generally we review a trial court’s decision to grant a motion to
               suppress as a matter of sufficiency. On appeal, we will neither
               reweigh evidence nor judge witness credibility. Our role is to
               determine whether the record discloses substantial evidence of
               probative value that supports the trial court’s decision. The State
               appeals from a negative judgment and must show that the trial
               court’s ruling on the suppression motion was contrary to law.


       State v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013) (citations

       omitted). We review questions of law de novo. State v. Campbell, 905 N.E.2d

       51, 54 (Ind. Ct. App. 2009), trans. denied.


                         II. Search Warrant Filing Requirements
[12]   The State first claims Trooper Augst timely filed the probable cause affidavit,

       and the search warrant was valid. To be valid, a warrant and its underlying

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 5 of 17
       affidavit must comply with the Fourth Amendment prohibition on

       unreasonable searches and seizures, as well as Indiana constitutional and

       statutory law. Gray v. State, 758 N.E.2d 519, 521 (Ind. 2001). The Fourth

       Amendment to the United States Constitution provides:


               The 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.


[13]   Similarly, Article 1, section 11 of the Indiana Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.


[14]   The Indiana General Assembly has codified these federal and state

       constitutional requirements, stating “[a] court may issue warrants only upon

       probable cause, supported by oath or affirmation, . . . .” Ind. Code § 35-33-5-

       1(a) (2006). In addition:


               Except as provided in section 8 of this chapter, and subject to the
               requirements of section 11 of this chapter, if applicable, no
               warrant for search or arrest shall be issued until there is filed with
               the judge an affidavit:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 6 of 17
               (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;


               (2) alleging substantially the offense in relation thereto and that
               the affiant believes and has good cause to believe that:


               (A) the things sought are concealed there; or


               (B) the person to be arrested committed the offense; and


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


       Ind. Code § 35-33-5-2 (2014) (emphasis added).


[15]   The General Assembly has provided one exception to Indiana Code section 35-

       33-5-2’s requirement that the State must file a probable cause affidavit before

       the trial court may issue a search or arrest warrant:


               A judge may issue a search or arrest warrant without the affidavit
               required under section 2 of this chapter, if the judge receives
               testimony subject to the penalties for perjury of the same facts
               required for an affidavit:


               (1) in a nonadversarial, recorded hearing before the judge;


               (2) orally by telephone or radio;


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 7 of 17
               (3) in writing by facsimile transmission (FAX); or


               (4) in writing by electronic mail or other electronic transmission.


       Ind. Code § 35-33-5-8 (2014).


[16]   The State claims there is no evidence to support the trial court’s factual

       determination that Trooper Augst failed to file the probable cause affidavit

       before taking it to Judge Crawford. We disagree. The most crucial evidence is

       the probable cause affidavit itself. The Clerk lost its copy of the affidavit, but

       the hospital had kept a copy. On June 4, 2015, the Marion County Clerk’s

       Office had not yet implemented e-filing, so documents were still physically file-

       stamped as of that date. The hospital’s copy of the probable cause affidavit

       does not have a file stamp, which indicates it had not been filed before Trooper

       Augst arrived at the hospital. In addition, a docket entry indicating the affidavit

       had been filed did not appear on the Clerk’s docket until 11:17 a.m., which was

       after the trooper had returned the warrant to the Clerk’s staff at the APC. This

       evidence supports the trial court’s determination that Trooper Augst did not file

       the probable cause affidavit before presenting it to Judge Crawford.


[17]   The State notes that a case number was assigned to this matter before Trooper

       Augst met with Judge Crawford, which the State claims is proof that the Clerk

       received the affidavit before Judge Crawford reviewed it. The State also cites to

       an unsworn email from a Clerk’s employee stating: (1) the Clerk would not

       have assigned a case number without first being given the probable cause

       affidavit for filing; and (2) the Clerk’s employees may have been busy when

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 8 of 17
       Trooper Augst first arrived at the APC and could have delayed file-stamping

       the affidavit until much later in the morning. The trial court discounted the

       information in the employee’s email because the employee conceded he had no

       personal knowledge about this case, and the court did not believe the

       employee’s explanation about how and when the affidavit could have been

       filed. We will not reweigh credibility determinations.


[18]   In the alternative, the State claims Trooper Augst timely filed the probable

       cause affidavit by giving it to Judge Crawford. In Moseby v. State, 872 N.E.2d

       189, 192 (Ind. Ct. App. 2007), trans. denied, a panel of this Court determined

       that Indiana Code section 35-33-5-2’s filing requirement is satisfied if a police

       officer leaves a copy of the probable cause affidavit with the judge. See also

       Wilson v. State, 263 Ind. 469, 333 N.E.2d 755, 761 (1975) (same).


[19]   In Ryder’s case, the probable cause affidavit included boilerplate language

       stating a copy of the affidavit and warrant had been “filed with the signing

       judge.” Tr. Ex. Vol., State’s Ex. 1. But Trooper Augst testified he could not

       remember whether he left copies of the documents with Judge Crawford, and

       there is no evidence that copies were later found in the judge’s files or that she

       gave the copies to the Clerk. For these reasons, the holding set forth in Moseby

       and similar cases does not apply here. See Johnson v. State, 952 N.E.2d 305, 309-

       10 (Ind. Ct. App. 2011), trans. denied (search warrant invalid because probable

       cause affidavit was not properly filed with trial court; affidavit was not file-

       marked, and court staff did not retain a copy for their records).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 9 of 17
[20]   Finally, the State argues that even if the trooper did not file the probable cause

       affidavit until after Judge Crawford had signed the warrant, the delay is

       permissible because the trooper substantially complied with filing requirements.

       In Bowles v. State, 820 N.E.2d 739, 746 (Ind. Ct. App. 2005), trans. denied, an

       officer failed to file the probable cause affidavit before the magistrate issued the

       search warrant. The officer instead filed the documents the next day, after

       executing the warrant. A panel of this Court did not condone the officer’s

       failure to comply with statutory requirements but concluded he had

       substantially complied, and suppression of the evidence under those

       circumstances would have been inappropriate. The Court noted its decision

       was based on the particular facts of the case, stating “we can envision other

       circumstances that could arise which would lead to the opposite result.” Id. at
                  6
       746 n.5.


[21]   Bowles is distinguishable from the present case. In Bowles, the Court did not

       discuss any of the circumstances under which the officer failed to file the

       probable cause affidavit before meeting with the magistrate. By contrast, in

       Ryder’s case the record demonstrates that Trooper Augst prepared the probable

       cause affidavit and the search warrant at the APC, where one or more Clerk’s

       employees are stationed to receive and file documents. Further, it appears there



       6
         The parties also discuss State v. Mason, 829 N.E.2d 1010, 1020 (Ind. Ct. App. 2005), in which the Court
       noted a police officer did not file the probable cause affidavit until twenty-eight days after the trial court
       issued the search warrant. The Court deemed the delay “inexcusable” and “unnecessary,” id. at 1021, but
       ultimately decided the case on different grounds: whether there was insufficient probable cause to support
       the search warrant.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019                     Page 10 of 17
       is also a box at the APC in which officers may deposit documents for filing if a

       Clerk’s employee is absent. Finally, Trooper Augst could have left copies of the

       documents with Judge Crawford but did not.


[22]   We do not know why the trooper failed to accomplish the straightforward task

       of filing the affidavit before leaving the APC to meet with Judge Crawford.

       Under the facts of this case, we cannot conclude the trooper substantially

       complied with the statute by waiting three hours after the warrant had been

       signed and executed to file the probable cause affidavit.


                                     III. Good Faith Exception
[23]   The State claims that even if the warrant was untimely filed, the statutory

       violation should be excused under the good faith exception to the exclusionary

       rule. In general, the exclusionary rule provides that evidence seized during a

       search conducted pursuant to an invalid search warrant may not be admitted at

       trial. Smith v. State, 982 N.E.2d 393, 406 (Ind. Ct. App. 2013), trans. denied.

       The General Assembly has codified an exception to the exclusionary rule, as

       follows:


               (a) In a prosecution for a crime or a proceeding to enforce an
               ordinance or a statute defining an infraction, the 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.


               (b) For purposes of this section, evidence is obtained by a law
               enforcement officer in good faith if:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 11 of 17
               (1) it is obtained pursuant to:


               (A) 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; or


               (B) a state statute, judicial precedent, or court rule that is later
               declared unconstitutional or otherwise invalidated; and


               (2) the law enforcement officer, at the time he obtains the
               evidence, has satisfied applicable minimum basic training
               requirements established by rules adopted by the law
               enforcement training board under IC 5-2-1-9.


       Ind. Code § 35-37-4-5 (1983).


[24]   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) (quotation omitted). Instead, suppression is appropriate

       where, upon facts known to the issuing magistrate or judge, a well-trained

       officer would have known that the search was illegal despite the magistrate’s

       authorization. Rice v. State, 916 N.E.2d 296, 304 (Ind. Ct. App. 2009)

       (quotation omitted), trans. denied.


[25]   In State v. Brown, 840 N.E.2d 411 (Ind. Ct. App. 2006), an officer requested a

       search warrant and presented evidence to the magistrate through oral testimony
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 12 of 17
       rather than a written probable cause affidavit. The magistrate issued a search

       warrant, and incriminating evidence was discovered. The officer was not under

       oath when she testified, and as a result the warrant failed to comply with the

       requirements of Indiana Code section 35-33-5-8.


[26]   On appeal, the State contended that the evidence in question was admissible

       under the statutory good faith exception because the officer reasonably believed

       the warrant was validly issued. A panel of this Court disagreed, concluding the

       warrant did not meet the statutory requirement of being “properly issued”

       because it was not supported by evidence presented under oath or affirmation.

       Id. at 416. The Court further stated that, given the unambiguous statutory

       requirement that testimony be submitted under oath, “no Indiana judge,

       attorney, or law enforcement officer . . . could have a reasonable belief that a

       warrant issued without sworn testimony was valid.” Id. at 417.


[27]   In Ryder’s case, Indiana Code section 35-33-5-2 unambiguously requires the

       probable cause affidavit to be filed before a magistrate may issue a search

       warrant. The trooper’s failure to file the affidavit before meeting with Judge

       Crawford was not a mere error but a fatal defect in the issuance of the warrant.

       We conclude, as the Court did in Brown with respect to the failure to provide

       testimony under oath, that the failure to timely file the probable cause affidavit

       may not have been deliberate, but “it was substantial.” Id. at 416.


[28]   We do not hold that the good faith exception is inapplicable every time an

       officer fails to timely file the probable cause affidavit. There will be


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 13 of 17
       circumstances under which an officer may fail to timely file the affidavit yet still

       have complied with the requirements of the good faith statute. For example, in

       Johnson, 952 N.E.2d at 312, an officer submitted a probable cause affidavit and

       search warrant to court staff and then received them back from the magistrate.

       The documents were signed by the magistrate but had not been filed. A panel

       of this Court concluded: (1) the warrant was invalid because the probable cause

       affidavit had not been timely filed; but (2) the good faith exception applied

       because, among other reasons, the officer had delivered the documents to court

       employees and reasonably believed those employees would take the necessary

       steps to file the documents.


[29]   By contrast, viewing the facts in Ryder’s case in the light most favorable to the

       judgment, the trooper had no reason to rely on anyone else to complete the

       filing process, and there was no reason why he could not have filed the

       documents while he was at the APC. No well-trained officer could have

       concluded that the unfiled affidavit complied with statutory requirements. As a

       result, the trial court did not err in determining the good faith exception to the

       exclusionary rule was inapplicable.


                                                Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


       Pyle, J., concurs
       Brown, J., dissents with opinion.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 14 of 17
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                        [Add Hand-down date]
       Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                                18A-CR-2325
               v.                                               Appeal from the Marion Superior
                                                                Court
       Wesley Ryder,                                            The Honorable Ronnie Huerta,
       Appellee-Defendant.                                      Magistrate
                                                                Trial Court Cause No.
                                                                49G09-1506-F6-19537



       Brown, Judge, dissenting.


[32]   I respectfully dissent from the majority’s conclusions that any failure by

       Trooper Augst to comply with the statute was substantial and that the good

       faith exception does not apply. The majority cites Johnson v. State, 952 N.E.2d

       305 (Ind. Ct. App. 2011), trans. denied. In that case, we held:


               [T]he warrant itself states that ‘[t]he [c]ourt, upon examination of
               the [affidavit], finds that there is a [p]robable [c]ause . . . .’
               (Defendant’s Exh. A) (emphasis added). In comparison to the
               language of the warrants in Wilson [v. State, 263 Ind. 469, 333
               N.E.2d 755 (1975)] and Jefferson [v. State, 891 N.E.2d 77 (Ind. Ct.
               App. 2008), trans. denied], this language does not indicate that
               Detective Rosado filed the affidavit. Instead, the word

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019       Page 15 of 17
               “examination” implies that he exhibited the affidavit. Finally,
               Detective Rosado did not attempt to belatedly file the affidavit;
               he did not file it at all. Based on these facts, we cannot find any
               evidence that Detective Rosado filed the affidavit, so we
               conclude that it was not properly filed.


       952 N.E.2d at 310. The Johnson court ultimately concluded that the trial court

       did not abuse its discretion in determining that the evidence on Johnson’s

       computer was admissible under the good faith exception to the exclusionary

       rule or in denying Johnson’s motion to suppress. Johnson, 952 N.E.2d at 312.


[33]   The record here reveals that State’s Exhibit 1 includes the search warrant which

       was signed by Judge Crawford and listed a date of June 4, 2015, and a time of

       7:44 a.m. Further, State’s Exhibit 1 also includes a document in which Judge

       Crawford’s signature appears immediately under the following statement: “A

       copy of the Probable Cause Affidavit and Search Warrant has been filed with

       the Signing Judge on this date of June 4th 2015.” State’s Exhibit 1

       (capitalization omitted). Thus, unlike in Johnson, Judge Crawford’s signature

       clearly indicates that the probable cause affidavit and search warrant had been

       filed. While the majority states that Trooper Augst “had no reason to rely on

       anyone else to complete the filing process” and that “[n]o well-trained officer

       could have concluded that the unfiled affidavit complied with statutory

       requirements,” slip op. at 14, I respectfully disagree in light of Judge Crawford’s

       signature immediately under the statement that a copy of the probable cause

       affidavit and search warrant had been “filed” with her. State’s Exhibit 1.

       Moreover, unlike in Johnson where the detective did not attempt to file the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 16 of 17
       affidavit belatedly or at all, in addition to Judge Crawford’s signature, Trooper

       Augst deposited the warrant and probable cause affidavit in a box for the Clerk

       after the blood draw, and an entry made on the Clerk’s docket at 11:17 a.m.

       indicated that the probable cause affidavit and search warrant had been filed.


[34]   Under these circumstances, I would conclude that any failure by Trooper Augst

       to comply with the statute was not substantial and that the good faith exception

       applies. See Bowles v. State, 820 N.E.2d 739, 742, 746 (Ind. Ct. App. 2005)

       (observing that the detective did not leave a copy of the probable cause affidavit

       with the issuing magistrate and did not file it with the county clerk before the

       search warrant was issued, noting that the detective filed the affidavit the next

       day, and holding that, “[a]lthough we do not condone [the detective’s] failure to

       file the affidavit as required by section 35-33-5-2(a), under the circumstances of

       this case, we conclude that [the detective] substantially complied with the

       statute when he filed the affidavit the next day”), trans. denied.


[35]   For the foregoing reasons, I respectfully dissent and would reverse the trial

       court.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2325 | August 8, 2019   Page 17 of 17
