MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Sep 30 2016, 9:02 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark J. Dove                                             Gregory F. Zoeller
Dove & Dillon, P.C.                                      Attorney General of Indiana
North Vernon, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William C. McCollum,                                     September 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A01-1604-CR-718
        v.                                               Interlocutory Appeal from the
                                                         Jennings Superior Court
State of Indiana,                                        The Honorable Gary L. Smith,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         40D01-1512-CM-555



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 1 of 19
                                             Case Summary
[1]   An Indiana Department of Natural Resources (“DNR”) law enforcement

      officer submitted an affidavit for a warrant to search William C. McCollum’s

      residence and vehicles for evidence related to the illegal harvesting of ginseng.

      The judge who reviewed the affidavit found probable cause to issue a search

      warrant. The DNR officer and four other officers executed the warrant and

      found incriminating evidence in McCollum’s home, and McCollum made

      incriminating statements at the scene. The State charged McCollum with

      several ginseng- and marijuana-related misdemeanors.


[2]   McCollum filed two motions to suppress the evidence obtained during the

      search. The trial court denied both motions. In this interlocutory appeal,

      McCollum claims that the trial court erred, asserting that the search warrant

      was invalid because the affidavit lacked sufficient indicia of probable cause, that

      the good-faith exception to the exclusionary rule is inapplicable, and that his

      statements must be suppressed under the fruit of the poisonous tree doctrine.

      We agree and therefore reverse and remand for further proceedings consistent

      with our decision.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 2 of 19
                                    Facts and Procedural History 1
[3]   In September 2015, DNR Officer Matthew Hicks submitted an affidavit for a

      warrant to search McCollum’s North Vernon residence and vehicles for

      evidence related to the illegal harvesting of ginseng. The judge who reviewed

      the affidavit found probable cause to issue a search warrant, which Officer

      Hicks and four other officers executed later that day. McCollum arrived at his

      home with Thomas Hartwell and Robert Boyd shortly after the officers did.

      Officer Hicks read the search warrant to McCollum and questioned him.

      McCollum stated that he had driven Hartwell and Boyd to harvest ginseng and

      had purchased ginseng from them that he planned to sell in Bloomington. The

      officers found ginseng, marijuana, and paraphernalia in McCollum’s residence,

      and McCollum showed them ginseng that he had stored in his neighbor’s shed.

      Officer Hicks then read McCollum his Miranda rights while other officers

      handcuffed him. The record does not indicate whether the officers searched

      McCollum’s vehicles.


[4]   In December 2015, the State charged McCollum with class B misdemeanor

      purchasing ginseng without a license, class B misdemeanor aiding, inducing, or




      1
        We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise
      narrative of the facts stated in accordance with the standard of review appropriate to the judgment and
      should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind.
      Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that
      the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility
      of the confidential informant” mentioned in the affidavit and has “either played word games with this court
      or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs
      have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct.
      App. 1999), trans. denied (2000).

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016             Page 3 of 19
      causing harvesting of ginseng out of season,2 class B misdemeanor possession of

      marijuana, and class C misdemeanor possession of paraphernalia. McCollum

      filed two motions to suppress the evidence obtained during the search,

      including the contraband and his statements. After a hearing, the trial court

      denied both motions. This interlocutory appeal ensued. Additional facts will

      be provided as necessary.


                                     Discussion and Decision

          Section 1 – The search warrant affidavit lacked sufficient
          indicia of probable cause, and therefore the warrant was
                   invalid under the Fourth Amendment.
[5]   McCollum claims that the trial court erred in denying his motions to suppress.

              We review the denial of a motion to suppress in a manner similar
              to other sufficiency matters. We do not reweigh the evidence,
              and we consider conflicting evidence most favorable to the trial
              court's ruling. However, unlike the typical sufficiency of the
              evidence case where only the evidence favorable to the judgment
              is considered, we must also consider the uncontested evidence
              favorable to the defendant.


      Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000) (citations omitted),

      trans. denied.




      2
       Wild ginseng may be harvested only from September 1 through December 31. Ind. Code § 14-31-3-10; 312
      Ind. Admin. Code 19-1-1(9).

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 4 of 19
[6]   McCollum first contends that the evidence seized during the search of his

      residence should be suppressed because the search warrant was invalid under

      the Fourth Amendment to the U.S. Constitution. 3 To generally deter law

      enforcement officers from violating people’s Fourth Amendment rights, the

      U.S. Supreme Court has created the exclusionary rule, which prohibits the

      admission of evidence seized in violation of the Fourth Amendment. Reinhart

      v. State, 930 N.E.2d 42, 48 (Ind. Ct. App. 2010). The Fourth Amendment

      states,

                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.


      The warrant requirement is a principal protection against unnecessary

      intrusions into private dwellings. Chiszar v. State, 936 N.E.2d 816, 825 (Ind. Ct.

      App. 2010), trans. denied (2011). “A defendant bears the burden of

      demonstrating the invalidity of a warrant.” Fry v. State, 25 N.E.3d 237, 245

      (Ind. Ct. App. 2015), trans. denied.


[7]   More specifically, McCollum argues that the search warrant was invalid

      because Officer Hicks’s affidavit lacked sufficient indicia of probable cause.




      3
       McCollum does not mention or make any argument under Article 1, Section 11 of the Indiana
      Constitution.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016     Page 5 of 19
      “Probable cause has long been described as a fluid concept incapable of precise

      definition. It is to be decided based on the facts of each case.” Figert v. State,

      686 N.E.2d 827, 830 (Ind. 1997). “The level of proof necessary to establish

      probable cause is less than that necessary to establish guilt beyond a reasonable

      doubt.” Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). “Probable

      cause means a probability of criminal activity, not a prima facie showing.” Fry,

      25 N.E.3d at 244.


[8]   The Indiana Supreme Court has stated,

              In deciding whether to issue a search warrant, “[t]he task of the
              issuing magistrate is simply to make a practical, commonsense
              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.”


      Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462

      U.S. 213, 238 (1983)). “The duty of the reviewing court is to determine

      whether the magistrate had a ‘substantial basis’ for concluding that probable

      cause existed.” Id. (citing Gates, 462 U.S. at 238-39). “‘[S]ubstantial 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. at

      181-82 (quoting Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)). “‘Reviewing

      court’ for these purposes includes both the trial court ruling on a motion to

      suppress and an appellate court reviewing that decision.” Id. at 182. We

      review the trial court’s substantial basis determination de novo. State v. Spillers,
      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 6 of 19
      847 N.E.2d 949, 953 (Ind. 2006). We consider only the evidence presented to

      the issuing magistrate – in this case, Officer Hicks’s affidavit – and not post hoc

      justifications for the search. Jaggers, 687 N.E.2d at 182; see also Flaherty v. State,

      443 N.E.2d 340, 343 (Ind. Ct. App. 1982) (“The issue … is whether the

      affidavit itself, without additional information or testimony presented after the

      search warrant is executed, alleges sufficient facts upon which the issuing

      authority could have made an independent determination of probable cause.”).


[9]   “[P]robable cause may be established by evidence that would not be admissible

      at trial.” Jellison, 656 N.E.2d at 534. Such evidence may include hearsay,

      which is an out-of-court statement offered to prove the truth of the matter

      asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless the

      Evidence Rules or other law provides otherwise. Ind. Evidence Rule 802.

      Indiana Code Section 35-33-5-2(a) provides that a search warrant affidavit must

      particularly describe “the house or place to be searched and the things to be

      searched for,” allege “substantially the offense in relation thereto and that the

      affiant believes and has good cause to believe that … the things sought are

      concealed there[,]” and set “forth the facts known to the affiant through

      personal knowledge or based on hearsay, constituting the probable cause.” The

      statute further provides,

              When based on hearsay, the affidavit must either:

              (1) contain reliable information establishing the credibility of the
              source and of each of the declarants of the hearsay and
              establishing that there is a factual basis for the information
              furnished; or
      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 7 of 19
                  (2) contain information that establishes that the totality of the
                  circumstances corroborates the hearsay.


       Ind. Code § 35-33-5-2(b). In Gates, the U.S. Supreme Court


                  indicated that the trustworthiness of hearsay for purposes 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 shown; or (4) the informant predicts conduct or
                  activities by the suspect that are not ordinarily easily predicted.
                  Depending on the facts, other considerations may come into play
                  in establishing the reliability of the informant or the hearsay.


       Jaggers, 687 N.E.2d at 182.


[10]   Officer Hicks’s affidavit reads in pertinent part:


                  I, Matthew Hicks being an officer with the [DNR] Law
                  Enforcement Division … have probable cause to believe that
                  certain properties constituting fruits, instrumentalities, and
                  evidence of the crime of: Theft under IC 35-43-4-2, Aiding,
                  Inducing or Causing an Offense under IC 35-41-2-4, Hunting
                  Ginseng without the consent of Landowner under IC 14-22-10-
                  1(3) and Harvesting Illegal Ginseng under 14-31-3-13, 312 IAC
                  19-1-8;[ 4] evidence of these crimes can be further substantiated at
                  the properties hereinafter described, is concealed in [McCollum’s
                  residence and vehicles and Boyd’s residence].

                  The property to be seized is described as follows: any and all
                  Ginseng or equipment related to the illegal digging and


       4
           The last two provisions relate to ginseng harvesting restrictions set by the DNR.


       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 8 of 19
           harvesting of wild Ginseng, any storage devices which may
           contain information related to the theft of ginseng or the trespass
           in order to obtain, including: trail cameras, SD cards from trail
           cameras, or cameras and computers that can potential [sic] house
           the described information.

           Your affiant has probable cause to believe that William
           McCollum, Thomas Hartwell and Robert Boyd are collecting
           ginseng, a monetarily valuable resource, without permission of
           the landowner thus exerting unauthorized control over property
           of another person, with intent to deprive the other person of any
           parts of its value or use; committing theft. Your affiant believes,
           with information gathered during this investigation that the
           crime(s) mentioned above have continued and will continue
           through the legal ginseng harvesting season. Information
           obtained from a tracking devise [sic] placed on the vehicle of
           William McCollum has demonstrated McCollum drives Boyd
           and Hartwell to various locations throughout the region to
           illegally dig ginseng, then later picks them up.

           On 09/21/2015 information gathered from the tracking device
           led to an arrest, in Ripley County, of Hartwell and Boyd for
           Hunting Ginseng without Consent of the Landowner and
           Harvesting Illegal Ginseng. During the interview Hartwell stated
           he did not have permission to dig Ginseng on any of the
           properties he had dug on. Hartwell stated that Boyd was digging
           with him but knew nothing about ginseng or the locations they
           had dug. Hartwell stated McCollum was just the driver and
           McCollum stated he was too old to dig.[ 5] Hartwell, when asked
           if he was the leader of the group, stated yes. He organized and
           decided where to dig. Based on information obtained from
           charges which led to Hartwell currently being on probation,




5
    The record indicates that McCollum was born in 1945. Appellant’s App. at 3.


Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 9 of 19
        Hartwell has been digging ginseng for forty years.[ 6]

        Thomas Hartwell, in his plea agreement, is prohibited from
        harvesting or possessing ginseng. Hartwell is in violation of the
        following statutes/codes; Theft under IC 35-43-4-2, Hunting
        Ginseng without the consent of Landowner under IC 14-22-10-1
        (3) and Harvesting Illegal Ginseng under 14-31-3-13, 312 IAC 19-
        1-8 Hartwell has also violated several of the terms of his
        probation.

        Robert Boyd, who Hartwell stated knows nothing about ginseng,
        has turned in over twenty pounds of wet ginseng since
        09/03/2015. Jean Klene, the owner of K & K roots [sic], stated
        that when she saw the large amounts of ginseng Boyd was
        selling, she knew Boyd was selling for Hartwell. Klene asked
        Boyd if he was selling for Hartwell and Boyd smiled really big.
        Boyd is in violation of the following statuettes [sic]/codes; Theft
        under IC 35-43-4-2, Aiding, Inducing or Causing an Offense
        under IC 35-41-2-4, Hunting Ginseng without the consent of
        Landowner under IC 14-22-10-1 (3) and Harvesting Illegal
        Ginseng under 14-31-3-13, 312 IAC 19-1-8.

        William McCollum, the driver, stated he has driven Boyd and
        Harwell [sic] ten times since the ginseng season opened and is in
        violation of Aiding, Inducing or Causing an Offense under Ind.
        Code § 35-41-2-4. McCollum enabled Hartwell and Boyd to
        commit the above offenses and under the above statute is in
        violation of the same crimes committed as Boyd and Hartwell;
        Theft under Ind. Code § 35-43-4-2, Hunting Ginseng without the
        consent of Landowner under IC 14-22-10-1 (3) and Harvesting
        Illegal Ginseng under 14-31-3-13, 312 IAC 19-1-8.




6
 The affidavit does not indicate who arrested Hartwell and Boyd or who interviewed Hartwell, Boyd, and
McCollum on September 21. At the suppression hearing, Officer Hicks testified that he “encountered”
Hartwell, Boyd, and McCollum on that date and that no one was taken into custody. Tr. at 34-35.

Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016    Page 10 of 19
        Any and all ginseng harvested by Harwell [sic] is illegal based on
        the terms of Hartwell’s probation. Boyd and McCollum, in
        having involvement with Hartwell, are Aiding and Causing an
        offense under IC 35-41-2-4.

        Since 09/01/15 Boyd has sold over 20 pounds of ginseng.
        Hartwell is prohibited from harvesting or possessing ginseng,
        therefore, all of the ginseng dug in that timeframe is illegal. At
        the current buying price, 20 pounds of ginseng would bring in
        $2,000.00 wet or $2,660.00 dry. Based on the current buying
        price it averages out to approximately $2,300.00 of illegal ginseng
        that Boyd has sold making it a Level 6 Felony under IC 35-43-4-
        2.

        On 09/25/15 CI [confidential informant] stated Harwell [sic]
        and Boyd have been digging every day since they were arrested
        on 09/21/15 trying to make up for lost money. CI stated
        McCollum has not been driving them but they have been
        washing and drying the ginseng at McCollum’s house. CI stated
        they are getting ready to sell a large amount in Bloomington
        because the ginseng dealers pay more for ginseng there. CI stated
        Boyd and McCollum know Hartwell is on probation and cannot
        dig or possess ginseng. CI stated Hartwell does not keep ginseng
        in his apartment because his girlfriend will not allow it.

        CI has provided a great deal of information related to this case.
        The information provided related to the location of the illegal
        ginseng combined with the facts established, on 09/21/15, are
        the foundation of this request.

        Your affiant is applying for judicial authorization to search the
        residence and vehicles of William McCollum … and the
        residence of Robert Boyd ….

        This affidavit is made for the sole purpose of obtaining a warrant
        for search. Therefore, based on the facts that your affiant has
        learned during this investigation and my training and experience,

Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 11 of 19
               your affiant believes that I have probable cause to believe that
               searching William McCollum’s residence and vehicles and
               Robert Boyd’s residence will lead to the evidence of the violation
               of ginseng laws and rules, and theft laws. Your affiant
               respectfully requests the Court to issue a warrant for search.


       Appellant’s App. at 213-16.


[11]   The first three paragraphs of the affidavit are primarily recitations of the crimes

       that McCollum, Hartwell, and Boyd allegedly committed and the suspected

       whereabouts of evidence related to those crimes. As for Officer Hicks’s

       statement that the tracking device placed on McCollum’s vehicle demonstrated

       that he drove Boyd and Hartwell to illegally harvest ginseng, McCollum asserts

       that such a device “cannot provide any information about who is driving the

       vehicle; who the other occupants of the vehicle are; or what the occupants of

       that vehicle were doing in the various locations to which it was tracked.”

       Appellant’s Br. at 11. He further asserts that if Officer Hicks “had that

       information, it had to be provided by yet another hearsay declarant whose

       credibility has not been established.” Id. The State does not dispute these

       assertions.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 12 of 19
[12]   Regarding Hartwell’s statements, which are hearsay, McCollum contends,

       “Assuming arguendo that driving a person to dig ginseng was a crime,[ 7] there is

       nothing within the hearsay statement of Hartwell that would indicate that the

       fruits of the instrumentalities of the violation of the ginseng laws would be

       found at McCollum’s residence.” Appellant’s Br. at 8-9. We agree. At most,

       Hartwell’s statements (including that McCollum was “just the driver,” which

       McCollum himself admitted) suggest that any incriminating evidence would be

       found in McCollum’s vehicles, which apparently either were not searched or

       contained no contraband. We also agree with McCollum’s contention that

       neither Boyd’s nor Klene’s statements, which are also hearsay, “incriminate

       [him] in any way or provide any basis for a person to believe that evidence

       regarding the alleged violation of the ginseng and theft laws would be found at

       [his] residence.” Id. at 8. If anything, their statements suggest that




       7
         McCollum correctly observes that “[t]he digging of ginseng within season is a completely legal activity” and
       that – except for the CI’s statements, which we consider below – “[n]othing in the affidavit alleges that [he]
       was aware that Hartwell was digging ginseng at locations where he did not have permission” or that
       “Hartwell was prohibited from digging or possessing ginseng by virtue of the terms of a previous probation
       proceeding.” Appellant’s Br. at 8, Reply Br. at 8. Based on McCollum’s multiple contacts with Hartwell, a
       reasonable inference could be drawn that McCollum knew that Hartwell’s activities were illegal. If
       McCollum actually did not have such knowledge, then he could assert a mistake of fact defense. See Ind.
       Code § 35-41-3-7 (“It is a defense that the person who engaged in the prohibited conduct was reasonably
       mistaken about a matter of fact, if the mistake negates the culpability required for commission of the
       offense.”).

       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016        Page 13 of 19
       incriminating evidence would be found on Boyd’s, Hartwell’s, and/or Klene’s

       property. 8


[13]   This leaves us with the hearsay statements of the CI, who purportedly told an

       unidentified law enforcement officer 9 that McCollum “has not been driving

       [Hartwell] and Boyd but they have been washing and drying the ginseng at

       McCollum’s house”; that “they [were] getting ready to sell a large amount in

       Bloomington because the ginseng dealers pay more for ginseng there”; that

       “Boyd and McCollum know that Hartwell is on probation and cannot dig or

       possess ginseng”; and that “Hartwell does not keep ginseng in his apartment

       because his girlfriend will not allow it,” which suggests that McCollum could

       have kept the ginseng in his residence. Appellant’s App. at 215. McCollum

       asserts that “nowhere within the affidavit does [Officer Hicks] make any

       attempt to establish the trustworthiness of the hearsay information provided by

       [the] CI in an effort to provide probable cause.” Appellant’s Br. at 9. Once

       again, we agree. There is no indication that the CI had given correct

       information in the past or that independent police investigation corroborated

       the CI’s statements. Cf. Jaggers, 687 N.E.2d at 182. In fact, McCollum himself



       8
         Because we conclude that Hartwell’s, Boyd’s, and Klene’s statements do not suggest that incriminating
       evidence would be found in McCollum’s residence, we need not address McCollum’s argument that the
       affidavit does not establish their credibility. That said, to the extent the State asserts that Hartwell’s
       statements are credible because they are against his penal interest, the affidavit’s details regarding the DNR’s
       investigation and his arrest are so sparse that it is impossible to determine whether his statements “subject[ed]
       him to any additional criminal liability” and thus demonstrated his credibility. Spillers, 847 N.E.2d at 957.
       9
         The State posits that “Officer Hicks knew the identity of the confidential informant and dealt with the
       confidential informant face-to-face.” Appellee’s Br. at 21. Officer Hicks’s suppression testimony supports
       this hypothesis, but the affidavit is silent on this point.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016           Page 14 of 19
       purportedly told officers on September 21 that he had been driving Hartwell and

       Boyd, which contradicts the CI’s statement. Moreover, there is nothing in the

       affidavit to establish the basis for the CI’s knowledge of McCollum’s activities

       other than the CI’s own statements. See Cartwright v. State, 26 N.E.3d 663, 669

       (Ind. Ct. App. 2015) (finding informant’s hearsay statements insufficient to

       establish probable cause based partly on this ground), trans. denied. And the

       affidavit does not establish the accuracy of the CI’s predictions regarding

       McCollum’s activities. Cf. Gates, 462 U.S. at 225-26 (affidavit established

       accuracy of informant’s predictions regarding defendants’ activities). Viewing

       the affidavit in its totality, we cannot say that the judge who issued the warrant

       had a substantial basis for concluding that probable cause existed to search

       McCollum’s residence for evidence of offenses related to the illegal harvesting

       of ginseng. Therefore, we conclude that the search warrant was invalid under

       the Fourth Amendment.


        Section 2 – The good-faith exception to the exclusionary rule
        is inapplicable, and therefore the evidence seized pursuant to
                   the search warrant must be suppressed.
[14]   This does not end our inquiry, however, because “[e]xclusion of evidence

       recovered pursuant to a search warrant issued by a judge or magistrate is not

       required when the officer obtaining the warrant has acted in objective good

       faith and within the scope of the warrant.” Gerth v. State, 51 N.E.3d 368, 375

       (Ind. Ct. App. 2016) (citing United States v. Leon, 468 U.S. 897, 920 (1984)). The

       Leon court “cautioned that certain police conduct would not qualify for this”


       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 15 of 19
       good-faith exception, including where the warrant was based on an affidavit so

       lacking in indicia of probable cause as to render official belief in the validity of

       the warrant entirely unreasonable. Jaggers, 687 N.E.2d at 184. Law

       enforcement officers are reasonably charged with knowing the basic

       requirements of Indiana Code Section 35-33-5-2. Id. at 186. Thus, Officer

       Hicks should have known that establishing the CI’s credibility or corroborating

       the CI’s hearsay statements was necessary. Brown v. State, 905 N.E.2d 439, 447

       (Ind. Ct. App. 2009). The officer also should have known that the other

       statements in the affidavit did not provide probable cause to search McCollum’s

       residence. Therefore, we conclude that the officer’s reliance on the validity of

       the warrant was not objectively reasonable. Accordingly, the good-faith

       exception is inapplicable, and the evidence seized pursuant to the search

       warrant must be suppressed. 10


            Section 3 – McCollum’s incriminating statements must be
            suppressed under the fruit of the poisonous tree doctrine.
[15]   Finally, McCollum argues that his incriminating statements to Officer Hicks

       must be suppressed under the fruit of the poisonous tree doctrine. 11 Our

       supreme court has stated that “[t]his extension of the exclusionary rule bars




       10
          The State does not make a separate argument regarding the admissibility of the ginseng that McCollum
       retrieved from his neighbor’s shed. Consequently, we do not consider that issue.
       11
          McCollum did not specifically raise this issue in his motions to suppress, but he did raise it in the proposed
       findings that he submitted to the trial court. The trial court made no findings on this issue in its order, and
       the State does not contend that McCollum has waived it.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016           Page 16 of 19
       evidence directly obtained by the illegal search or seizure as well as evidence

       derivatively gained as a result of information learned or leads obtained during

       that same search or seizure.” Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013)

       (citing, inter alia, Wong Sun v. United States, 371 U.S. 471, 485 (1963)). “The

       question is if the derivative evidence ‘has been come at by exploitation of that

       illegality or instead by means sufficiently distinguishable to be purged of the

       primary taint.’” Id. (quoting Wong Sun, 371 U.S. at 488). “In making this

       determination, courts generally consider (1) the time elapsed between the

       illegality and the acquisition of the evidence; (2) the presence of intervening

       circumstances; and (3) the purpose and flagrancy of the official misconduct.”

       Id. (citation and quotation marks omitted). “The defendant must first prove the

       Fourth Amendment violation and that the evidence was a ‘fruit’ of that search;

       the State must then show that the evidence may nevertheless be admitted.” Id.


[16]   McCollum has proved that the search of his residence violated the Fourth

       Amendment because Officer Hicks’s affidavit lacked sufficient indicia of

       probable cause and that the officer’s reliance on the invalid warrant was not

       objectively reasonable. McCollum argues that the warrant “was the only

       reason for the officers to confront him on the day in question” and that Officer

       Hicks’s questioning “would not have occurred absent the warrant.” Appellant’s

       Br. at 13. The State offers no response to this argument. An appellee’s “failure

       to respond to an issue raised in an appellant’s brief is, as to that issue, akin to

       failing to file a brief.” Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002).

       “This failure does not relieve us of our obligation to correctly apply the law to


       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 17 of 19
       the facts in the record in order to determine whether reversal is required.

       However, counsel for appellee remains responsible for controverting arguments

       raised by appellant.” Id. (citation omitted). To prevail on this issue, McCollum

       must establish only prima facie error. Id. “Prima facie means at first sight, on

       first appearance, or on the face of it.” Id.


[17]   The record establishes that Officer Hicks and four other officers arrived at

       McCollum’s home to execute a search warrant based on an affidavit so lacking

       in indicia of probable cause that Officer Hicks should have known that the

       warrant was invalid. McCollum arrived shortly thereafter. According to

       Officer Hicks, he asked McCollum “if he would accompany me up to the top of

       the hill so I could ask him some questions[.]” Tr. at 12. The officer told

       McCollum that he was “there to serve a search warrant on his house” and

       “actually read him the search warrant.” Id. at 13. Office Hicks then questioned

       McCollum about his activities with Hartwell and Boyd and searched the home,

       in which he found ginseng, marijuana, and paraphernalia. Based on the

       foregoing, we conclude that McCollum has made a prima facie showing that

       his statements were obtained by exploitation of the illegal search warrant. Cf.

       Cartwright, 26 N.E.3d at 671 (finding defendant’s post-arrest, post-Miranda

       statements inadmissible as fruits of unconstitutional search based on “a warrant

       issued on essentially uncorroborated hearsay from an anonymous informant”).

       The State has made no contrary argument, and it is not our job to make one on

       its behalf. Consequently, we reverse the denial of McCollum’s motions to

       suppress and remand for further proceedings consistent with our decision.


       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 18 of 19
[18]   Reversed and remanded.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016   Page 19 of 19
