MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Oct 12 2016, 8:58 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                       Patrick J. Smith
Attorney General of Indiana                              Bedford, Indiana

Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        October 12, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         59A05-1601-CR-195
        v.                                               Appeal from the Orange Circuit
                                                         Court
Christopher J. Basinger,                                 The Honorable Larry R. Blanton,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         59C01-1503-F5-236



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 1 of 11
                                             Case Summary
[1]   Pursuant to a warrant, police officers searched Christopher J. Basinger’s home

      and seized several firearms and white powder that field-tested positive for

      methamphetamine. The State charged him with level 5 felony possession of

      methamphetamine. Basinger filed a motion to suppress the evidence seized

      during the search, arguing that the warrant was invalid because the underlying

      affidavit lacked sufficient indicia of probable cause. The trial court granted the

      motion.


[2]   The State dismissed the charge against Basinger and filed this appeal, arguing

      that the affidavit contained sufficient indicia of probable cause or, in the

      alternative, that the good-faith exception to the exclusionary rule applies. We

      disagree on both counts and therefore affirm.


                                 Facts and Procedural History
[3]   On March 25, 2015, Indiana State Police Detective Shane Staggs submitted an

      affidavit for a warrant to search Basinger’s home for evidence of

      methamphetamine possession. The judge who reviewed the affidavit found

      probable cause to issue a search warrant, which Detective Staggs and the local

      sheriff executed within the hour. Basinger was not at home when the officers

      arrived. The officers searched his home and seized several firearms, “used foil

      boats” with “burn residue,” a white powder that field-tested positive for

      methamphetamine, and a digital scale with white residue that field-tested

      positive for methamphetamine, among other things. Appellant’s App. at 66.


      Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 2 of 11
      The State charged Basinger with level 5 felony possession of

      methamphetamine. 1


[4]   Basinger filed a motion to suppress, arguing that the warrant was invalid

      because the affidavit lacked sufficient indicia of probable cause. After a

      hearing, the trial court granted the motion. The State dismissed the charge

      against Basinger and filed this appeal. Additional facts will be provided below.


                                       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]   The State contends that the trial court erred in granting Basinger’s motion to

      suppress. “We review a trial court’s decision to grant a motion to suppress as a

      matter of sufficiency.” State v. McCaa, 963 N.E.2d 24, 29 (Ind. Ct. App. 2012),

      trans. denied. We will neither reweigh evidence nor judge witness credibility.

      Id. The State appeals from a negative judgment and must show that the trial

      court’s ruling was contrary to law. Id. We “will reverse a negative judgment

      only when the evidence is without conflict and all reasonable inferences lead to

      a conclusion opposite that of the trial court.” Id.




      1
        See Ind. Code §§ 35-48-4-6.1(b)(2), 35-48-1-16.5(2) (possession of less than five grams of methamphetamine
      is level 5 felony if person commits offense while in possession of firearm).

      Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016          Page 3 of 11
[6]   To generally deter law enforcement officers from violating citizens’ 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 to the U.S. Constitution. 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. State v. Straub, 749 N.E.2d 593, 597 (Ind. Ct.

      App. 2001).


[7]   The State challenges the trial court’s determination that the search warrant

      affidavit here lacked sufficient indicia of probable cause. “Probable cause is a

      fluid concept incapable of precise definition and must be decided based on the

      facts of each case.” Bradley v. State, 4 N.E.3d 831, 840 (Ind. Ct. App. 2014),

      trans. denied. “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). In fact, probable cause

      requires only a fair probability of criminal activity, not a prima facie showing.

      Id.



      Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 4 of 11
[8]   Our 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,

      847 N.E.2d 949, 953 (Ind. 2006). We consider only the evidence presented to

      the issuing magistrate – here, Detective Staggs’s affidavit – and not additional

      justifications or facts presented after the search. Cartwright v. State, 26 N.E.3d

      663, 668 (Ind. Ct. App. 2015), trans. denied; see also Taylor v. State, 615 N.E.2d

      907, 910 (Ind. Ct. App. 1993) (“[T]here must be sufficient factual information

      on the face of the affidavit from which a neutral and detached magistrate or



      Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 5 of 11
      judge could have reasonably concluded that probable cause existed for the

      issuance of a search warrant.”).


[9]   Probable cause “may be established by evidence that would not be admissible at

      trial.” Lamagna v. State, 776 N.E.2d 955, 958 (Ind. Ct. App. 2002). 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

              (2) contain information that establishes that the totality of the
              circumstances corroborates the hearsay.


      Ind. Code § 35-33-5-2(b).




      Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 6 of 11
[10]   In Spillers, the court explained that


               [t]he trustworthiness of hearsay for the purpose of proving
               probable cause can be established in a number of ways, including
               where: (1) the informant has given correct information in the
               past, (2) independent police investigation corroborates the
               informant’s statements, (3) some basis for the informant’s
               knowledge is demonstrated, or (4) the informant predicts conduct
               or activity by the suspect that is not ordinarily easily predicted.
               These examples however are not exclusive. “Depending on the
               facts, other considerations may come into play in establishing the
               reliability of the informant or the hearsay.”


       847 N.E.2d at 954 (citing and quoting Jaggers, 687 N.E.2d at 182).


[11]   Detective Staggs’s affidavit reads in relevant part as follows:

               Det. Shane Staggs, Indiana State Police, swears/affirms under
               the pains and penalties of perjury that he believes and has
               Probable Cause to believe that certain property and/or evidence
               of a crime hereinafter described is concealed upon the following
               described property, premises, vehicles, outbuilding(s) and
               residence, to-wit:

               The address of the residence is … [in] Paoli, Orange County,
               Indiana. It is the residence of Chris Basinger.

               That the affiant believes that there is Probable Cause to search
               the above described premises, for evidence of the commission of
               the crime of Possession of Methamphetamine, to-wit:
               Methamphetamine, materials and substances used to facilitate
               the use of methamphetamine[.]

               In support of your affiant’s assertion of Probable Cause, the
               following facts are within your affiant’s personal knowledge, to-
               wit:
       Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 7 of 11
        On March 25, 2015, this affiant was contacted by Heather
        Basinger, who is the ex-wife of Chris Basinger. Heather Basinger
        stated that on Monday, March 23, 2015 she had been to the …
        residence of Chris Basinger to pick up personal belongings.
        While Heather Basinger was inside the house she located a long
        piece of burnt aluminum foil. As she was looking for books that
        belong to her she opened up a drawer located in a coffee table in
        the living room area. When Heather opened the drawer she saw
        several pieces of aluminum foil and a clear glass-like substance.

        Heather Basinger stated that while the coffee table drawer was
        open Chris Basinger entered the room and stated "what the f[**]k
        are you doing?" Heather stated she then shut the drawer and
        walked into the bedroom to look for more of her personal items.
        Chris Basinger followed Heather into the bedroom and while
        Heather was looking for items in the closet area, Chris Basinger
        told her to leave the house. Heather stated it was obvious that
        Chris Basinger did not want her looking in his closet.

        While in the bedroom Chris Basinger also stated to Heather that
        what she had just seen in the coffee table drawer could send him
        to prison for thirteen years. Heather then took her children and
        left the residence.

        On March 25, 2015, this affiant interviewed Heather Basinger
        regarding the above information. During that interview Heather
        showed me a text message that was sent from Chris Basinger on
        March 17, 2015 that stated “that’s the Chris and [H]eather I want
        us to be minus the drugs and alcohol.” During the interview this
        affiant informed Heather that her name would be used as a
        witness in the investigation and she stated that was okay, she was
        just concerned about her children. This affiant has also received
        other information from officers reporting that Chris Basinger’s
        name has come up in other investigations concerning
        methamphetamine.

        This affiant has been a police officer for 8 years and has had

Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 8 of 11
               specific training in the detection of methamphetamine. In this
               affiant’s training and experience aluminum foil is consistent with
               the use of methamphetamine.

               Therefore, your affiant respectfully requests the Court to issue a
               SEARCH WARRANT directing the search of the property,
               premises, vehicles, outbuilding(s) and residence and the seizure
               of the above-described items if they are found.

               I hereby swear or affirm under the pains and penalties of perjury
               that the foregoing is true.


       Appellant’s App. at 62-63.


[12]   The primary basis for the affidavit is Heather’s statements, which are hearsay

       (or, as to Basinger’s statements, hearsay within hearsay). The affidavit does not

       contain reliable information that establishes Heather’s credibility, nor does it

       contain information that establishes that the totality of the circumstances

       corroborates the hearsay. The State asserts that Heather’s firsthand account

       “entitles the tip to ‘greater weight than might otherwise be the case.’”

       Appellant’s Br. at 12 (quoting Jaggers, 687 N.E.2d at 183 (quoting Gates, 462

       U.S. at 234)). But Basinger correctly observes that “such alleged first-hand

       statements are ‘easily’ fabricated by informants to bolster their own credibility.”

       Appellee’s Br. at 20 (quoting Newby v. State, 701 N.E.2d 593, 601 (Ind. Ct. App.

       1998) (citing Jaggers, 687 N.E.2d at 184)). The State also asserts that “Heather’s

       account of what she had seen was corroborated by a text message she showed

       to Detective Staggs, which referenced Basinger’s drug use.” Appellant’s Br. at

       12. The message does not specify who used the drugs, let alone where or when


       Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 9 of 11
       they were used. Finally, the State contends that Heather’s statements were

       “corroborated by Staggs’ knowledge that Basinger had been named in other

       methamphetamine investigations.” Id. at 12. Detective Staggs’s secondhand

       information regarding other investigations is itself uncorroborated and

       hopelessly vague. “Uncorroborated hearsay from a source whose credibility is

       itself unknown, standing alone, cannot support a finding of probable cause to

       issue a search warrant.” Buford v. State, 40 N.E.3d 911, 913 (Ind. Ct. App.

       2015). Accordingly, we conclude that the affidavit lacked sufficient indicia of

       probable cause and therefore the warrant was invalid under the Fourth

       Amendment. 2


           Section 2 – The good-faith exception to the exclusionary rule
                                 is inapplicable.
[13]   This determination is not dispositive, however, because exclusion of evidence

       seized pursuant to a search warrant 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)). In Leon, the court “cautioned that




       2
         Given our resolution of this issue, we need not squarely address the fact that, contrary to the affidavit,
       Heather was married to Basinger when she contacted Detective Staggs on March 25. At the suppression
       hearing, Basinger presented evidence that Heather had filed a petition for dissolution on March 11 and
       requested custody of their two minor children. Defendant’s Ex. D (petition). Basinger also presented
       evidence that, contrary to the affidavit, Heather did not see a long piece of burnt aluminum foil in his home.
       Defendant’s Ex. C at 10-11 (deposition). Assuming for argument’s sake that Heather was the bad actor in
       this scenario, her deceptions underscore the necessity of establishing a source’s credibility and corroborating
       hearsay statements in search warrant affidavits.

       Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016            Page 10 of 11
       certain police conduct would not qualify for this” 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. Officers are reasonably charged with

       knowing the basic requirements of Indiana Code Section 35-33-5-2. Id. at 186.

       Thus, Detective Staggs should have known that establishing Heather’s

       credibility or corroborating her hearsay statements was necessary. Brown v.

       State, 905 N.E.2d 439, 447 (Ind. Ct. App. 2009). The detective also should

       have known that the other statements in the affidavit did not provide probable

       cause to search Basinger’s residence. Therefore, we conclude that the

       detective’s reliance on the validity of the warrant was not objectively reasonable

       and thus the good-faith exception is inapplicable. The trial court’s ruling is

       affirmed.


[14]   Affirmed.


       May, J., concurs.

       Kirsch, J., dissents without opinion.




       Court of Appeals of Indiana | Memorandum Decision 59A05-1601-CR-195 | October 12, 2016   Page 11 of 11
