                                                                              Feb 18 2016, 9:58 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jillian C. Keating                                         Gregory F. Zoeller
      Cathy M. Brownson                                          Attorney General
      Coots Henke & Wheeler, P.C.
      Carmel, Indiana                                            Brian Reitz
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David W. Gerth,                                            February 18, 2016
      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 29A02-1506-CR-693
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      State of Indiana,                                          The Honorable Daniel J. Pfleging,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 29D02-1309-FC-8054



      Barnes, Judge.


                                              Case Summary
[1]   David Gerth appeals his convictions for Class C felony dealing in marijuana

      and Class D felony maintaining a common nuisance. We reverse.
      Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016                    Page 1 of 14
                                                       Issue
[2]   The restated issue before us is whether the trial court properly admitted

      evidence recovered from Gerth’s property following the execution of a search

      warrant.


                                                       Facts
[3]   Sometime in August 2013, Detective Sergeant J. Michael Howell of the

      Hamilton County Sheriff’s Department received information from a

      confidential informant (“CI”) asserting that Gerth was selling marijuana from

      his home in Westfield. Shortly after receiving this information, however, the CI

      was “deactivated” because he had not completed all of the obligations required

      of him before his case was adjudicated. Tr. p. 159-60. After the CI was

      deactivated, “the investigation on David Gerth at that point stopped.” Id. at

      143. However, the following month Detective Howell received an email from a

      fellow officer relaying an anonymous tip that Gerth was dealing marijuana.


[4]   On September 19, 2013, Detective Howell applied for and obtained a search

      warrant for a canine drug sniff at Gerth’s residence and around the outbuildings

      on his property. The probable cause affidavit submitted with the warrant

      application stated:


              In August of 2013 this affiant received information from a
              confidential informant (CI) who had provided accurate
              information in the past, that a white male named David Gerth
              was selling marijuana. The CI advised that David Gerth resided
              in Westfield, Hamilton County, Indiana and his residence was
              located on 191st Street. The informant then identified David
      Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 2 of 14
              Gerth off a Hamilton County Jail bookin [sic] photograph.
              David Gerth listed his address as 904 East 191st Street in
              Westfield Indiana.


              On September 18th 2013 I received an anonymous crime tip
              received by Captain Brody Houston of the Westfield Police
              Department from an unknown subject. The crime tip advised
              that a subject by the name of David Gerth and Robert M. Gerth,
              who reside at 811 East 191st Street, Westfield Indiana, were
              growing and selling marijuana from numerous locations on the
              property including the barn and residence.


              On September 18th 2013 I conducted surveillance in the area of
              East 191st Street Westfield, Indiana. I determined that there is
              not a residence located at 811 East 191st Street as stated in the
              anonymous tip. However, I did locate a residence at 904 East
              191st Street, which is the residence that David Gerth had listed
              on his book-in information. I located a vehicle in the driveway
              which gave a return through BMV of belonging to David
              William Gerth of 904 East 191st Street, Westfield, Hamilton
              County, Indiana. This residence contained a barn on the
              property as described in the anonymous tip.


      Motion to Suppress Hrg., Ex. 1.


[5]   Officers brought a dog to Gerth’s property, and it reacted positively to the

      presence of drugs. Based on this information, Detective Howell obtained a

      warrant to search the interior of Gerth’s residence and outbuildings. Inside

      Gerth’s residence, officers found numerous indicia of marijuana dealing,

      including marijuana in baggies and jars, marijuana plants, scales, seeds,

      growing equipment, and a growing room in the basement.



      Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 3 of 14
[6]   The State charged Gerth with Class C felony dealing in marijuana, Class D

      felony possession of marijuana, and Class D felony maintaining a common

      nuisance. Gerth filed a motion to suppress all of the evidence found in his

      residence, asserting that the initial search warrant issued for the canine sniff was

      not supported by probable cause. The trial court denied the motion to suppress,

      and the cause proceeded to bench trial. The trial court found Gerth guilty as

      charged but entered convictions only for Class C felony dealing in marijuana

      and Class D felony maintaining a common nuisance. Gerth now appeals.


                                                    Analysis
[7]   Gerth contends the trial court erroneously admitted evidence discovered during

      the search of his residence. Because Gerth did not seek an interlocutory appeal

      of the denial of his motion to suppress but proceeded to trial, we review his

      claim as one challenging the admission of evidence at trial. See Carpenter v.

      State, 18 N.E.3d 998, 1001 (Ind. 2014). When ruling on the admission of

      evidence at trial following denial of a motion to suppress, a trial court must

      consider the foundational evidence presented at trial. Id. “It also considers the

      evidence from the suppression hearing that is favorable to the defendant only to

      the extent it is uncontradicted at trial.” Id. Trial courts are in the best position

      to weigh the evidence and assess witness credibility, and 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.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.

      2013)). However, the ultimate determination of the constitutionality of a search

      Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 4 of 14
      or seizure is a question of law that we review de novo. Id. In the present case,

      there was no uncontradicted evidence favorable to Gerth presented at the

      suppression hearing—all of the relevant information was presented at the trial

      and in the probable cause affidavit itself.


[8]   Gerth argues that the two hearsay tips in the probable cause affidavit lacked

      sufficient indicia of reliability to support the issuance of a search warrant.

      When deciding whether to issue a search warrant, the issuing magistrate must

      “‘make a practical, common-sense decision whether, given all the

      circumstances set forth in the affidavit . . . there is a fair probability that

      contraband or evidence of a crime will be found in a particular place.’” State v.

      Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S.

      213, 238, 103 S. Ct. 2317, 2332 (1983)). On appeal, we must determine

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

      cause existed. Id. at 953 (quoting Gates, 462 U.S. at 238-39, 103 S. Ct. at 2332).

      A substantial basis requires us to focus on whether reasonable inferences drawn

      from the totality of the evidence support the determination of probable cause,

      while giving significant deference to the magistrate’s determination. Id.


[9]   Provisions governing searches and seizures found in the Fourth Amendment to

      the United States Constitution and Article 1, Section 11 of the Indiana

      Constitution are partially codified in Indiana Code Section 35-33-5-2, which

      governs the information that must be included in an affidavit for a search

      warrant. Id. An affidavit based on hearsay information must either:



      Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 5 of 14
               (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).


               The trustworthiness of hearsay for the purpose of proving
               probable cause can be established in a number of ways, including
               where: (1) the informant has given correct information in the
               past, (2) independent police investigation corroborates the
               informant’s statements, (3) some basis for the informant’s
               knowledge is demonstrated, or (4) the informant predicts conduct
               or activity by the suspect that is not ordinarily easily predicted.


       Spillers, 847 N.E.2d at 954 (citing Jaggers v. State, 687 N.E.2d 180, 182 (Ind.

       1997)). However, these examples are not exclusive and other considerations

       may come into play when establishing the reliability of the hearsay. Id.


[10]   The probable cause affidavit in this case stated that the CI “had provided

       accurate information in the past . . . .” Motion to Suppress Hrg. Ex. 1. It is

       true “that a statement in an affidavit declaring that the informant has previously

       supplied valid information is sufficient to satisfy the statutory requirement of

       facts as to the credibility of the informant.” Powers v. State, 440 N.E.2d 1096,

       1105 (Ind. 1982), cert. denied. However, a conclusory statement such as that an

       informant has “provided accurate information in the past,” without any

       elaboration, is frowned upon. Motion to Suppress Hrg. Ex. 1. In Snover v.

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016    Page 6 of 14
       State, 837 N.E.2d 1042, 1050 (Ind. Ct. App. 2005), we held that a recitation in a

       probable cause affidavit that “the informant is ‘a confidential source who had

       provided information in the past which was determined to be credible and

       reliable’” failed to provide sufficient evidence for the magistrate to gauge the

       informant’s credibility. See also Wood v. State, 592 N.E.2d 740, 744 (Ind. Ct.

       App. 1992) (“The bare conclusory and hearsay statement that affiant was told

       by Officer X that the informant had provided reliable information will not

       suffice for the requirement . . . that the affidavit ‘contain reliable information

       establishing the credibility of the source.’”). By contrast, for example, in the

       Powers case, the probable cause affidavit related the details of eight prior

       occasions on which the informant had provided accurate information related to

       drug trafficking. Powers, 440 N.E.2d at 1100. Here, the bare-bones statement in

       the affidavit that the CI had provided accurate information in the past fails to

       reveal whether such information had led to any arrests, or convictions, or

       whether it was readily-obtainable information that anyone could have provided,

       or how long ago or how many times the CI had provided information. We

       generally have not regarded such generic statements to be sufficient to establish

       an informant’s credibility.


[11]   The issuance of the search warrant was also based on the later, completely

       anonymous tip that Gerth was selling marijuana. There is absolutely no

       indication of this informant’s credibility, even less than for the previously-

       mentioned CI. The State contends nonetheless that the two informants

       reciprocally corroborated each other’s information, thereby lending credibility


       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 7 of 14
to both of them. We disagree. For this proposition the State relies upon a line

of cases from the Eighth Circuit, which generally hold “that information

provided by one informant may be ‘corroborated with specific, consistent

details provided by [a] second informant,’ and that, in fact, the tips of two

informants may be ‘reciprocally corroborative, rendering their information

enough to support a finding of probable cause.’” United States v. Leppert, 408

F.3d 1039, 1041 (8th Cir. 2005) (citing United States v. Fulgham, 143 F.3d 399,

401 (8th Cir. 1998)); see also United States v. Jackson, 67 F.3d 1359, 1365 (8th Cir.

1995), cert. denied. However, all of these cases from the Eighth Circuit were

ones in which one informant with established credibility corroborated

statements provided by a second informant with untested credibility. None of

these cases held that two informants with insufficiently established credibility

could both be found reciprocally credible for giving the same information,

particularly where, as here, the information lacked detail or specifics. See

Leppert, 408 F.3d at 1041 (noting that one of the informants had given “reliable

information in the past that resulted in numerous successful prosecutions”);

Fulgham, 143 F.3d at 401 (noting that one of the informants had given reliable

information in the past “resulting in several arrests and the recovery of stolen

property and illegal substances”); Jackson, 67 F.3d at 1365 (noting that one of

the informants “had proven reliable in the past and . . . was not known ever to

have given false information”).




Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 8 of 14
[12]   Additionally, there was no meaningful corroboration of the tips by police. The

       only corroboration was confirmation of Gerth’s address,1 that his car was in the

       driveway, and that there was a barn on property. It is well-settled that police

       cannot rely upon facts “readily available to the general public” to corroborate

       an informant’s statements. Cartwright v. State, 26 N.E.3d 663, 669 (Ind. Ct.

       App. 2015) (holding confirmation that informant adequately described location

       of defendant’s residence and that there was an RV in the yard was not adequate

       corroboration), trans. denied; Ware v. State, 859 N.E.2d 708, 716 (Ind. Ct. App.

       2007) (“Indiana courts have found that confirming merely that a suspect lives in

       the residence and drives the vehicle identified by the informant is not adequate

       to establish the informant’s credibility and therefore such confirmation does not

       support a finding of probable cause.”), trans. denied. All of the purported

       “corroboration” of the informants’ statements in this case came from

       knowledge any member of the general public could have easily obtained.


[13]   Furthermore, Detective Howell omitted information from the probable cause

       affidavit regarding the CI’s credibility that we deem to be highly material.

       Detective Howell failed to mention in the affidavit that the CI was deactivated

       for failure to complete the requirements of his CI agreement before adjudication

       of his underlying case shortly after providing his tip regarding Gerth.

       Moreover, Detective Howell evidently believed that the CI’s tip was not worth



       1
        In fact, the anonymous tipster had provided incorrect information regarding Gerth’s address, although the
       CI provided the correct address. Thus, confirmation of Gerth’s address did not constitute any corroboration
       of the anonymous tipster’s information.

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016                     Page 9 of 14
       following up on after the CI was deactivated; Detective Howell failed to

       mention in the affidavit that he stopped investigating Gerth after the CI’s

       deactivation. In other words, one could infer that law enforcement itself did

       not consider the CI’s tip to be trustworthy enough to warrant further

       investigation, but that fact was not disclosed to the magistrate.


[14]   A probable cause affidavit must include all “material facts” known to law

       enforcement, which includes facts that “‘cast doubt on the existence of probable

       cause.’” Ware, 859 N.E.2d at 718 (quoting Query v. State, 745 N.E.2d 769, 772

       (Ind. 2001)). Although it may not be practical to include all information related

       to an investigation in a probable cause affidavit, “the best course for police to

       follow is to include any information that could conceivably affect a probable

       cause determination.” Id. at 719-20. As other courts have held, and we agree,

       “police officers seeking a warrant should provide the magistrate or trial judge

       with all information at their disposal concerning a source’s reliability.”

       Galloway v. State, 772 S.E.2d 832, 836 (Ga. Ct. App. 2015). When material

       information is omitted from a probable cause affidavit, such omission will

       invalidate a warrant if (1) the police omitted facts with the intent to make the

       affidavit misleading or with reckless disregard for whether it would be

       misleading, and (2) the affidavit supplemented with the omitted information

       would have been insufficient to support a finding of probable cause. Ware, 859

       N.E.2d at 718. It has been recognized that omissions from a probable cause

       affidavit are made with reckless disregard “if an officer withholds a fact in his

       ken that ‘[a]ny reasonable person would have known that this was the kind of


       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016   Page 10 of 14
       thing the judge would wish to know.’” Wilson v. Russo, 212 F.3d 781, 788 (3rd

       Cir. 2000) (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)).


[15]   Any reasonable person asked to issue a search warrant in this case would have

       wanted to know that the CI was deactivated after giving the tip regarding Gerth

       and that law enforcement stopped investigating Gerth for marijuana dealing

       after that deactivation. Such information directly impacts assessment of the

       CI’s credibility—which already was only supported by a bare-bones recitation

       that he had provided accurate information in the past. Even if that recitation

       had been sufficient, this reckless material omission of fact regarding the CI’s

       credibility leads us to discount that credibility. We conclude that the two

       uncorroborated tips from informants with insufficiently established credibility

       failed to provide sufficient evidence of probable cause for issuance of the

       warrant.


[16]   This brings us to the question of good faith. Exclusion 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. United States v. Leon, 468 U.S. 897, 920, 104 S.

       Ct. 3405, 3419 (1984). The good faith exception to the exclusionary rule has

       been codified in Indiana. The exception applies to evidence obtained by a law

       enforcement officer if:

               (1) it is obtained pursuant to:




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                        (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(b).


[17]   “The good faith exception cannot be so broadly construed as to obliterate the

       exclusionary rule.” Newby v. State, 701 N.E.2d 593, 602 (Ind. Ct. App. 1998).

       “Police officers have a duty and obligation of full and fair disclosure of all

       material facts when applying for a warrant.” Hayworth v. State, 904 N.E.2d 684,

       698 (Ind. Ct. App. 2009). “To trigger the exclusionary rule, police conduct

       must be sufficiently deliberate that exclusion can meaningfully deter it, and

       sufficiently culpable that such deterrence is worth the price paid by the justice

       system.” Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702 (2009).

       “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent

       conduct, or in some circumstances recurring or systemic negligence.” Id.

       Police cannot rely on the good faith exception to the exclusionary rule if they


       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016       Page 12 of 14
       have engaged in deliberate, reckless, or grossly negligent conduct in preparing a

       probable cause affidavit. Hayworth, 904 N.E.2d at 698-99; see also United States

       v. Simmons, 771 F. Supp. 2d 908, 926-27 (N.D. Ill. 2011).


[18]   We have already held that Detective Howell recklessly omitted material facts

       regarding the CI’s credibility from the probable cause affidavit. This is conduct

       that can and should be deterred by the exclusionary rule. See Hayworth, 904

       N.E.2d at 699. Thus, it would be inappropriate in this case to apply the good

       faith exception to the exclusionary rule.2 The evidence recovered from Gerth’s

       residence following issuance of the original search warrant for the canine sniff

       should have been suppressed and not introduced into evidence. The State does

       not and cannot argue that admission of that evidence was harmless error.


                                                    Conclusion
[19]   The probable cause affidavit failed to include sufficient evidence of probable

       cause to support issuance of the search warrant, particularly when the omitted

       material information regarding the CI’s credibility is considered. And in light

       of that recklessly omitted information, we conclude that application of the

       exclusionary rule is warranted and the good faith exception to that rule is not.




       2
         The State suggests that because Detective Howell initially sought a warrant only for a canine sniff of
       Gerth’s residence and not a search of the interior of the residence, it indicates good faith. This would seem to
       imply that there was some lower level of probable cause needed to justify the canine sniff, but that would be
       contrary to the holding of Florida v. Jardines, -- U.S. --, 133 S. Ct. 1409 (2013) (holding that canine sniff to
       investigate a home and its immediate surroundings is a “search” for Fourth Amendment purposes).

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-693 | February 18, 2016                       Page 13 of 14
The trial court erred in introducing the evidence recovered from Gerth’s

residence into evidence. We reverse Gerth’s convictions.


Reversed.


Robb, J., and Altice, J., concur.




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