MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Jun 12 2018, 10:04 am

this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Blair Todd                                               Curtis T. Hill, Jr.
Law Office of Blair Todd                                 Attorney General of Indiana
Winamac, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy Bell,                                               June 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         75A03-1710-CR-2554
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         75C01-1604-F2-4



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018                 Page 1 of 14
                                Case Summary and Issue
[1]   Following a jury trial, Troy Bell was convicted of dealing in methamphetamine,

      a Level 2 felony; maintaining a common nuisance, a Level 6 felony; and

      possession of paraphernalia, a Class C Misdemeanor. Bell also pleaded guilty

      to possession of methamphetamine, a Level 3 felony, and the trial court

      sentenced Bell to an aggregate term of twenty-five years in the Indiana

      Department of Correction. Bell now appeals his convictions, raising only one

      issue for our review which we restate as whether the trial court abused its

      discretion in admitting evidence. Concluding the trial court did not abuse its

      discretion, we affirm.



                            Facts and Procedural History
[2]   At approximately 9:00 a.m. on April 14, 2016, Detective Robert Olejniczak of

      the Starke County Sheriff’s Office, in the company of other officers, executed a

      search warrant on the residence Bell shared with his wife, Natasha. Among

      other evidence, the search warrant produced:


              dime-sized bags with white residue, a gold grinder with a green
              leafy substance in it, glass smoking devices, a television screen
              with live video surveillance of the outside of the residence, a scale
              with white residue on it, an unmarked pill bottle with a green
              leafy substance in it, and two plastic bags containing 223.35
              grams of crystal methamphetamine. The total street value of the
              methamphetamine found in the two bags was approximately
              $23,000 to $24,000.



      Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 2 of 14
      Brief of Appellee at 9-10.


[3]   Thereafter, Bell was charged with dealing in methamphetamine, a Level 2

      felony; possession of methamphetamine, a Level 3 felony; maintaining a

      common nuisance, a Level 6 felony, two counts of possession of a controlled

      substance, both Class A misdemeanors; possession of marijuana, a Class B

      misdemeanor; and possession of paraphernalia, a Class C misdemeanor.


[4]   On September 21, 2016, Bell filed a motion to quash the search warrant and

      suppress evidence, alleging the search warrant lacked probable cause under

      Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment of

      the United States Constitution. The affidavit of probable cause underlying the

      search warrant provided:


              Robert Olejniczak swears and affirms, under the penalties of
              perjury, that he believes and has good cause to believe that the
              following are facts and information relevant to the determination
              of the existence of probable cause for the issuance of a search
              warrant.


                           1. I am the Chief Detective with the Starke County
                              Sheriff’s Office.


                           2. I have received information from two different
                              sources since September 2015 that Troy and
                              Natasha Bell have been selling illegal drugs out of
                              the residence located [in] Starke County, Indiana.


                           3. The information I received states that Troy goes to
                              South Bend to pick up Heroin and also states that at

      Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 3 of 14
                         their residence it smells like they are cooking
                         methamphetamine. It states that there is traffic in
                         and out of the residence once Troy gets back.


                     4. My source stated, on one occasion Troy and
                        Natasha were fighting outside and yelled “I gave
                        you $500 to buy drugs, where are my drugs”.


                     5. It is believed that Troy is involved with the Aryan
                        Brotherhood.


                     6. I have personally seen subjects frequenting the
                        residence but have not been able to stop any
                        vehicles or subjects leaving.


                     7. On February 4, 2016, Starke County Probation drug
                        tested Natasha Long and her results were positive
                        for Methamphetamine.


                     8. On April 4, 2016, I conducted a trash pull from the
                        residence. In the trash was several dime sized plastic
                        bag [sic] with residue, glass smoking devices with
                        residue, empty scale box, burnt foil, prescription pill
                        bottles with Troy Bell’s name, mail with Natasha
                        Long [sic] name on it, 223 bullet, 22 bullet and a
                        spent 45 round.


                     9. The pipes and a small plastic bag with residue were
                        tested. It [sic] field tested positive for
                        methamphetamine.


                     10. On April 6, 2016, I was advised by a neighbor that
                         there has been traffic at the residence during the


Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 4 of 14
                         night time hours. They stated that people are
                         staying for only a few minutes and leaving.


                     11. Due to my training and experience this is known to
                         be associated with a subject selling illegal narcotics.


                     12. On April 6, 2016, I also was contacted by Indiana
                         State Police Officer Bikowski with the Bremen Post
                         and he stated that he received information from
                         Brian Collins that he has known Bell since he was a
                         kid and he is a major drug dealer.


                     13. On April 7, 2016, I was advised that Natasha was
                         on Probation and is possibly on Home Detention. I
                         called Starke County Community Corrections and
                         they advised me that she was on pretrial home
                         detention.


                     14. On April 11, 2016, I conducted a second trash pull
                         from the residence. In the trash was mail belonging
                         to Troy Bell, two glass smoking pipes with residue,
                         a light bulb with one end removed with white
                         residue inside it, foil and a pen tube with white
                         residue.


                     15. I then took the evidence to the jail and conducted
                         field tests on the items. The items tested positive for
                         Methamphetamine.


                     16. On April 13, 2016, I was contacted by Hamlet
                         Officer Kholes. He stated that he received
                         information that Natasha was packaging
                         methamphetamine during the day and going to a
                         hotel at night to manufacture it.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 5 of 14
                           17. I believe that the statements of the Hamlet Officer
                               Kholes, Starks County Probation, Indiana State
                               Trooper Bikowski, and Brian Collins are truthful
                               and creditable.


                           18. Under the totality of the circumstances I believe that
                               probable cause exists to search the residence, . . .,
                               burn pits, trash and curtilage located [in] Starke
                               County, Indiana.


                           19. I respectfully request a search warrant be issued
                               ....


      Appellant’s Appendix, Volume II at 30-31. After a hearing on October 10,

      2016, the trial court denied Bell’s motion.


[5]   On July 25, 2017, Bell pleaded guilty to possession of methamphetamine, a

      Level 3 felony, in exchange for the State dismissing two counts of possession of

      a controlled substance, both Class A misdemeanors. During a jury trial on the

      remaining charges conducted on July 26-27, Bell objected to the introduction of

      the evidence found in the residence during the execution of the search warrant.

      Following the State’s presentation of evidence, the trial court granted Bell’s

      motion for judgment on the evidence regarding possession of marijuana, a

      Class B misdemeanor, but denied the same motion for maintaining a common

      nuisance, a Level 6 felony. At the conclusion of the trial, the jury found Bell

      guilty of dealing in methamphetamine, a Level 2 felony; maintaining a

      common nuisance, a Level 6 felony; and possession of paraphernalia, a Class C

      misdemeanor. The trial court later imposed an aggregate sentence of twenty-


      Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 6 of 14
      five years to be executed in the Indiana Department of Correction. Bell now

      appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[6]   Generally, we review a trial court’s ruling on the admissibility of evidence for

      an abuse of discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005).

      Where, as here, a search warrant was sought and granted, the search warrant is

      presumptively valid and the defendant bears the burden of overcoming such

      presumption. Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003). Our supreme

      court explained in State v. Spillers that:


              In deciding whether to issue a search warrant, “[t]he task of the
              issuing magistrate is simply to 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.” 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. at 238-39. A
              substantial 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. A reviewing court
              for these purposes includes both the trial court ruling on a motion
              to suppress and an appellate court reviewing that decision.
              Although we review de novo the trial court’s substantial basis
              determination, we nonetheless afford significant deference to the
              magistrate’s determination as we focus on whether reasonable


      Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 7 of 14
               inferences drawn from the totality of the evidence support that
               determination.


      847 N.E.2d 949, 953 (Ind. 2006) (some citations and quotations omitted).


                                           II. Search Warrant
[7]   On appeal, Bell argues that the trial court erroneously admitted evidence

      obtained from the execution of a search warrant lacking probable cause.1


[8]   The Fourth Amendment to the United States Constitution provides, “[t]he 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.” Article 1, Section 11 of the Indiana Constitution contains nearly

      identical language as the Fourth Amendment but “interpretations and

      applications vary between them.” Holder v. State, 847 N.E.2d 930, 935 (Ind.

      2006).


[9]   Trash searches are one of the ways that Article 1, Section 11 has been

      interpreted to provide broader protections than the Fourth Amendment. In the




      1
        By pleading guilty, Bell has waived any challenge to his conviction of possession of methamphetamine, a
      Level 3 felony. It is well-established that a defendant who pleads guilty forfeits a “plethora of substantive
      claims and procedural rights,” and a defendant cannot go on to challenge pre-trial orders on appeal. Alvey v.
      State, 911 N.E.2d 1248, 1250-51 (Ind. 2009) (holding a defendant cannot plead guilty and later challenge the
      trial court’s denial of a pre-trial motion to suppress).

      Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018              Page 8 of 14
       oft-cited case of Litchfield v. State, 824 N.E.2d 356, 363 (Ind. 2005), our supreme

       court held that for a search of a suspect’s trash to be reasonable under Article 1,

       Section 11, the search must be based on reasonable suspicion, despite no such

       Fourth Amendment prohibition. Herein lies the basis of Bell’s appeal: Bell

       alleges that the search warrant affidavit “contained a two tiered basis for

       attempting to establish probable cause,” in which the first portion of the

       affidavit contained “multiple statements of hearsay” used to demonstrate

       reasonable suspicion to “justify two trash pulls from Bell’s residence.” Brief of

       Defendant-Appellant at 8-9. Because police failed to corroborate the hearsay

       information, Bell argues, police lacked the requisite reasonable suspicion to

       conduct the trash searches at his residence, and therefore the “trash pull

       evidence” should not have been considered by the trial court in its

       determination of probable cause. Id. at 9.


[10]   While much of our jurisprudence regarding hearsay information in search

       warrant affidavits considers whether the information constituted probable

       cause, see, e.g., Scott v. State, 883 N.E.2d 147, 154 (Ind. Ct. App. 2008), here,

       Bell alleges that the hearsay information was insufficient to constitute

       reasonable suspicion—a lower standard. See Clark v. State, 994 N.E.2d 252, 261

       (Ind. 2013). In turn, the State admits the hearsay information was derived from

       “anonymous hearsay sources,” but argues that the reliability of the information

       was established through independent police investigation. Br. of Appellee at

       18. We agree with the State.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 9 of 14
[11]   Probable cause to search a premises “is established when a sufficient basis of

       fact exists to permit a reasonably prudent person to believe that a search of

       those premises will uncover evidence of a crime.” Helsley v. State, 809 N.E.2d

       292, 295 (Ind. 2004). In Alabama v. White, the United States Supreme Court

       explained:


               Reasonable suspicion is a less demanding standard than probable
               cause not only in the sense that reasonable suspicion can be
               established with information that is different in quantity or
               content than that required to establish probable cause, but also in
               the sense that reasonable suspicion can arise from information
               that is less reliable than that required to show probable cause.
               Adams v. Williams, [407 U.S. 143 (1972),] demonstrates as much.
               We there assumed that the unverified tip from the known
               informant might not have been reliable enough to establish
               probable cause, but nevertheless found it sufficiently reliable to
               justify a Terry stop. [Id. at 147]. Reasonable suspicion, like
               probable cause, is dependent upon both the content of
               information possessed by police and its degree of reliability.
               Both factors—quantity and quality—are considered in the
               “totality of the circumstances—the whole picture,” that must be
               taken into account when evaluating whether there is reasonable
               suspicion. Thus, if a tip has a relatively low degree of reliability,
               more information will be required to establish the requisite
               quantum of suspicion than would be required if the tip were
               more reliable.


       496 U.S. 325, 330 (1990) (some citations omitted).


[12]   Here, the search warrant affidavit stated that police had “received information

       from two different sources since September 2015 that [Bell] and Natasha Bell

       have been selling illegal drugs out of the residence . . .” Appellant’s App., Vol.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 10 of 14
       II at 30. The “sources” explained that Bell would frequent South Bend in order

       to retrieve heroin, traffic in and out of the residence would increase upon his

       return, the residence “smells like they are cooking methamphetamine,” and that

       on one occasion, Bell and Natasha were heard outside fighting when one yelled

       “I gave you $500 to buy drugs, where are my drugs[?]” Id.


[13]   As the supreme court explained in Alabama v. White, the “totality of the

       circumstances—the whole picture,” must be taken into account when

       evaluating reasonable suspicion. 496 U.S. at 330. Although the sources may

       have been known to Detective Olejniczak, he makes no such allegation in the

       search warrant affidavit. Therefore, we find it appropriate, as the State admits

       on appeal, State’s Br. of Appellee at 18, to view the hearsay information as

       originating from anonymous sources and, as is well-known in criminal law, “an

       anonymous tip alone is not likely to constitute” reasonable suspicion. Lampkins

       v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Alabama, 496 U.S. at 329-30).

       However, we note that because there was more than one source and both

       sources reported having observed the criminal activity firsthand, the tips are

       entitled to “greater weight than might otherwise be the case.” McGrath v. State,

       95 N.E.3d 522, 528 (Ind. 2018).


[14]   Nevertheless, in Sellmer v. State, our supreme court explained that in order for

       an anonymous tip to constitute reasonable suspicion, at least two conditions

       must be met:


               First, significant aspects of the tip must be corroborated by the
               police. Such corroboration requires that an anonymous tip give
       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 11 of 14
               the police something more than details regarding facts easily
               obtainable by the general public to verify its credibility. Second,
               an anonymous tip, if it is to be considered reliable enough to
               constitute reasonable suspicion to conduct an investigatory stop,
               must also demonstrate an intimate familiarity with the suspect’s
               affairs and be able to predict future behavior.


       842 N.E.2d 358, 361 (Ind. 2006) (citation and quotations omitted).


[15]   Here, the anonymous sources displayed familiarity with Bell, explained that his

       residence “smell[ed] like they [were] cooking methamphetamine,” and

       described his behavior—specifying that Bell retrieved heroin from South Bend

       and that traffic in and out of his residence increased upon his return.

       Appellant’s App., Vol. II at 30. Thereafter, Detective Olejniczak undertook

       investigative steps to corroborate the information, first contacting Natasha’s

       probation officer, learning that Natasha had tested positive for

       methamphetamine, and then conducting surveillance and observing “subjects

       frequenting the residence.” Id.


[16]   In turn, Bell alleges that the “facts provided by [Detective Olejniczak] in an

       attempt to corroborate the anonymous tips suffered from a lack of timeliness.”

       Br. of Defendant-Appellant at 11. Although “[i]t is a fundamental principle of

       search and seizure law that the information given to the magistrate or judge in

       the application for a search warrant must be timely,” Breitweiser v. State, 704

       N.E.2d 496, 499 (Ind. Ct. App. 1999), Bell’s argument misunderstands the

       relevant standard. Br. of Defendant-Appellant at 10. Bell cites only one case,

       Ashley v. State, 241 N.E.2d. 264, 368 (Ind. 1968), which involved probable

       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 12 of 14
       cause, and alleges that stale information, such as Natasha’s two-month old

       positive methamphetamine test, was insufficient to constitute probable cause.

       However, as is the premise of Bell’s appeal, the hearsay information and its

       corroboration need only show reasonable suspicion for the subsequent trash

       searches, not probable cause for the issuance of the search warrant.

       Accordingly, we view the evidence under this lesser standard, and “staleness of

       the information must be judged by the facts and circumstances of each case.”

       Breitweiser, 704 N.E.2d at 499. On the facts presented here, we do not believe

       the information obtained by Detective Olejniczak was too “stale” to provide

       corroboration of the underlying hearsay information. See Scott v. State, 883

       N.E.2d 147, 155 (Ind. Ct. App. 2008) (noting that a detective smelling ether at a

       residence within the proceeding two-month period corroborated details of

       hearsay information).


[17]   Therefore, mindful that we are to view the facts under the totality of the

       circumstances, we conclude that Detective Olejniczak possessed reasonable

       suspicion to conduct searches of Bell’s trash. See Love v. State, 842 N.E.2d 420,

       425 (Ind. Ct. App. 2006) (concluding anonymous tip with independent indicia

       of reliability and corroboration constituted reasonable suspicion for the purpose

       of a trash search). As such, and in the absence of argument that the probable

       cause affidavit lacked probable cause when including the fruits thereof, Bell has

       failed to overcome the presumption the search warrant is valid.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 13 of 14
[18]   Concluding the trial court did not abuse its discretion in admitting evidence

       obtained as the result of the search warrant, we affirm.


[19]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018   Page 14 of 14
