                                                                              FILED
                                                                         May 02 2018, 7:40 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James H. Voyles, Jr.                                      Curtis T. Hill, Jr.
Tyler D. Helmond                                          Attorney General of Indiana
Indianapolis, Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher Darring,                                      May 2, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1706-CR-1426
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Shatrese M.
Appellee-Plaintiff                                        Flowers, Judge
                                                          The Honorable Peggy Ryan Hart,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G20-1408-F3-41089



Altice, Judge.




Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018                            Page 1 of 14
                                                   Case Summary


[1]   Christopher Darring brings this interlocutory appeal of the trial court’s denial of

      his motion to suppress evidence obtained as the result of a search of his home.

      Specifically, he contends that the probable cause affidavit used to secure the

      search warrant contained false information and material omissions in reckless

      disregard for the truth.


[2]   We affirm.


                                          Facts & Procedural History


[3]   After 2:00 in the morning on August 22, 2014, Officer Dwayne May of the

      Indianapolis Metropolitan Police Department (IMPD) was dispatched to 3132

      W. 61st Street. He was responding to Darring’s 911 call indicating that another

      man – later identified as Jason Holland, his next-door neighbor – was drunk

      and trying to start an altercation with Darring. Officer May spoke with both

      men briefly and learned that the argument was about money. Before leaving,

      he instructed them to stop acting like children, work it out, and sober up.


[4]   Around the same time the next morning, Holland called 911 to report that

      Darring had shot him.1 Officer May was again dispatched to the scene. He




      1
        Darring had, in fact, shot at the ground near Holland’s feet and the bullet ricocheted and hit Holland in the
      leg, causing a grazing injury.

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018                             Page 2 of 14
      parked along the road between the two properties and immediately smelled the

      odor of burnt marijuana after getting out of his vehicle. Officer May first spoke

      with Holland, who was intoxicated and had an injury to his leg. Officer May

      did not smell marijuana on Holland’s person.


[5]   After speaking with Holland, Officer May walked up the driveway toward

      Darring’s house. Darring came out the front door and met Officer May in the

      driveway about twenty feet from the door. Officer May could smell the odor of

      raw marijuana, which he believed was coming from the house. He also smelled

      the odor of burnt marijuana on Darring’s person as they spoke. Darring

      admitted shooting at the pavement to get Holland to leave his property. Officer

      May then asked Darring for identification and the two walked onto the front

      porch. Darring opened the storm door and then slightly opened the main door

      before closing it and telling Officer May that he did not want him to come

      inside. At that time, Officer May smelled the odor of marijuana coming from

      inside the house. Officer May then placed Darring under arrest for criminal

      recklessness for the shooting incident.


[6]   Additional IMPD officers arrived at the scene to assist. Several noticed the

      strong odor of raw marijuana near the house. Each time the exhaust fan on top

      of the house kicked on, the marijuana smell became stronger outside.

      Additionally, two potted marijuana plants were located directly behind

      Darring’s shed and marijuana pieces – referred to as shake – were discovered

      along the fence line between the Darring’s and Holland’s properties. Darring



      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018   Page 3 of 14
      had several surveillance cameras around the outside of his house, one of which

      Officer May took down at some point.


[7]   Officer May called for a narcotics detective because he believed Darring had a

      grow operation inside the house. IMPD Sergeant Stephan Crooke arrived on

      the scene around 4:30 a.m. and spoke with Officer May and then Holland.

      Holland told Sergeant Crooke about the incident and then informed him that he

      had been in Darring’s house the prior week and observed thirty pounds of

      marijuana. Holland indicated that he had been in Darring’s house several times

      and had smoked marijuana with Darring inside the house before. Darring, who

      was handcuffed outside, refused to speak with Sergeant Crooke. Sergeant

      Crooke then knocked on the front door and walked around the house. In

      addition to smelling a strong odor of raw marijuana near the shed and fence

      line, Sergeant Crooke could smell it coming from inside the house. Based on

      his training and experience Sergeant Crooke felt confident that there was

      “probably a grow in there possibly, or a large amount” of raw marijuana inside.

      Transcript Vol. III at 44.


[8]   After gathering information from the scene, Sergeant Crooke returned to his

      office to prepare a probable cause affidavit for a search warrant. The affidavit

      written by Crooke read, in relevant part, as follows:


              On 8/23/2014 at approximately 2:12 AM, Officer D. May and
              Officer S Greene received a run to a person shot at 3132 W 61st
              St. When Officer May arrived he spoke with the victim, a Jason
              Holland. Holland stated that his neighbor, Chris Darring, had
              shot at him with a semi automatic handgun while the two were

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018    Page 4 of 14
        in the yard between their residences. Chris Darring lives at 3132
        W. 61st St and Jason Holland lives in the residence immediately
        to the east.


        Officer May went to…Darring’s residence, and knocked on the
        door. Chris Darring answered the door and came onto the porch
        to talk with officers. Officer May could immediately smell a
        strong odor of what he recognized as marijuana coming from
        inside the residence. Officer May has been in Law Enforcement
        for 18 years. Officer May knows the odor of marijuana from his
        training as a law enforcement officer and past experience
        investigating numerous marijuana cases.


        While assisting Officers were conducting their investigation into
        the person shot report by looking for spent shell casings in the
        yard between the two residences, Officer S Greene and Officer
        Kazanauth identified two marijuana plants outside by the shed at
        3132 W. 61st St.


        I arrived on scene at approximately 430 AM. At that time I went
        to 3132 W 61st St. and knocked on the door. I observed cameras
        on the outside of the residence, and I could also smell the odor of
        raw marijuana. I spoke with Chris Darring. I attempted to
        obtain consent to search and Darring stated he wanted an
        attorney.


        Through my training and experience as a law enforcement
        officer, I have become familiar with the odor of marijuana. I was
        exposed to the sight and odor of both raw and burned marijuana
        at the training academy and have participated in hundreds of
        arrests for marijuana. I immediately knew, based on this training
        and experience with the sight and odor of marijuana, that the
        odor inside of the residence was raw marijuana.




Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018    Page 5 of 14
               I also talked with the victim Jason Holland. Holland had a small
               graze on his leg that appeared consistent with a graze wound
               from a gun shot. Holland further said that he was in the
               residence at 3132 W 61st St last week and observed about 30
               pounds of marijuana inside the residence. Holland stated he is a
               casual smoker of marijuana and knows marijuana. Holland
               stated that he would buy marijuana from Chris Darring and they
               were friends for awhile.


               Based upon the facts and circumstances set forth above, I believe,
               and have good cause to believe, that probable cause exists to
               believe that there is a controlled substance, that is: Marijuana,
               inside of the residence…which would constitute evidence of a
               crime under the Indiana Uniform Controlled Substances Act.


       Motion to Suppress Exhibits, Defendant’s Exhibit 27. The warrant was issued at

       8:46 a.m.


[9]    During the subsequent search of the residence, police recovered approximately

       fifteen pounds of marijuana contained in heat-sealed packages and ball jars, as

       well as cocaine, psilocybin mushrooms, and 155 Xanax pills. Officers also

       found evidence of marijuana wax being manufactured in the kitchen and

       garage. Additionally, glass smoking pipes, scales, a heat-sealing device, a

       ledger, a safe, a surveillance system, and over $13,000 in cash were found. The

       raw marijuana smell “overtook” Officer May when he walked inside the home

       to perform the search. Transcript Vol. II at 185.


[10]   On August 26, 2014, the State charged Darring with Level 3 felony dealing in a

       schedule IV controlled substance, Level 5 felony dealing in marijuana, Level 6



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018   Page 6 of 14
       felony possession of cocaine, Class B misdemeanor possession of marijuana, 2

       Class A misdemeanor possession of a controlled substance, and Class B

       misdemeanor criminal recklessness. The State later amended the charging

       information to elevate the criminal recklessness count to a Level 6 felony.


[11]   In September 2015, Darring filed a motion to suppress the evidence found

       inside his house, challenging the validity of the search warrant and, particularly,

       the affidavit supporting the warrant. The trial court held a Franks hearing3 on

       February 22, 2016, and September 19, 2016. The parties later filed written

       arguments in support of their respective positions. Darring’s arguments were

       laid out more precisely in the memorandum he filed with the trial court on

       April 20, 2017. Specifically, he argued that the affidavit upon which the search

       warrant was based contained material factual omissions that were made with

       reckless disregard as to whether the omissions made the affidavit misleading.

       Darring complained that Sergeant Crooke left out the following facts from the

       affidavit: Officer May had responded to the same location the previous morning

       to break up a dispute between Darring and Holland; marijuana shake was

       discovered along the fence line; raw marijuana could be smelled along the fence




       2
           This count was alleged in a separate part to be a Level 6 felony on the basis of a prior conviction.
       3
          In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that an
       evidentiary hearing is required “where the defendant makes a substantial preliminary showing that a false
       statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in
       the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause”. At
       this hearing, referred to as a Franks hearing, the defendant is allowed to challenge the factual statements
       made in a search warrant affidavit. Id.; see also Keeylen v. State, 14 N.E.3d 865, 870 n.3 (Ind. Ct. App. 2014),
       clarified on reh’g, 21 N.E.3d 840 (2014), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018                                 Page 7 of 14
       line and near the shed; and Officer May smelled marijuana throughout the

       neighborhood upon exiting his vehicle on the night in question. In addition to

       these omissions, Darring noted that due to a misunderstanding, the affidavit

       alleged that Officer May talked with Darring after knocking on the front door

       and smelled marijuana when the door was opened. Darring also emphasized

       his expert witness’s testimony opining that no odor of raw marijuana would

       have been emanating from the home at the time the officers were on the scene

       because of the way the marijuana was packaged.


[12]   In sum, Darring argued that if the correct and full information had been

       included in the affidavit, “it may have suggested to the issuing magistrate that

       the smell of marijuana may have been coming from somewhere outside the

       house” rather than inside the residence and that “Holland’s statements were

       motivated by ill-will toward Darring”. Appendix Vol. II at 57.


[13]   On April 27, 2017, the trial court issued an order denying Darring’s motion to

       suppress. Thereafter, Darring filed a motion to certify the ruling for

       interlocutory appeal, which the trial court granted on June 19, 2017. This court

       accepted jurisdiction of the appeal on August 7, 2017, pursuant to Ind.

       Appellate Rule 14(B). The interlocutory appeal is now before us.


                                            Discussion & Decision


[14]   Our review of the denial of a motion to suppress evidence is similar to other

       sufficiency issues. Keeylen, 14 N.E.3d at 871. We will affirm if there was

       substantial evidence of probative value to support the trial court’s ruling. Id. In

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018    Page 8 of 14
       making this determination, we will not reweigh the evidence, and we will

       consider conflicting evidence most favorably to the ruling. Id. Unlike other

       sufficiency matters, however, we will consider uncontested evidence that is

       favorable to the defendant. Id.


[15]   Darring argues that the probable cause affidavit contained false information and

       material omissions and was, therefore, submitted by Sergeant Crooke with a

       reckless disregard for the truth. Further, Darring contends that adding back in

       the material omissions and removing the false information results in the

       affidavit lacking probable cause.


[16]   The Fourth Amendment to the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution both require probable cause for the

       issuance of a search warrant. Keeylen, 14 N.E.3d at 871. The determination of

       probable cause is based on the facts of each case and requires the issuing

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

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

       of a crime will be found in a particular place.” Id.


[17]   “A warrant is invalid where the defendant [establishes] by a preponderance of

       the evidence that the affidavits used to obtain the warrant contain perjury by the

       affiant, or a reckless disregard for the truth by him, and the rest of the affidavit

       does not contain materials sufficient to constitute probable cause.” Jones v.

       State, 783 N.E.2d 1132, 1136 (Ind. 2003) (citing Franks, 438 U.S. at 171-72).

       “[M]istakes and inaccuracies of fact stated in a search or arrest affidavit will not


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018      Page 9 of 14
       vitiate the reliability of the affidavits so long as such mistakes were innocently

       made.” Utley v. State, 589 N.E.2d 232, 236-37 (Ind. 1992).


[18]   In addition to the inclusion of false or misleading testimony in the affidavit, the

       defendant may also establish that the affiant omitted information “essential to a

       finding of probable cause”. Keeylen, 14 N.E.3d at 872. In the case of an alleged

       omission, the defendant must establish that the affiant engaged in deliberate

       falsehood or reckless disregard for the truth in omitting the information and

       show that probable cause would no longer exist if such omitted information

       were considered by the issuing judge. Id. “Franks protects only against

       omissions that are ‘designed to mislead, or that are made in reckless disregard

       of whether they would mislead’”. Id. (quoting United States v. Colkley, 899 F.2d

       297, 301 (4th Cir. 1990)).


[19]   We turn first to the inaccurate information contained in the affidavit. There is

       no dispute that Sergeant Crooke got it wrong when he indicated in the affidavit

       that Officer May initially knocked on Darring’s door, Darring then came out to

       talk with him on the porch, and Officer May immediately smelled a strong odor

       of marijuana coming from inside. In fact, Darring met Officer May outside

       about twenty feet from the door. A few minutes later, Officer May followed

       closely behind as Darring went onto the porch and started to enter through the




       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018    Page 10 of 14
       front door to obtain his identification, and Officer May then smelled the odor of

       raw marijuana coming from inside the house.4


[20]   As Darring conceded below, this mistake was due to a misunderstanding. We

       can find no indication in the record that this misinformation in the affidavit was

       made with reckless disregard for the truth or that the mistake was anything

       other than innocently made. Nor do we believe this slight mischaracterization

       of when Officer May smelled marijuana at the front door was critical to the

       probable cause determination.5 Further, we find meritless Darring’s

       unsupported assertion that Sergeant Crooke engaged in reckless disregard for

       the truth when he signed the affidavit without having personal knowledge of the

       events prior to his arrival and without Officer May’s review. See Utley, 589

       N.E.2d at 236 (“as long as participating officers seeking the issuance of a search

       warrant collectively have probable cause, their individual knowledge can be

       imputed to the officer signing the affidavit in support of the search warrant”).




       4
          Both Officer May and Sergeant Crooke testified that they smelled the odor of raw marijuana coming from
       inside the house. Darring directs us to his expert’s testimony opining that it would have been impossible for
       the officers to attribute the smell to the house. We agree with the State that Darring’s argument in this regard
       is an improper request to reweigh the evidence and judge the credibility of the witnesses.
       5
         We do not agree that this case is similar to Jaggers v. State, 687 N.E.2d 180 (Ind. 1997). In Jaggers, police
       obtained a search warrant of the defendant’s home based on an anonymous tip and an officer’s testimony
       that two marijuana plots were located near the defendant’s home. Actually, however, the plots were two and
       six miles from the home. Our Supreme Court held that this mischaracterization, even if innocent, was
       “critical when viewed in the factual context.” Id. at 185. The Court explained: “Placing the plots ‘near’
       Jaggers’s residence implied a link between Jaggers and the plots that was not supported by the evidence. This,
       in turn, implied involvement by Jaggers in marijuana trafficking that was otherwise not reasonably inferable
       from the officer’s testimony.” Id. In the case at hand, the evidence establishes that Officer May smelled the
       odor of marijuana at the front door when Darring opened it. We do not find critical to the probable cause
       determination whether this occurred when Officer May first spoke with Darring or a few minutes later.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018                            Page 11 of 14
[21]   As for the omissions, we initially observe that Darring improperly asserts

       several alleged omissions that he did not raise below. Most notably, Darring

       argues for the first time on appeal that Sergeant Crooke failed to state in the

       affidavit that the potted marijuana plants found behind the shed were in an area

       where there was no fence dividing the properties and that it was not clear which

       property the pots were actually on. Because Darring did not advance this basis

       below, it is waived. See Merritt v. State, 803 N.E.2d 257, 261 (Ind. Ct. App.

       2004) (issue waived where the State did not advance the argument in its

       memorandum in opposition to the motion to suppress or at the suppression

       hearing).


[22]   We will limit our discussion to the omissions raised in Darring’s memorandum

       to the trial court in support of his motion to suppress. Darring alleges the

       following material omissions: 1) the previous day, Officer May had responded

       to a disturbance between Holland and Darring; 2) marijuana shake was found

       along the fence line; 3) officers smelled the odor of raw marijuana along the

       fence line and near the shed; and 4) Officer May smelled the odor of marijuana

       throughout the neighborhood upon exiting his vehicle on the night in question.


[23]   Aside from noting these factual omissions, Darring makes no attempt to

       establish that Sergeant Crooke made them deliberately to mislead the issuing

       magistrate or with reckless disregard. Moreover, we cannot agree with Darring

       that these factual omissions were material to the determination of probable

       cause. See Query v. State, 745 N.E.2d 769, 772 (Ind. 2001) (“The typical



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018   Page 12 of 14
       formulation of ‘material’ facts is that they cast doubt on the existence of

       probable cause.”).


[24]   With respect to the first omission, Darring argues that the previous day’s police

       run was critical information to a fair probable cause determination because it

       would have “established for the issuing magistrate a motive for Holland to

       accuse Darring.” Appellant’s Brief at 16. We agree with the State that this

       evidence was immaterial because the animosity between Holland and Darring

       was apparent from the fact that Darring shot at Holland.


[25]   Additionally, we reject Darring’s undeveloped claim that Holland’s statements

       to Sergeant Crooke should not have been included in the affidavit because his

       credibility was unknown. Darring simply directs us to Jaggers for the

       proposition that “uncorroborated hearsay from a source whose credibility is

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

       issue a search warrant.” Jaggers, 687 N.E.2d at 182. Unlike in Jaggers,

       however, Holland’s identity was not unknown to the officers. See id. (observing

       that use of information from anonymous informants presents heightened

       reliability concerns because there is no possibility of criminal liability for filing a

       false police report). Further, Holland lived next door to Darring, had just been

       shot at and injured by Darring, and implicated himself in criminal activity when

       speaking with Sergeant Crooke. Holland’s statements were properly included

       in the probable cause affidavit and were just a small part of the evidence

       supporting probable cause.



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018      Page 13 of 14
[26]   Finally, we turn to the omissions related to the odor and existence of raw

       marijuana on the curtilage of Darring’s home, as well as the general odor of

       marijuana Officer May detected upon exiting his vehicle. The affidavit

       referenced the two marijuana plants near the shed but did not indicate that

       marijuana shake was found along the fence line or that marijuana odor was

       detected in these areas and generally in the neighborhood. Darring argues that,

       if included, these facts would have caused the magistrate to “conclude that

       there was not a reasonable ground to believe Darring’s residence was emitting

       the odor.” Appellant’s Brief at 15. We cannot agree. The fact that there were

       other sources of the odor does not negate the fact that both Officer May and

       Sergeant Crooke smelled the odor of raw marijuana coming from inside the

       house. In particular, Sergeant Crooke averred that he knocked on the door,

       observed cameras on the outside of the home, and could smell the odor of raw

       marijuana. Sergeant Crooke went on to state in the affidavit that based on his

       training and experience, he immediately knew that the odor inside the residence

       was raw marijuana.


[27]   In sum, even if all of this omitted evidence had been included in the affidavit,

       probable cause for the issuance of the search warrant would still exist.

       Accordingly, the trial court properly denied Darring’s motion to suppress

       evidence discovered as a result of the search.


[28]   Affirmed.


       Robb, J. and Vaidik, C.J., concur.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1426 | May 2, 2018     Page 14 of 14
