MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           FILED
this Memorandum Decision shall not be                       Aug 16 2017, 8:45 am
regarded as precedent or cited before any
                                                                 CLERK
court except for the purpose of establishing                 Indiana Supreme Court
                                                                Court of Appeals
the defense of res judicata, collateral                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Turner,                                            August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1702-CR-241
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1507-F2-26390



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 1 of 14
                                            Case Summary
[1]   Jerry Turner (“Turner”) was convicted of one count of Possession of a Narcotic

      Drug, as a Level 4 felony,1 and was sentenced to eight years imprisonment. He

      now appeals his conviction.


[2]   We affirm and remand with instructions.



                                                       Issue
[3]   Turner raises a single issue for our review, which we restate as whether the trial

      court abused its discretion when it admitted evidence obtained during a search,

      because the search warrant was not supported by probable cause. 2 We also

      address sua sponte a conflict between the trial court’s judgment and sentence as

      announced from the bench and the written records in this case.



                                Facts and Procedural History
[4]   Brandon Beeler (“Beeler”), a New Palestine resident, died of a heroin overdose

      on July 20, 2015. Investigation of Beeler’s death led police to talk to Beeler’s

      mother, Kristen Calhoun (“Calhoun”). Calhoun told police about two

      individuals with whom Beeler was friends, Angela Davis (“Davis”) and Isaac




      1
          Ind. Code § 35-48-4-6(a).
      2
        The State argues that even if the warrant was not valid, the good-faith exception applies. Because we
      resolve this case on the question presented above, we do not reach arguments concerning the applicability vel
      non of the good-faith exception.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017             Page 2 of 14
      Williams (“Williams”). Davis had been with Beeler the night prior to his death,

      and Williams was known to Calhoun as a heroin addict with whom Beeler had

      spent time in the weeks prior to his death.


[5]   Police contacted and separately interviewed both Davis and Williams, and

      drove with Davis to an area of Indianapolis to which Davis and Beeler had

      traveled on the night prior to Beeler’s death. Based upon their questioning of

      Williams, police identified both an apartment building and a specific apartment

      in which Williams had seen Beeler purchase heroin. Davis subsequently

      corroborated for police the building in which the apartment was located.


[6]   Based upon this information, on July 23, 2015, police applied for and received a

      search warrant for the apartment Williams identified to police. Police

      subsequently searched the apartment, which was occupied by Turner and

      another individual, Tiara White (“White”). The search yielded 20 grams of

      heroin, more than $1,000 in cash, and other items related to drug use, as well as

      information connecting Turner and White to the apartment. Based upon the

      results of the search, Turner and White were arrested.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 3 of 14
[7]    On July 28, 2015, the State charged Turner with Dealing in a Narcotic Drug, as

       a Level 2 felony;3 Possession of a Narcotic Drug, as a Level 3 felony; and

       Maintaining a Common Nuisance, as a Level 6 felony. 4


[8]    On September 17, 2015, Turner filed a motion to suppress the evidence yielded

       from the search of the apartment, challenging as invalid on its face the affidavit

       submitted in support of the police request for the search warrant. On December

       3, 2015, the trial court denied the motion to suppress. Turner subsequently

       sought and was denied certification for an interlocutory appeal of the ruling on

       the motion to suppress.


[9]    On March 14, 2016, Turner moved the trial court to reconsider the motion to

       suppress evidence. On April 16, 2016, the trial court denied the motion; Turner

       again sought and was denied certification for interlocutory appeal.


[10]   On August 22, 2016, a bench trial was conducted, and Turner and White were

       tried jointly. Counsel for both defendants objected to the admission of the

       evidence obtained from the search, and once more Turner renewed his motion

       to suppress. During the trial, Turner moved for judgment on the evidence as to

       the charges of Dealing in a Narcotic Drug and Maintaining a Common

       Nuisance. After the close of evidence, the State requested that the trial court

       consider a lesser-included offense to the Possession of Narcotics charge against




       3
           I.C. § 35-48-4-1(a)(2).
       4
           I.C. § 35-48-4-13(b)(1).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 4 of 14
       Turner, so that the trial court would determine whether to convict Turner of

       Possession of Narcotics as a Level 4 felony, rather than as a Level 3 felony. At

       the trial’s conclusion, the court took the matters before it under advisement.


[11]   On August 22, 2016, the trial court granted Turner’s motion for judgment on

       the evidence as to Maintaining a Common Nuisance, finding him not guilty.


[12]   On October 12, 2016, the trial court denied the motion to suppress. On the

       same day, the court found Turner guilty of Possession of a Narcotic Drug, as a

       Level 4 felony, and found him not guilty of Dealing in a Narcotic Drug.


[13]   A sentencing hearing was conducted on January 12, 2017. At the conclusion of

       the hearing, the trial court sentenced Turner to eight years imprisonment, with

       four years of that time executed in the Department of Correction, two years

       executed in community corrections, and two years suspended to probation.


[14]   This appeal ensued.



                                 Discussion and Decision
                  Probable Cause to Support a Search Warrant
[15]   Turner challenges the trial court’s admission into evidence, over his objection,

       of items obtained from execution of the search warrant. The Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution both afford protection from warrants issued without




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 5 of 14
probable cause. That right is further codified in the Indiana Code, which

provides:


        (a) Except as provided in section 8 of this chapter, and subject to
        the requirements of section 11 of this chapter, if applicable, no
        warrant for search or arrest shall be issued until there is filed with
        the judge an affidavit:


                (1) particularly describing:


                         (A) the house or place to be searched and the things
                         to be searched for; or


                         (B) particularly describing the person to be arrested;


                (2) alleging substantially the offense in relation thereto and
                that the affiant believes and has good cause to believe that:


                         (A) the things sought are concealed there; or


                         (B) the person to be arrested committed the offense;
                         and


                (3) setting forth the facts known to the affiant through
                personal knowledge or based on hearsay, constituting the
                probable cause.


        (b) 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



Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 6 of 14
                       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.


       I.C. § 35-33-5-2.


[16]   Trial courts are afforded broad discretion in ruling on the admissibility of

       evidence, and we reverse only upon a showing of an abuse of that discretion.

       Bowles v. State, 820 N.E.2d 739, 742 (Ind. Ct. App. 2005), trans. denied. The role

       of the trial court in determining whether to issue a search warrant “‘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)). A

       reviewing court’s task “is to determine whether the magistrate had a ‘substantial

       basis’ for concluding that probable cause existed.” Id. (quoting Gates, 462 U.S.

       at 238-39). To determine whether such a substantial basis existed, the

       reviewing court focuses on whether reasonable inferences drawn from the

       totality of the evidence supported a determination of probable cause, and the

       reviewing court will afford the trial court significant deference in that review.

       Id. at 181-82. A reviewing court “includes both the trial court ruling on a

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

       In conducting our review, “we consider only the evidence presented to the

       issuing magistrate and not [post hoc] justifications for the search.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 7 of 14
[17]   Turner argues that the search warrant was invalid because the information used

       by the police in the warrant affidavit—the statements made to police by Davis

       and Williams—was not sufficiently reliable or corroborated to support a

       determination of probable cause, and that accordingly the search warrant was

       improperly issued. Turner draws our attention to several cases that address

       questions related to the use of hearsay and informants as sources of information

       for supporting search warrant applications, and argues that 1) neither Davis nor

       Williams were typical “concerned citizens,” so that their statements required

       additional corroboration or indicia of reliability, which did not occur, and 2) the

       information provided by these individuals was stale and thus not sufficiently

       timely to support the issuance of the warrant.


[18]   Our Indiana Supreme Court has previously addressed the question of the

       reliability of concerned citizens and informants in the context of determining

       the existence of probable cause or reasonable suspicion. In Pawloski v. State, the

       court distinguished generally between professional informants and anonymous

       tipsters, on the one hand, and cooperative citizens, on the other. 269 Ind. 350,

       353-54, 380 N.E.2d 1230, 1232-33 (1978). Though it observed that there are

       general approaches to determining the reliability of a source of information in

       each category, the Pawloski Court nevertheless reiterated that reliability is to be

       determined “by reference to (1) an informer’s past record of reliability or (2) by

       extrinsic facts proving an informer’s information reliable.” Id. at 353 (citing

       Bowles v. State, 256 Ind. 27, 267 N.E.2d 56 (1971)). And even with guidelines

       for each category, “the requirement for corroboration is not totally eliminated.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 8 of 14
       The amount of evidence necessary to satisfy the probable cause test is largely

       determined on a case-by-case basis.” Id. at 255.


[19]   The Indiana Supreme Court softened the apparently firm distinctions between

       concerned citizens, on the one hand, and professional informants and

       anonymous tipsters, on the other. Kellems v. State, 842 N.E.2d 352, 355-56 (Ind.

       2006), reversed on reh’g on other grounds, 849 N.E.2d 1110. In Kellems, the court

       tempered the categories set forth in Pawloski to apply primarily to matters of

       reasonable suspicion, and not probable cause. Id. at 356 (citing Pawloski, 380

       N.E.2d at 1232-33). Thus, information obtained from informants must still be

       reliable under the totality of the circumstances, and, as the U.S. Supreme Court

       observed in Gates, “[r]igid legal rules are ill-suited to an area of such diversity”

       as assessing the reliability of information provided in support of a search

       warrant application. Gates, 462 U.S. at 232; Jaggers, 687 N.E.2d at 182

       (addressing the assessment of reliability of anonymous informants).


[20]   Our review of the search warrant application here leads us to conclude that the

       information in the warrant and its sources were sufficiently reliable under the

       totality of the circumstances. On July 20, 2015, Police commenced their

       investigation of Beeler’s death by talking with Calhoun, who informed police

       that her son, Beeler, had been in the company of Davis on the night before he

       died. Upon speaking with police, Davis provided a detailed account of the

       events of the night in question. This included information that Beeler had used

       her phone to call someone called “Juicy Jay” or “Juice,” said he had to pay

       someone money, and had Davis drive him to an apartment complex on the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 9 of 14
       northeast side of Indianapolis and to several locations afterward, including a

       Wal-Mart in which Beeler stayed for about twenty-five minutes for what was

       supposed to be a brief errand. The night’s events made Davis suspicious of

       Beeler’s behavior. She eventually left Beeler at his mother’s home at 11:30 that

       night; unable to sleep, she sent a text message to him at 2:00 a.m. the following

       day, and knew that it had been received because it was flagged as “read” on her

       phone. Davis was “eager” to cooperate in helping police to locate the

       apartment complex to which she had taken Beeler, but was unable to easily find

       the complex because Beeler had directed her there, and said she would do more

       research to see if she could locate the apartment complex.


[21]   A day later, on July 22, 2015, police again spoke with Calhoun, who identified

       Williams as a friend of Beeler’s who also had a heroin addiction. Police spoke

       with Williams that day, and he stated that he was familiar with someone called

       “Juice,” provided a physical description for the person, and identified the

       apartment in which he had met “Juice” by providing a specific building

       address—3418 Alsuda Court in Indianapolis—and the location of the specific

       apartment. Williams provided police with a telephone number for “Juice,”

       which was the same number that Davis had provided to police as the number

       Beeler dialed from her phone on July 19, 2015. After obtaining this

       information from Williams, police again contacted Davis. Davis agreed to

       travel by car with police to an intersection in Indianapolis, and was able to

       direct police from that intersection to the same apartment building that




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 10 of 14
       Williams had identified by street number—3418 Alsuda Court—and physically

       identified the building by pointing to it.


[22]   These are hardly the kinds of anonymous and unverifiable statements with

       which courts have been hesitant to conclude support determinations of

       reasonable suspicion or probable cause. Davis willingly and eagerly helped

       police, Williams’s statements were made potentially against his own interests,

       and information gathered from one was confirmed by the other. Taken

       together, we cannot say, under the totality of the circumstances, that the

       statements provided to police by Davis and Williams were so lacking in

       reliability as to fail to support a finding of probable cause.


[23]   Nor do we think that staleness disqualifies the information as unreliable. An

       application for a warrant must present timely information. Frasier v. State, 794

       N.E.2d 449, 457 (Ind. Ct. App. 2003), trans. denied. There is no bright-line rule

       setting forth the amount of time in which police must seek a warrant in the time

       that may elapse between the occurrence of the facts upon which the request for

       the warrant is based and the date of the issuance of the warrant. Id. Rather, the

       facts and circumstances of each case will determine whether the information is

       tainted by staleness. Id.


[24]   Here, a police investigation commenced on the day of Beeler’s death—July 20,

       2015—and the search warrant was issued within three days based upon

       corroborated information obtained on July 21 and 22, 2015. The warrant was

       served on July 23, 2015. While Turner suggests that Williams’s statements


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 11 of 14
       lacked any connection to specific periods of time in which he and Beeler had

       encountered “Juice,” the totality of the evidence supports a conclusion that the

       information in the warrant was not stale in light of Davis’s corroboration of

       Williams’s statements concerning locations and phone numbers based upon

       Davis’s description of the events of July 19, 2015. We accordingly leave the

       trial court’s decisions as to the admissibility of evidence undisturbed.


                                         Conflicting Orders
[25]   We sua sponte turn to a discrepancy between the proceedings at trial and the trial

       court’s records. After the close of evidence, counsel for White asked that the

       trial court consider a lesser-included charge in her case. Partially in response to

       this, the State addressed the trial court:

               Judge, and with that, as to Count II as to Mr. Turner, he’s
               charged with level 3 possession because of a prior. It’s not his
               prior… So, I’m going to be asking for a level 4 possession, a
               lesser included of the 3.


       (Tr. Vol. II at 94.) The trial court confirmed the State’s request: “You’re not

       moving to amend? You’re just asking for a lesser included on Count II?,” to

       which the State responded, “Yes.” (Tr. Vol. II at 94.) Turner agreed to this

       course of action: “That’s fine with us.” (Tr. Vol. II at 94.)


[26]   Accordingly, when reaching its guilty finding and orally entering judgment and

       a sentence against Turner, the trial court found Turner guilty of Possession of

       Narcotics as a Level 4 felony, and determined Turner’s sentence on that basis.

       (Tr. Vol. II at 106, 162.) Our review of the docket and the sentencing order,
       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 12 of 14
       however, indicate that the trial court’s written records reflect conviction and

       sentencing for a Level 3 felony. The sentencing order characterizes the guilty

       finding as corresponding to “35-48-4-6(a)/F3: Possession of a Narcotic Drug.”

       (App’x Vol. II at 19.) The court’s Chronological Case Summary reads

       similarly: “Sentenced: …. 2. 35-48-4-6(a)/F3).” (App’x Vol. II at 13.) The

       aggregate term of Turner’s sentence, eight years, falls within the statutory

       sentencing range for both Level 4 and Level 3 felonies. See I.C. §§ 35-50-2-5 &

       35-50-2-5.5 (providing a sentencing range of three to sixteen years for a Level 3

       felony, and a sentencing range of two to twelve years for a Level 4 felony).


[27]   Thus, the trial court’s statements from the bench conflict with the docket and

       the court’s written sentencing order. Nevertheless, it is clear that the trial court

       intended to enter judgment and sentence upon a Level 4 felony. We

       accordingly remand with instructions to the trial court to correct its written

       sentencing order and the docket in conformance with its entry of judgment and

       oral sentencing order.



                                               Conclusion
[28]   The statements in the affidavit submitted in support of the search warrant were

       sufficiently reliable and timely to support the trial court’s finding of probable

       cause, and its admission of the evidence obtained as a result of service of the

       warrant. Because the trial court’s oral entry of judgment and sentence conflict

       with its written records, we remand with instructions to enter a new written

       sentencing order and to correct the docket.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 13 of 14
[29]   Affirmed in part and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CR-241| August 16, 2017   Page 14 of 14
