                                                                           Feb 25 2015, 10:16 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      W. Trent Van Haaften                                       Gregory F. Zoeller
      Van Haaften & Farrar, Attorneys At Law LLC                 Attorney General of Indiana
      Mount Vernon, Indiana
                                                                 Cynthia L. Ploughe
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David B. Cartwright,                                      February 25, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                65A01-1404-CR-170
              v.                                                Appeal from the Posey Circuit Court.
                                                                The Honorable James M. Redwine,
                                                                Judge.
      State of Indiana,                                         Cause No. 65C01-1303-FB-89
      Appellee-Plaintiff.




      Darden, Senior Judge


                                       Statement of the Case
[1]   Police officers executed a search warrant at David B. Cartwright’s home and

      found evidence that caused the State to charge him with several

      methamphetamine-related offenses. The trial court held a bench trial and

      convicted Cartwright of manufacturing methamphetamine, a Class B felony,

      Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015                  Page 1 of 21
      Ind. Code § 35-48-4-1.1 (2006); possession of methamphetamine, a Class C

      felony, Ind. Code § 35-48-4-6.1 (2006); possession of chemical reagents or

      precursors with intent to manufacture a controlled substance, a Class C felony,

      Ind. Code § 35-48-4-14.5 (2006); and maintaining a common nuisance, a Class

      D felony, Ind. Code § 35-48-4-13 (2001).


[2]   Cartwright raises one issue, which we restate as whether the trial court abused

      its discretion in admitting evidence discovered as a result of the search warrant.

      Concluding that there was insufficient probable cause to issue a search warrant,

      and that the evidence was thus inadmissible, we reverse.


                                   Facts and Procedural History
[3]   On March 6, 2013, Detective Jeremy Fortune met with a confidential informant

      who was incarcerated at the Posey County Jail. The informant had said that

      he1 wanted to talk about “drug information in Posey County.” Tr. p. 6.

      Detective Fortune did not know anything about the informant before the

      meeting. The informant was being held because he had an active arrest warrant

      for failure to appear in court in Illinois on an unidentified charge.


[4]   Detective Fortune took an audiotaped statement from the informant. The

      informant stated that a person he knew as “Dave” had manufactured

      methamphetamine at a house in rural Posey County. Appellant’s App. p. 31.




      1
          The record does not identify the informant’s gender. We refer to the informant as “he.”


      Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015                   Page 2 of 21
      The informant explained that he knew of Dave’s activities because he had

      purchased methamphetamine from Dave “within the last 3 or 4 months” and

      had seen Dave making methamphetamine at that time. Id. at 31-32. In

      addition, the informant stated that he had seen Dave trade methamphetamine

      for money, pseudoephedrine, and a gun “in the past.” Id.


[5]   The informant further told Detective Fortune that he had been in Dave’s house

      and had seen a number of firearms and ammunition. He had also heard Dave

      state a belief that he was being followed by police officers and threaten specific

      officers with harm. The informant stated that Dave told him that if police tried

      to arrest him, he would not “go down without a fight.” Id. at 34.


[6]   The informant told the officer how methamphetamine is manufactured. He

      also explained how Dave made methamphetamine and disposed of the waste

      products. He further told Detective Fortune he believed that Dave had six or

      eight regular buyers. In addition, he explained how to get to Dave’s house,

      identified Dave’s house on a map drawn by Detective Fortune, and described

      the interior of the house.


[7]   The informant told Detective Fortune he had provided information about drug

      activity to Greg Hannish, an Illinois police officer, “approximately 8 years

      ago.” Id. Detective Fortune contacted Officer Hannish, who knew the

      informant and said that the informant “had provided drug information to him

      in the past.” Id.




      Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 3 of 21
[8]    Based upon the interview, Detective Fortune concluded the informant was

       referring to Cartwright, who Fortune knew lived in rural Posey County. The

       area pointed out on the map matched the location of Cartwright’s house. In

       addition, the informant had stated that there was an RV parked in front of

       Dave’s house, and a detective drove by Cartwright’s property and saw from the

       road an RV parked in the front. Other than observing the RV, the officers did

       not make any independent investigation of the situs and made no further

       attempts to corroborate the informant’s statements regarding any ongoing

       criminal activity.


[9]    Some four years prior to the interview, Detective Fortune had been driving past

       Cartwright’s home when he saw a “fog haze” coming from the home and

       smelled ammonia and ether. Id. at 35. Fortune told the prosecutor what he

       had observed, but the prosecutor declined to seek a search warrant at that time

       for lack of sufficient probable cause.


[10]   On March 7, 2013, Detective Fortune prepared a probable cause affidavit for a

       search warrant. He included the information set forth above, except that he did

       not state in the affidavit that the informant was incarcerated on an Illinois arrest

       warrant at the time of the interview. Detective Fortune described his extensive

       training and experience in investigating methamphetamine manufacturing and

       explained what, in his experience, one would likely find at a location where

       methamphetamine is being manufactured.




       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 4 of 21
[11]   Detective Fortune further stated that, in his opinion, the informant was credible

       because “given the information [the informant] has provided and given the fact

       that the description provided by [the informant] for the driving route to ‘Dave’s’

       home was known by your affiant to be an accurate description for traveling to

       Dave or David Cartwright’s home.” Id. at 41.


[12]   The court issued a search warrant for Cartwright’s property. Detective Fortune

       and other officers executed the warrant and found an active methamphetamine

       lab in Cartwright’s house. They also found digital scales, a glass pipe, and

       firearms. Officers found a burn pile on Cartwright’s property that contained

       stripped out battery casings. In addition, officers searched Cartwright’s garage

       and found numerous empty boxes that had contained pseudoephedrine-based

       pills. They also found a plastic bag that contained methamphetamine residue.

       Their search of the house yielded only $79 in currency.


[13]   The officers arrested Cartwright at his house and read him his Miranda rights.

       Next, the officers took him to jail. During the trip, he acknowledged that he

       was manufacturing methamphetamine.


[14]   At the jail, Cartwright signed a waiver of his Miranda rights and submitted to a

       recorded interview with the officers. He again acknowledged that he

       manufactured methamphetamine in his house. He also explained what stage of

       the process he was in at the time the police arrived. In addition, he described

       how he was using various items and chemicals in the manufacturing process.




       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 5 of 21
       Cartwright stated that he made and used methamphetamine to mitigate his

       back pain. He denied manufacturing methamphetamine to sell to others.


[15]   The State charged Cartwright with the offenses described above, plus

       possession of marijuana. Cartwright filed a motion to suppress all evidence

       obtained as a result of the search warrant. The court denied Cartwright’s

       motion after a hearing.


[16]   Cartwright waived his right to a jury trial. At the bench trial, he raised a

       continuing objection to the admission of evidence obtained from the execution

       of the search warrant. The State submitted testimony and photographs

       describing the methamphetamine lab in Cartwright’s house, his signed waiver

       of his Miranda rights, and the transcript of his interview, among other evidence.

       Next, the State dismissed the charge of possession of marijuana. The court

       determined that Cartwright was otherwise guilty as charged and sentenced him

       accordingly. This appeal followed.


                                     Discussion and Decision
[17]   Cartwright argues that the trial court erred in denying his motion to suppress.

       Because Cartwright appeals after a completed trial, the question of whether the

       trial court erred in denying the motion is no longer viable. Reinhart v. State, 930

       N.E.2d 42, 45 (Ind. Ct. App. 2010). Instead, the issue is more appropriately

       framed as whether the trial court abused its discretion when it admitted the

       evidence at trial. Id. When we review a trial court’s ruling on the admissibility

       of evidence resulting from an allegedly illegal search, we do not reweigh the

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 6 of 21
       evidence, and we consider conflicting evidence most favorable to the trial

       court’s ruling. Id.


[18]   Cartwright claims that all of the evidence resulting from the search of his house

       is inadmissible because there was no probable cause to issue the search warrant

       in the first place. The Fourth Amendment to the United States Constitution

       provides:

               The right of the people to be secure in their persons, houses, papers,
               and effects, against unreasonable searches and seizures, shall not be
               violated, and no Warrants shall issue, but upon probable cause,
               supported by Oath or affirmation, and particularly describing the place
               to be searched, and the persons or things to be seized.


[19]   The text of article I, section 11 of the Indiana Constitution contains nearly

       identical language. Indiana has codified these constitutional principles at

       Indiana Code section 35-33-5-2 (2005), as follows:

               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:



       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015         Page 7 of 21
               (A) the things as are to be searched for are there concealed; or


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


               (3) setting forth the facts then in knowledge of the affiant or
               information 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 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.


[20]   In deciding whether to issue a search warrant, the 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. Hayworth

       v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The duty of the reviewing

       court, which for these purposes includes both the trial court ruling on the

       motion to suppress and the appellate court, is to determine whether the

       magistrate had a substantial basis for concluding that probable cause existed.

       Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997). We review the trial court’s

       substantial basis determination de novo, but we afford significant deference to

       the magistrate’s determination. Brown v. State, 905 N.E.2d 439, 444 (Ind. Ct.

       App. 2009). We consider only the evidence presented to the issuing magistrate


       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015    Page 8 of 21
       and not additional justifications or facts presented after the search. Jaggers, 687

       N.E.2d at 182.


[21]   The parties’ dispute focuses almost entirely upon the credibility of the

       confidential informant because the crucial portion of Detective Fortune’s

       probable cause affidavit is based on the informant’s hearsay statements and

       lacks any independent and corroborating investigation by law enforcement. An

       affidavit based on hearsay must contain reliable information establishing the

       informant’s credibility and a factual basis for the hearsay statements or

       information that, in the totality of the circumstances, corroborates the hearsay.

       Ind. Code § 35-33-5-2(b). 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 (citing

       Illinois v. Gates, 462 U.S. 213, 227, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).


[22]   The trustworthiness of hearsay for purposes of proving probable cause can be

       established in a number of ways, including demonstrating: (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 shown; or (4) the informant predicts conduct or activities by the

       suspect that are not ordinarily easily predicted. Methene v. State, 720 N.E.2d

       384, 388 (Ind. Ct. App. 1999).


[23]   Cartwright argues that the probable cause affidavit failed to establish the

       informant’s credibility. We agree. The affidavit does not indicate that the


       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 9 of 21
       informant gave correct information in the past. At the time of the issuance of

       the search warrant, the affidavit states that the informant provided “drug

       information” to an Illinois police officer eight years prior to the interview, but

       there is no explanation of whether the information was correct, accurate, or had

       led to any arrests and convictions. At the suppression hearing, Detective

       Fortune later recalled that the informant’s information had resulted in an arrest

       in Illinois, but we do not consider supporting evidence that is offered after the

       warrant has been issued and acted upon. Jaggers, 687 N.E.2d at 182.


[24]   In addition, the affidavit does not include independent police investigation that

       adequately corroborates the informant’s statements. The police confirmed that

       the informant adequately described the location of Cartwright’s house and that

       there was an RV in Cartwright’s front yard. However, those facts are readily

       available to the general public. See Hayworth, 904 N.E.2d at 696 (independent

       investigation inadequate to establish informant’s credibility where investigation

       corroborated only publicly available facts).


[25]   The State notes that Detective Fortune had encountered sights and odors

       consistent with methamphetamine manufacturing at Cartwright’s property

       some four years prior to the interview with the informant and asserts that these

       observations corroborate the informant’s statements. However, our review of

       the record reveals that Detective Fortune’s request for a search warrant four

       years prior was rejected by the prosecutor for lack of probable cause. We

       further note that there is no evidence that he attempted to conduct an

       independent investigation to substantiate the allegations of odor that he

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 10 of 21
       observed. Thus, we find that his four-year-old observations are stale and do not

       corroborate the informant’s information. See State v. Haines, 774 N.E.2d 984,

       990 (Ind. Ct. App. 2002) (informant’s testimony that he purchased cocaine at

       defendant’s home two to six weeks prior to probable cause hearing was stale

       information that could not support a finding of probable cause), trans. denied.


[26]   Regarding the third factor, showing the basis for the informant’s knowledge, the

       affidavit establishes that the informant was generally familiar with the process

       of manufacturing methamphetamine. However, there is nothing in the affidavit

       to establish the informant’s knowledge of Cartwright’s activities other than the

       informant’s own statements. Finally, the informant did not predict conduct or

       activities by Cartwright that are not ordinarily easily predicted.


[27]   The State contends that the informant’s credibility was established because his

       admission of involvement in methamphetamine sales was a statement against

       penal interest. A declaration against penal interest can furnish sufficient basis

       for establishing the credibility of an informant, but the declaration must have

       tended to subject the declarant to criminal liability such that a reasonable

       person in the declarant’s position would not have made the statement unless

       believing it to be true. Newby v. State, 701 N.E.2d 593, 599 (Ind. Ct. App.

       1998).


[28]   Here, the informant told Detective Fortune, and the affidavit stated, that the

       informant had “purchased or obtained methamphetamine” from Cartwright, at

       Cartwright’s house, “within the last 3 or 4 months.” Appellant’s App. p. 31.


       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 11 of 21
       The informant had paid Cartwright for methamphetamine and had on another

       occasion given Cartwright boxes of pseudoephedrine-containing pills in

       exchange for methamphetamine.


[29]   The informant’s admission is not irrefutable evidence of criminal liability,

       particularly because he had not been charged with a crime and the admission

       was offered three to four months after the fact, without any independent

       evidence. Indeed, Detective Fortune declined to arrest the informant after the

       interview because he “didn’t have any evidence” of the informant’s alleged

       admitted crimes, thus indicating that the detective believed that the informant’s

       mere statements were insufficient to support a criminal charge. Tr. p. 33.

       Furthermore, in the portion of the affidavit where Detective Fortune explained

       why he believed the informant to be credible, Detective Fortune cited the

       informant’s description of the location of Cartwright’s home, not the

       informant’s admission of criminal activity, as of proof of reliability.


[30]   Under these circumstances, a reasonable person in the informant’s position

       could have concluded that, without any independent investigation or

       corroborating evidence from law enforcement, he or she was unlikely to be

       subjected to criminal liability for admitting to buying methamphetamine in the

       past. Argumentative and to the contrary, a person in the informant’s position

       could conclude that assisting in an Indiana methamphetamine investigation

       might result in favorable treatment in the pending Illinois criminal matter. We

       cannot conclude that the informant’s statements were sufficiently against his

       penal interests to establish his credibility.

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 12 of 21
[31]   In the absence of proof of the informant’s credibility or corroboration under the

       totality of the circumstances, the informant’s hearsay statements were

       insufficient to establish probable cause, and the trial court should not have

       issued the search warrant. See Hayworth, 904 N.E.2d at 697 (affidavit did not

       establish probable cause for a search warrant where informant’s claims were

       uncorroborated).


[32]   Nevertheless, lack of probable cause does not automatically require the

       suppression of evidence obtained during a search. Id. Indiana law provides:

               (a) In a prosecution for a crime or a proceeding to enforce an
               ordinance or a statute defining an infraction, the court may not grant a
               motion to exclude evidence on the grounds that the search or seizure
               by which the evidence was obtained was unlawful if the evidence was
               obtained by a law enforcement officer in good faith.


               (b) For purposes of this section, evidence is obtained by a law
               enforcement officer in good faith if:


               (1) it is obtained pursuant to:


               (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

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015        Page 13 of 21
               established by rules adopted by the law enforcement training board
               under IC 5-2-1-9.


       Ind. Code § 35-37-4-5 (1983).


[33]   Courts applying the statutory good faith exception have concluded that the

       good faith exception does not apply where:

               (1) the warrant is based on false information knowingly or recklessly
               supplied; (2) the warrant is facially deficient; (3) the issuing magistrate
               is not detached and neutral; or (4) the affidavit or sworn testimony
               upon which probable cause rests is so lacking in indicia of probable
               cause as to render an official belief in the existence of the warrant
               unreasonable.


       Brown, 905 N.E.2d at 445 (quoting Hirshey v. State, 852 N.E.2d 1008, 1013-14

       (Ind. Ct. App. 2006), trans. denied). An officer’s reliance on the magistrate’s

       probable cause determination must be objectively reasonable. Id.


[34]   In this case, there is no claim that the warrant was facially deficient or that the

       issuing magistrate was not detached and neutral. Cartwright claims Detective

       Fortune omitted material information from the affidavit, engaging in

       “deliberate, reckless, or grossly negligent conduct.” Appellant’s Br. p. 18.

       Specifically, Detective Fortune did not state in the affidavit that the informant

       was incarcerated in the Posey County Jail on an Illinois arrest warrant.

       Cartwright contends that this omission amounted to a misrepresentation that

       may have affected the reviewing magistrate’s consideration of the informant’s

       credibility.



       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015      Page 14 of 21
[35]   Detective Fortune testified at the suppression hearing that he withheld the fact

       of the informant’s incarceration not out of any intent to mislead, but rather out

       of concern that the information would reveal the informant’s identity and place

       him in danger. In any event, we conclude that the good faith exception is

       inapplicable here because Detective Fortune’s affidavit is so lacking in indicia of

       probable cause as to render an official belief in the existence of the warrant

       unreasonable. The informant gave Detective Fortune information that was at

       least three to four months old. The officers corroborated only facts that were

       readily available to the general public, i.e., observing an RV parked at the

       home. They did not attempt to confirm the informant’s claim of an ongoing

       methamphetamine dealing operation by placing surveillance on Cartwright’s

       property. In addition, Detective Fortune also relied on his stale four-year-old

       prior observation of Cartwright’s home, which had been rebuffed by the

       prosecutor for lack of probable cause. The officers’ reliance on a warrant issued

       on essentially uncorroborated hearsay from an anonymous informant was

       objectively unreasonable. See Jaggers, 687 N.E.2d at 186.


[36]   In the absence of probable cause justifying a search warrant, the officers’ search

       of Cartwright’s home violated his federal and state constitutional protections

       against unreasonable search and seizure. Consequently, the trial court abused

       its discretion in admitting evidence obtained as a result of the search. See id.; see

       also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (search warrant

       unsupported by probable cause where police did not independently corroborate

       informant’s statements, so the subsequent search violated defendant’s federal


       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 15 of 21
       and state constitutional rights and the evidence was inadmissible). The

       erroneously admitted evidence includes Cartwright’s incriminating statements

       in the police car and the transcript of his post-arrest questioning at the jail,

       because the statements were the fruit of his arrest, and being informed of his

       Miranda rights prior to confessing in the police car and at the jail did not purge

       the taint of the unconstitutional search. See, e.g. Clark v. State, 994 N.E.2d 252,

       271 (Ind. 2013) (defendant’s confession to possession of marijuana was not

       admissible where it was not an act of free will and did not purge the taint of

       unlawful detention).


                                                 Conclusion
[37]   We reverse the trial court’s judgment and remand for further proceedings

       consistent with this opinion.


[38]   Reversed and remanded.


[39]   Mathias, J., concurs.


[40]   Baker, J., dissents.




       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 16 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       David B. Cartwright,                                      Court of Appeals Case No.
                                                                 65A01-1404-CR-170
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, dissenting.

[41]   I respectfully dissent. I agree with the majority’s conclusion that the probable

       cause affidavit failed to establish the CI’s credibility and, consequently, that

       there was a lack of probable cause. I part ways with the majority, however, in

       the application of the good faith exception.


[42]   The good faith exception to the exclusionary rule was originally announced in

       United States v. Leon, 468 U.S. 897 (1984). As explained by our Supreme Court,

               Leon held that where police officers rely in objective good faith on a
               warrant later found to be defective, so that suppression would not
               further the exclusionary rule’s objective of deterring police misconduct,
               the Fourth Amendment does not require that the evidence be
               excluded. However, the Supreme Court cautioned in Leon that certain

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015           Page 17 of 21
               police conduct would not qualify for the exception, including where
               the warrant was based on an affidavit “so lacking in indicia of
               probable cause as to render official belief in its existence entirely
               unreasonable.”


       Figert v. State, 686 N.E.2d 827, 831 (Ind. 1997) (quoting Leon, 468 U.S. at 923).


[43]   In this case, Detective Fortune’s affidavit included the following attestations:


            Detective Fortune spoke with a CI, who reported that a person named
             “Dave,” who lived in a farmhouse in northern Posey County, was
             involved in the manufacture of methamphetamine.
            The CI reported that s/he had purchased methamphetamine from
             “Dave” within the last three or four months.
            The CI reported that s/he had witnessed “Dave” trading
             methamphetamine to other persons in exchange for boxes of
             pseudoephedrine pills, money, and a muzzle loader firearm.
            The CI reported “Dave’s” farmhouse contained assault rifles, shotguns,
             and handguns.
            The CI reported that s/he personally observed “Dave” manufacture
             methamphetamine in the barn and farmhouse.
            The CI also reported that “Dave” kept anhydrous ammonia, a common
             ingredient used to manufacture methamphetamine, on his property.
            The CI confirmed to Detective Fortune that s/he had experience in the
             illegal manufacture of methamphetamine and was familiar enough with
             the process to be able to identify it.
            The CI stated that s/he had provided useful information regarding drug
             activity to Officer Greg Hannish in southern Illinois approximately eight
             years ago. Detective Fortune contacted Officer Hannish, who confirmed
             the CI’s statement.
            The CI drew a general map of the area leading to “Dave’s” home and a
             map of the layout of the property itself.
            Detective Fortune was familiar with Cartwright, who lives in a
             farmhouse in northern Posey County. The location of Cartwright’s
             residence is consistent with the map drawn by the CI. The layout of


       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015     Page 18 of 21
             Cartwright’s property, including building locations, is consistent with the
             map drawn by the CI.
            Approximately four years earlier, Detective Fortune was driving in the
             area of Cartwright’s residence when he observed a “fog haze” emanating
             from the home and could smell anhydrous ammonia. At that time, the
             prosecutor declined to seek a search warrant based on that information.

       Appellant’s App. p. 22-42. I agree that there was insufficient investigation done

       to establish the credibility of the CI. I also agree that each of these alleged facts,

       taken alone, does not establish probable cause. But I believe that the totality of

       these allegations easily exceed the threshold described by the United States

       Supreme Court in Leon. In other words, I do not believe that this affidavit is

       “so lacking in indicia of probable cause as to render official belief in its

       existence entirely unreasonable.” Leon, 468 U.S. at 923.2


[44]   This conclusion does not end the inquiry, however, inasmuch as Detective

       Fortune was both the affiant and one of the police officials who executed the

       search warrant. Under certain circumstances, this overlap can render the good

       faith exception inapplicable. In Figert, our Supreme Court considered precisely

       this issue: “[b]ecause the same officer here filed the probable cause affidavit

       and participated in the execution of the warrant based on the affidavit, we must

       decide whether the officer’s reliance on the warrant was entirely unreasonable




       2
         The fact that Detective Cartwright omitted the information that the CI was currently incarcerated in the
       Posey County Jail does not change my analysis. The detective was merely withholding that information in
       an attempt to protect the identity and safety of the CI, which seems entirely prudent given the threatening
       statements made by Cartwright in the CI’s presence.

       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015                     Page 19 of 21
       notwithstanding the magistrate’s decision to issue the warrant.” 686 N.E.2d at

       831-32.


[45]   The Figert Court noted that “[m]ost Indiana appellate decisions upholding the

       admission of evidence under the good faith exception involved reliance on

       hearsay whose credibility was later found to be inadequately established.” Id. at

       832. In Figert, however, “the officer obtained the warrant primarily based on

       his own observations and firsthand knowledge.” Id. Under those

       circumstances, “the officer’s own opinion . . . cannot be relied on to authorize a

       search not supported by the facts.” Id. at 833. Consequently, the Figert Court

       found that the officer’s reliance was not objectively reasonable under Leon, and

       the good faith exception was inapplicable.


[46]   Here, as opposed to Figert, Detective Fortune was relying primarily on

       “technically flawed hearsay . . . that in hindsight might make reliance on the

       warrant objectively reasonable.” Id. at 832. The vast majority of allegations

       supporting the request for a search warrant rested solely on the CI. And while I

       ultimately agree that the credibility of the CI was insufficiently established such

       that the hearsay amounted to probable cause, Detective Fortune’s reliance on

       the CI’s allegations and the warrant itself were objectively reasonable. As a

       result, the fact that Detective Fortune both signed the affidavit and helped to

       execute the warrant do not render the good faith exception inapplicable. See

       United States v. Kinison, 710 F.3d 678, 686-87 (6th Cir. 2013) (holding that where

       the government was not relying on subjective knowledge of the affiant, the fact



       Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 20 of 21
that affiant also helped to execute the warrant does not prevent application of

the good faith exception).


Because I believe that this warrant was executed in good faith, notwithstanding

the lack of probable cause, I would affirm the trial court’s admission of the

evidence seized in the execution of that warrant.




Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015   Page 21 of 21
