      MEMORANDUM DECISION                                                                FILED
                                                                                   Sep 27 2017, 10:37 am
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                         CLERK
      this Memorandum Decision shall not be                                          Indiana Supreme Court
                                                                                        Court of Appeals
      regarded as precedent or cited before any                                           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
      Mark A. Thoma                                            Curtis T. Hill, Jr.
      Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
      Fort Wayne, Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony J. Cooper,                                       September 27, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1702-CR-410
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Wendy W. Davis,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               02D06-1606-F2-13



      Mathias, Judge


[1]   After a jury trial in Allen Superior Court, Anthony J. Cooper (“Cooper”) was

      convicted of one count of Level 2 felony dealing in cocaine or narcotic drug,


      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017         Page 1 of 12
      one count of Level 6 felony maintaining a public nuisance, one count of Class

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

      misdemeanor possession of marijuana. The issue on appeal is whether the trial

      court abused its discretion by admitting evidence obtained as the result of the

      execution of a search warrant.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On May 11, 2016, Fort Wayne Police Detective George Nicklow (“Detective

      Nicklow”) received information from a confidential informant (“CI”) that drugs

      and weapons were located inside a residence at 1808 Warren Street. Detective

      Nicklow had known and worked with this particular CI on several previous

      occasions which had led to three or four felony arrests.


[4]   After receiving the tip, Detective Nicklow reviewed the narcotics tip line and

      discovered a concerned citizen’s call from March 23, 2016, relating to the

      residence in question. The tip indicated that at 1808 Warren Street there was:

      (1) constant activity at the home from people who did not live there, (2) brief

      stays happening at all hours of the day and night, and (3) the presence of a gray

      BMW SUV that the citizen believed was involved with drugs. Detective

      Nicklow later spoke with the concerned citizen about the substance of the call

      and verified that the same reported conduct was ongoing.


[5]   In May 2016, Detective Nicklow and other officers began surveillance on 1808

      Warren Street. The officers noticed that the gray BMW SUV mentioned by the
      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017   Page 2 of 12
      concerned citizen’s call was often parked in front of or across from the

      residence. By running a BMV check, Detective Nicklow verified that the vehicle

      was owned by Cooper. During this time, Detective Nicklow also determined

      that Phillip Tate (“Tate”) listed 1808 Warren Street as his address on his

      driver’s license. Tate and Cooper were brothers, and during the period of

      surveillance and investigation, Tate was incarcerated.


[6]   On May 31, 2016, Detective Nicklow and other officers set up a 24-hour

      recording device in the 1800 block of Warren Street. Over the next three days

      Detective Nicklow noticed a specific pattern develop at the residence.


[7]   Cooper’s BMW would drive up and park either in front of or across from 1808

      Warren Street. Cooper would exit the vehicle and enter the residence. Soon

      after, another person or persons would enter the house and exit approximately

      one to three minutes later. Cooper would then leave the house, get back into his

      BMW, and drive away. The exact same pattern repeated itself several times

      each day, usually during the afternoon.


[8]   On June 2, 2016, Fort Wayne Police Detective Jeffrey Ripley (“Detective

      Ripley”) attempted a trash pull at the residence. Upon exiting his vehicle,

      Detective Ripley noticed a faint odor of marijuana coming directly from 1808




      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017   Page 3 of 12
       Warren Street. As Detective Ripley walked closer to the house, the odor

       became more pronounced.1


[9]    Based on the information from the CI, the tip from and discussion with the

       concerned citizen, the surveillance and observations of the residence, and the

       statements from Ripley, Detective Nicklow applied for and obtained a search

       warrant for the residence on June 3, 2016.


[10]   During execution of the search warrant, officers discovered: five firearms (two

       of which were stolen), over 60 grams of cocaine, marijuana, alprazolam, scales,

       rubber gloves, baking powder, a cutting agent, and mail addressed to Cooper. 2


[11]   The State charged Cooper with four counts: Count I, Level 2 felony dealing in

       cocaine or narcotic drug; Count II, Level 6 felony maintaining a common

       nuisance; Count III, Class A misdemeanor possession of a controlled substance;

       and Count IV, Class B misdemeanor possession of marijuana.




       1
         In a deposition a few weeks later, Detective Ripley stated that he was not sure if the odor came from the
       residence or the SUV parked nearby. However, during Cooper’s motion to suppress hearing, Detective
       Ripley explained the discrepancy. He clarified that he was 99% sure that the smell was emanating from the
       home, but because of the 1% chance it could have been coming from the vehicle, he did not think it was fair
       to say with absolute certainty that the scent was coming from 1808 Warren Street.
       2
        At the same time, a second team of officers conducted a traffic stop on Cooper because he was driving with
       a suspended license. During the stop, officers discovered three separate bundles of cash in Cooper’s pockets
       totaling $1,868.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017        Page 4 of 12
[12]   Cooper filed a motion to suppress the evidence discovered during the execution

       of the search warrant. On December 16, 2016, the trial court held a hearing on

       the motion. The trial court denied Cooper’s motion to suppress


[13]   A two-day jury trial commenced on January 11, 2017. Throughout trial,

       Cooper raised a continuing objection to all evidence obtained as a result of the

       search warrant. The jury found Cooper guilty on all four counts. On February

       9, 2017, the trial court sentenced Cooper to an aggregate sentence of twenty-six

       and one-half years. Cooper now appeals.


                                         Discussion and Decision
[14]   Cooper contends that the evidence the State obtained from the search of 1808

       Warren Street is inadmissible. Specifically, he argues that the search warrant

       lacked a substantial basis, and therefore, the search of the residence was

       unlawful under the Fourth Amendment.3


[15]   Cooper frames the issue as whether the court erred by denying his motion to

       suppress. However, because he seeks review after a conviction, the issue is more

       appropriately framed as whether the trial court properly admitted the evidence

       at trial. Fry v. State, 25 N.E.3d 237, 243 (Ind. Ct. App. 2015), trans. denied. A




       3
        Cooper mentions Article 1, Section 11 of the Indiana Constitution, but he fails to provide an independent
       analysis. Failure to make a cogent argument under Article 1, Section 11 constitutes waiver of the issue on
       appeal. See Abel v. State, 773 N.E.2d 276, 278 n. 1 (Ind. 2002) (concluding state constitutional claim waived
       where defendant presented no authority or independent analysis supporting separate standard under state
       constitution); West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (citations omitted); Ind. Appellate Rule 46(A)(8).
       Therefore, we analyze Cooper’s argument under the Fourth Amendment only.

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       trial court has broad discretion in ruling on the admissibility of evidence and we

       will only disturb its rulings where it is shown that the court abused its

       discretion. Id. at 243–44. When reviewing a trial court’s ruling on the

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

       reweigh the evidence, and we consider conflicting evidence most favorable to

       trial court’s ruling. Cartwright v. State, 26 N.E.3d 663, 667 (Ind. Ct. App. 2015),

       trans. denied.

[16]   A valid search warrant must comply with the Fourth Amendment prohibition

       against unreasonable searches and seizures and statutory law.4 The Fourth

       Amendment requires probable cause for the issuance of a warrant. Rader v.

       State, 932 N.E.2d 755, 758 (Ind. Ct. App. 2010), trans. denied. Probable cause is

       a fluid concept based on the facts of each individual case and it requires only a

       probability of criminal activity, and not a prima facie showing. Fry, 25 N.E.3d at

       244. In determining whether an affidavit provided probable cause, any doubtful

       cases should be resolved in favor of upholding the warrant. Bradley v. State, 4

       N.E.3d 831, 840 (Ind. Ct. App. 2014), trans. denied.


[17]   Our duty on review is to determine whether the issuing magistrate had a

       substantial basis to issue the warrant. Fry, 25 N.E.3d at 244. The magistrate’s

       task is to make a practical, common-sense decision whether, given all the

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



       4
        See Ind. Code § 35-33-5-2 (governs the information that must be included in an affidavit for a search
       warrant).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017          Page 6 of 12
       contraband or evidence of a crime will be found in a particular place. Bradley, 4

       N.E.3d at 840 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also I.C. §

       35-33-5-2(a); Walker v. State, 829 N.E.2d 591, 594 (Ind. Ct. App. 2005) (stating

       that “Probable cause 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.”), trans. denied. Although we review whether

       the issuing magistrate had a substantial basis de novo, we give significant

       deference to the magistrate’s decision. Rader, 932 N.E.2d at 759. We consider

       only the evidence presented to the issuing magistrate, and not any post hoc

       justifications for the search. Id.


[18]   Here, the question is whether probable cause existed to support the search

       warrant issued for the residence at 1808 Warren Street.5 The search warrant

       affidavit contains the following information from Detective Nicklow:


           1. Detective Nicklow was contacted on May 11, 2016, by a CI about a
              location where cocaine, heroin, and marijuana were allegedly being sold,
              and where subjects inside had guns.
           2. The CI identified the location as 1808 Warren St.
           3. The CI had provided “proven, reliable information in the past that has
              led to several felony arrests.”




       5
         At the hearing on the motion to suppress, the prosecutor argued that Cooper lacked standing to challenge
       the search and seizure. Tr. Vol. II, pp. 35–36. This argument has merit based on the Supreme Court’s
       decision in Minnesota v. Carter, 525 U.S. 83 (1998). In Carter, the Court held that “one who is merely present
       with consent of the householder may not” claim the protection of the Fourth Amendment. Id. at 90. Cooper
       did not live at 1808 Warren Street, and just as the defendants in Carter, he was “essentially present for a
       business transaction and [] only in the home for a matter of hours.” Id. However, the State did not raise this
       issue on appeal, and it is therefore waived. App. R. 46(A)(8)

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017           Page 7 of 12
           4. Detective Nicklow checked prior anonymous tips called into the Fort
              Wayne Police Department and was advised a concerned citizen tip had
              been called in on March 23, 2016, concerning 1808 Warren Street.
           5. The concerned citizen stated that a large amount of traffic was going in
              and out of the residence with subjects staying for small periods of time,
              and a gray BMW was associated with the house.
           6. Detective Nicklow observed the gray BMW SUV at the residence when
              conducting surveillance and he verified through BMV records that the
              vehicle was registered to Cooper.
           7. Six particular examples of “quick stops that are consistent with street
              level narcotics dealing” are described between May 31, 2016, and June 2,
              2016.
           8. On June 2, 2016, Detective Ripley, who was conducting surveillance on
              the residence, observed “an overwhelming odor of raw marijuana
              coming from 1808 Warren St.”

       Mot. Supp. Ex. Vol., Defendant’s Ex. A.


[19]   Prior to requesting the search warrant, Detective Nicklow spoke with the

       concerned citizen and was able to learn that the activity leading to the original

       call was still continuing at 1808 Warren Street. Further, Detective Nicklow was

       able to corroborate the concerned citizen’s statements through investigation and

       surveillance.

[20]   Cooper cites to our decision in Newby v. State, 701 N.E.2d 593 (Ind. Ct. App.

       1998), to argue that the tip from the CI and the concerned citizen are not

       “useful or helpful” because credibility was not established. Appellant’s Br. at

       21. In that case, detectives received information that a cocaine buy was going to

       take place in a grocery store lot. Newby, 701 N.E.2d at 596. During the

       investigation, law enforcement officers obtained consent to search Steve

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017   Page 8 of 12
       Calloway’s (“Calloway”) car and found drugs in the console. Id. Sergeant

       Wilkerson asked Calloway from whom he had purchased the drugs. Id.

       Although initially reluctant, after cajoling by the detectives, Calloway identified

       Newby as his supplier. Id.


[21]   The next morning detectives monitored a call between Calloway and Newby;

       however, there was no mention of drugs or money. Id. Later that day, State

       Trooper Guinn drove by Newby’s residence to verify Calloway’s description of

       it and its location. Id. Thereafter, Trooper Guinn signed a search warrant

       affidavit for Newby’s residence, and it was issued. Id. On interlocutory appeal,

       we reversed Newby’s denial of his motion to suppress. Id. at 604.


[22]   The primary issue with the warrant in Newby was that Calloway’s credibility

       was not established by the facts in the affidavit for the search warrant. Id. at

       601. We pointed out that “neither Sergeant Wilkerson nor Trooper Guinn

       corroborated facts relayed to them by Calloway that connected Newby to illegal

       activity.” Id. We distinguished Newby from our supreme court’s decision in

       Houser v. State and explained, “in Houser . . . the police officers who sought the

       search warrant conducted an independent investigation of the crime scene and

       observed facts relayed to them by the informant.” Id. at 600 (citing Houser v.

       State, 678 N.E.2d 95, 100 (Ind. 1997)).


[23]   Similar to Houser, and unlike Newby, the affidavit here outlined sufficient facts

       to support issuing the warrant. After Detective Nicklow received the tip from

       the CI on May 11, 2016, he corroborated the CI’s information in several ways.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017   Page 9 of 12
       First, Detective Nicklow checked the concerned tip line and identified a call

       pertaining to 1808 Warren Street. Although the call was placed on March 23,

       2016, Detective Nicklow met with the concerned citizen, and established that

       the behavior at the residence which originally led to the call was ongoing. As

       our courts have consistently noted, “the credibility of a concerned citizen is, as

       a general rule, inherently more credible than that of a [] CI.” Scott v. State, 883

       N.E.2d 147, 155 (Ind. Ct. App. 2008); see also State v. Renzulli, 958 N.E.2d 1143,

       1147 (Ind. 2011); Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013);

       Billingsley v. State, 980 N.E.2d 402, 409–10 (Ind. Ct. App. 2012), trans. denied.


[24]   Second, Detective Nicklow conducted an investigation which determined that

       the SUV described by the concerned citizen was owned by Cooper. Also,

       surveillance was done on 1808 Warren Street where the patterns described by

       both the CI and the concerned citizen were corroborated. See State v. Fridy, 842

       N.E.2d 835, 840 (Ind. Ct. App. 2006) (holding that an affidavit for a search

       warrant is sufficient when it contains information that establishes that the

       totality of the circumstances corroborates statements from a confidential

       informant).

[25]   Third, Detective Ripley noticed a strong smell of marijuana coming from the

       residence when he was attempting to conduct a trash pull within ten feet of the

       front door. He testified, “I was facing the house, took a deep breath in through

       my nose, I could smell what I know from training and experience as raw

       marijuana.” Tr. Vol. II, p. 25; see Redden v. State, 850 N.E.2d 451, 462 (Ind. Ct.

       App. 2006) (finding that a detective’s detection of a chemical odor combined

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017   Page 10 of 12
       with other observations provided a substantial basis for the search warrant of

       the defendant’s home), trans. denied.


[26]   The CI’s information, the concerned citizen’s information, and the independent

       police investigation corroborating both the CI and concerned citizen is more

       than enough to establish that probable cause existed for issuing the warrant. See

       Scott, 883 N.E.2d at 155 (Ind. Ct. App. 2008) (holding a warrant was supported

       by probable cause because the CI’s information was corroborated by a

       confidential informant as well as additional police investigation.); see also

       Cheever-Ortiz v. State, 825 N.E.2d 867, 873 (Ind. Ct. App. 2005) (holding an

       anonymous tip along with corroboration by independent police work was

       enough to support a search warrant being issued for a home). Therefore, the

       trial court did not abuse its discretion when it admitted evidence over Cooper’s

       objection at trial.6




       6
         Cooper cites five cases not previously mentioned after asserting, “suppression in this case is appropriate
       where no reasonably prudent law enforcement officer could have harbored an objectively reasonable belief in
       the existence of probable cause.” Appellant’s Br. at 22. However, each of the five cases are distinguished
       from the case before us. In Doss v. State, 649 N.E.2d 1045, 1047–49 (Ind. Ct. App. 1995), the trial court found
       the warrant was defective on its face and this court held that the good faith exception did not apply in part
       because the officer did nothing to corroborate the CI’s statements. In Hirshey v. State, 852 N.E.2d 1008, 1013
       (Ind. Ct. App. 2006), trans. denied, the only basis for reliability of the CI was that his statements were against
       penal interest, however, we held this was not the case and therefore the warrant lacked probable cause. In
       Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997), the information came from an anonymous tip, whose
       credibility was entirely unknown. Also, the officer did nothing more than corroborate the assertion that the
       defendant appeared to live where the informant told the officer, and that marijuana was being grown on two
       plots of land miles from the defendant’s residence. Id. Rice v. State, 916 N.E.2d 296, 303-04 (Ind. Ct. App.
       2009), trans. denied, was decided on Indiana Constitutional grounds. Further, the trial court determined that
       no probable cause existed to support an underlying arrest warrant because there was no connection between
       the defendant and the crime for which she was accused. Id. Finally, in Everroad v. State, 590 N.E.2d 567, 571
       (Ind. 1992), reh’g denied, all factual allegations in the probable cause affidavit were based on hearsay and there
       was no evidence of a credible source or any corroboration substantiating the hearsay statements.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-410 | September 27, 2017            Page 11 of 12
                                                 Conclusion

[27]   For all of these reasons, we conclude that the trial court acted within its

       discretion when it admitted evidence that the officers discovered while

       executing the search warrant on 1808 Warren Street.


[28]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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