                                                                          FILED
                                                                     Jul 31 2017, 5:45 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brian J. Johnson                                           Curtis T. Hill, Jr.
Danville, Indiana                                          Indiana Attorney General
                                                           Jodi Kathryn Stein
                                                           Laura R. Anderson
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Brandon McGrath,                                           July 31, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1610-CR-2270
        v.                                                 Appeal from the
                                                           Marion Superior Court.
State of Indiana,
                                                           The Honorable
Appellee-Plaintiff.                                        Jose D. Salinas, Judge.

                                                           Trial Court Cause No.
                                                           49G14-1404-FD-21182



Kirsch, Judge




Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017                    Page 1 of 31
                                       Statement of the Case                       1




[1]   After law enforcement officers followed up on a tip from CrimeStoppers, they

      requested a warrant to use thermal imaging technology to gain additional

      evidence to confirm whether an active indoor marijuana grow operation existed

      at the location designated in the tip. The warrant was granted and the results of

      the imaging showed higher than normal heat signatures emanating from an

      upstairs area of the house at that address. Officers requested a search warrant

      for the premises based on evidence presented in both search warrant

      applications.


                                                        Issue
[2]   The dispositive question here is whether the evidence presented with respect to

      the first search warrant application sufficiently established probable cause to

      support further investigation. We reverse and remand.


                                Facts and Procedural History
[3]   At McGrath’s bench trial, the parties stipulated that in April 2014, an

      anonymous call to CrimeStoppers alerted IMPD of a possible active marijuana

      grow operation located at 5926 North Crittenden Avenue in Indianapolis. The




      1
       We commend counsel for their willingness to present their arguments on appeal at oral argument held at
      Trine University, in Angola, Indiana, before this year’s group of attendees at Hoosier Boys State. Counsels’
      capable written and oral advocacy has greatly aided this court in the disposition of the appeal. We also
      extend our gratitude to those at Trine University and all those, including the American Legion members,
      who support Hoosier Boys State, for their hospitality.

      Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017                       Page 2 of 31
      tipster identified the house by the street address, its color, and the first names of

      the occupants, Brandon and Kelsey. The tipster added that an odor of

      marijuana often emanated from the house and a bright light was visible from a

      window nightly.


[4]   Detective Sergeant Kerry Buckner of IMPD, following up on the tip, conducted

      surveillance on the house during daylight hours, verifying the address and color

      of the house provided by the tipster. The physical marking of the address was

      only observable near the house, not from the street. He also noted that though

      the home had a central air conditioning system, there were individual air

      conditioning units in both upstairs windows and several of the windows had a

      dark covering—consistent with an indoor marijuana grow operation, a

      conclusion reached based on Detective Buckner’s training and experience.


[5]   Later that evening, Detective Buckner continued his surveillance and observed

      a light of an “apparent difference” emanating from an upstairs window. Ex.

      Vol. p. 8. Based on the officer’s training and experience, he concluded that the

      high intensity glow of the light was consistent with the type of lights used for

      indoor grow operations. The officer had also confirmed through police

      databases, which were not accessible by the public, that the occupants of the

      house were a male named Brandon McGrath and a female named Kelsey

      Bigelow. Bigelow was listed as the owner of the house. BMV records, which

      were also restricted from public access, indicated that 5926 North Crittenden

      Avenue was the listed address on both McGrath’s and Bigelow’s driver’s



      Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 3 of 31
      licenses. Detective Buckner did not detect the odor of marijuana upon his

      evening inspection of the residence.


[6]   Next, Detective Buckner applied for a search warrant to use a forward looking

      infrared, or FLIR, which is a thermal imaging detection system mounted to an
                  2
      aircraft to detect the presence of a heat signature consistent with an active

      indoor marijuana grow operation. His application read as follows:


                 I am a police officer with the Indianapolis Metropolitan Police
                 Department (IMPD). I have been a police officer in
                 Indianapolis/Marion County since 1991. I am a “law
                 enforcement officer” as that term is defined in I.C. 35-31.5-2-185.
                 I am currently the supervisor of the Violent Crimes Unit of the
                 Indianapolis Metropolitan Police Department and have been so
                 assigned since 2007. In connection with my official duties, I am
                 involved in investigations relating to violations of the Indiana
                 controlled substances laws.
                 I have received training relating to enforcement of the Indiana
                 controlled substances laws, including the following:
                 1.       My initial training at the Indiana Law Enforcement
                          Academy in 1991. I have satisfied the minimum basic
                          training requirements established by rules adopted by the
                          law enforcement training board under I.C. 5-2-1-9 and
                          described in I.C. 35-37-4-5.
                 2.       Basic Detective School, through the Marion County
                          Sheriffs[sic] Department in 1997;
                 3.       Hotel/Motel Interdiction/Hidden compartment training
                          in March of 2002;




      2
          The record is unclear whether the “aircraft” was a drone, helicopter, or plane.


      Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017            Page 4 of 31
        4.       Highway Interdiction training through the U.S.
                 Department of Justice Drug Enforcement Administration
                 July 1998;
        5.       Drug Enforcement Administration basic cannabis
                 Investigations course June 1997;
        6.       Undercover Narcotics Schools and Narcotics Detection
                 Schools hosted by Indiana State Police, IDEA, FBI, and
                 DEA
        7.       Monthly operational and legal update training by the
                 Marion County Prosecutor’s Office.
        8.       Yearly in-service training.
        Based upon my training and experience, I am familiar with the
        methods employed by individuals engaged in the trafficking of
        controlled substances including the following:
1.    Detective Sergeant Kerry Buckner, swears or affirms that he believes
and has good cause to believe that a controlled substance, to wit: Marijuana,
Cannabis, the possession of which is unlawful, is being unlawfully
manufactured and cultivated at an indoor grow operation, located at 5926
Crittenden Ave, Indianapolis, Marion County, Indiana.

        Your affiant is seeing a search warrant to use a thermal imaging
        device on and at the residence located at 5926 Crittenden Ave,
        Indianapolis, Marion County, Indiana.
        The use of a thermal imaging device will assist your Affiant in
developing more facts in this investigation of the offense under the Uniform
Controlled Substances Act, in violation of Indiana Code 35-48-4-10
manufacturing or cultivation of marijuana, and to indicate the presence of
artificial lighting for the cultivations[sic] of marijuana. Based on my training,
experience and participation in numerous indoor grow investigations, and
based on my experience from other experienced narcotics officers, including
those officers that trained in the use of thermal image technology, with whom
I’m associated, your Affiant knows that:

        A) With respect to indoor marijuana cultivation and propagation
        operations, suspects routinely utilize the following items and

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 5 of 31
        methods, among others, in their attempts to avoid detection from
        the law enforcement authorities:
        1.) Blackened out or covered windows, doors and other visibly
        detectable areas to avoid outsiders from identifying any portion
        of the grow operation.
        2.) Guard dogs are used to protect their growing operations from
        theft and to alert them to subjects, including law enforcement,
        who are on or are approaching their property.
        3.) Fixed, movable, or other type of venting systems, usually
        located upon high areas of buildings to vent heat, fumes and
        odors escaping the cultivation structure.
        4.) Fictitious names and/or social security numbers on utility
        records.
        5.) Theft of electrical power by alteration of electrical systems on
        the property by bypassing the utility meter so that excess usage
        caused by indoor grow lighting equipment does not register with
        the utility company.
        6.) Use of portable top large scale combustible fuel generators to
        develop power for indoor lighting equipment to avoid registering
        high bills with the local utility company.
        7.) The use of deodorizers and masking agent systems to mask
        the odor of growing marijuana that is emitted from the venting
        system.
        8.) Remote locations and outbuildings which are detached from
        the main residence to prevent discovery and aid in concealment.
        This can also include room built underground to house the
        growing operation.
        9.) The use of high intensity grow lights that produce large
        amounts of heat in enclosed areas and use large amounts of
        electricity.
        B.) That marijuana Cultivation is a complex enterprise that:
        1.) Takes at least 7-10 days to plant from clone to vegetative
        stage, can take 3-8 weeks to take plant from vegetative to

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017     Page 6 of 31
        flowering stage, and takes at least 3-6 weeks to take the plant
        from flowering stage to harvest.
        2.) Takes approximately 3 gallons of potting soil per plant and
        that the soil is used only once and then discarded.
        3.) If hydroponically grown, no soil is required. This method
        would require the roots to be suspended in medium to large
        quantities of water and water soluble fertilizer.
        4.) Requires a high heat, high humidity or tropical type
        environment to thrive.
        5.) Uses a high intensity halide or high pressure sodium lights
        that require large amounts of power and emit a very bright white
        light and high amount of heat. The heat from these halide lights
        often causes visible differences in the moisture collection on the
        roof of the structure in which the grow operation is located.
        6.) Causes some of the heat from the environment to dissipate
        into other objects and the structure in which the growing
        operation is being conducted. As a result of this, the temperature
        on the outside of the walls of the portions of the property
        containing the grow operation are substantially higher that [sic]
        the outside of the walls of the portion of the structure used for
        normal living or storage space.
        7.) Needs to be vented to allow some heat to escape and fresh air
        to enter. This vent or the high heat dissipating through the
        structure can be detected using thermal imaging. Thermal
        imaging is a technique of using non-contact, non-intrusive, non-
        destructive scanning equipment that detects invisible infrared
        radiated heat at surface levels and converts this energy into
        visible light.
        8.) Are commonly divided into two or more rooms for different
        stages of growing operation, i.e. growing rooms, drying rooms,
        supply rooms.
        9.) The odor associated with growing marijuana has been
        compared to an odor which is a “skunk” or a “pungent sweet
        musty” like smell.

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 7 of 31
        The information that is set forth below in this Search Warrant
        Affidavit is either information known personally to me,
        information that I obtained from other law enforcement sources,
        information obtained from public records, or information from a
        source otherwise identified in this Search Warrant Affidavit.
        THE INVESTIGATION
                During the month of April 2014, this affiant received
        information from an anonymous source concerning the house
        and occupants located at 5926 Crittenden Ave. A residence that
        is particularly described as a multiple story, single family
        dwelling that has a yellow siding type covering. The house has
        brown gutters and trim with a gray roof. There are no numbers
        visible near the front door which is a dark color. The house is
        situated between addresses 5920 and 5930 and is located on
        Marion County parcel number 8014228.
               The information indicated that there was possibly a
        marijuana grow [operation] inside of the residence. The tipster
        described the residence as being yellow. They stated that there
        was a male and female occupant of the residence. The male was
        only identified as “Brandon” and the female was identified as
        “Kelsey”. The anonymous person indicated that on a nightly
        basis the odor of marijuana can be smelled from outside of the
        house, and that bright light can be seen from outside the
        residence.
               On April 14, 2014 this affiant initiated an independent
        investigation on 5926 Crittenden Ave. I conducted day time
        surveillance on the residence and noted that the house is yellow.
        I also observed that several of the house windows had dark
        covering on them which is consistent with person(s) that operate
        indoor grow operations.
              The residence has a central air conditioning system, but
        the windows of the upstairs portion have independent air
        conditioning units. When individuals operate indoor grow
        operations, they must keep the plants’ growing temperature
        between 70 and 80 degrees Fahrenheit. Artificial lighting is used

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 8 of 31
        during the indoor grow process. The lights that are normally
        used are High Pressure Sodium or Metal Halide lights. These
        lights produce high temperatures that have the possibility of
        burning the marijuana before it could grow. Growers typically
        use air conditioning units or high speed fans to balance the
        temperature in the grow room.
               Later in the evening on April 14, 2014 this affiant
        conducted surveillance on 5926 Crittenden Ave. During my
        surveillance I noted that the north, upstairs window had a light
        emitting through the window covering. When I visually
        compared the light emitting from the north upstairs window with
        the lighting emitting from the west upstairs window, there was an
        apparent difference. Through my experience and training I
        recognized the high intensity glow coming from the north
        upstairs window as being consistent with light that emits from
        High Pressure Sodium light and Metal Halide lights.
               This affiant learned through research using police data
        bases that the occupants of the house are Brandon McGrath and
        Kelsey Bigelow. I also learned that Kelsey Bigelow is listed as
        the owner of the house and property located at 5926 N
        Crittenden.
              Upon checking the Indiana Bureau of Motor Vehicle
        records, this affiant found that the address listed on Brandon
        McGrath and Kelsey Bigelows [sic] Indiana drivers’ license is
        5926 N Crittenden Ave.
        REQUEST FOR SEARCH WARRANT
               Based off the above stated facts and attending
        circumstances this affiant believes and has good cause to believe
        that Brandon McGrath and Kelsey Bigelow are cultivating
        marijuana. This affiant believes that they are using their
        residence located at 5926 N Crittenden Avenue Indianapolis,
        Indiana (Pictures as attachment A) to grow marijuana. This
        affiant requests that a search warrant be issued to utilize an
        aircraft mounted thermal imaging detection system to view the
        residences and outbuildings on or about the curtilage of the

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 9 of 31
              property to detect the presence of a heat signature commensurate
              with an indoor marijuana growing operation.
      Appellant’s App. pp. 13-17.


[7]   After the first warrant application was granted, the search was executed by

      Detectives Michael Condon and Sergeant Edwin Andersen, whose experience

      and training are not apparent from the record, but upon whose experience

      Detective Buckner relied. Nevertheless, Detective Condon informed Detective

      Buckner that he observed from the upstairs of the address a heat signature that

      he recognized through his training and experience as being consistent with the

      heat signature put off by an active indoor marijuana grow operation.


[8]   Based on this additional information, Detective Buckner applied for a second

      search warrant for the residence and property. After the warrant was granted,

      the search revealed an elaborate, active, marijuana grow operation of 67.5

      pounds of marijuana plants (180 individual plants) and over five pounds of

      marijuana leaves. Officers also discovered plant fertilizer, heat lamps,

      dehydrators, deodorizing machines, and drying racks. McGrath, who had been

      Mirandized, told officers that he was unemployed and “that’s why he worked

      inside the house.” Tr. p. 64.




      Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 10 of 31
                                                                                                       3
[9]    The State charged McGrath with one count of dealing in marijuana as a Class
                                                                               4
       D felony and one count of possession of marijuana as a Class D felony.
                                               5
       McGrath requested a Franks hearing and filed a motion to suppress,

       challenging the search warrants under both state and federal constitutions,

       claiming a lack of probable cause. A hearing was held during which McGrath’s

       Franks hearing arguments were incorporated but not specifically ruled upon.

       The trial court denied the motion to suppress, and McGrath subsequently filed

       a motion to correct error, which was apparently denied during a pre-trial

       conference on October 23, 2015. After the conclusion of his bench trial, during

       which the seized evidence was admitted over objection, McGrath was found

       guilty as charged and sentencing was stayed pending this appeal.


                                        Discussion and Decision
[10]   When an appellant has lodged an unsuccessful motion to suppress evidence and

       then proceeds to trial, the issue for appellate review is whether the trial court

       abused its discretion by admitting the evidence against the logic and effect of




       3
           Ind. Code § 35-48-4-10 (2013).
       4
           Ind. Code § 35-48-4-11 (2013).
       5
         Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), provided that if, after a hearing, a
       defendant establishes by a preponderance of the evidence that the false statement was included in the
       affidavit sworn to by a law enforcement officer, knowingly and intentionally, or with reckless disregard for
       the truth, and the false statement was necessary to the magistrate’s finding of probable cause to issue the
       warrant, the warrant is void and the fruits of the search are excluded as evidence at trial.

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017                          Page 11 of 31
       the facts and the circumstances affecting a party’s substantial rights. Clark v.

       State, 994 N.E.2d 252, 259 (Ind. 2013).


[11]   We begin our discussion by acknowledging the extreme care used by the law

       enforcement officers in this case in their attempts to adhere to proper

       procedures in conducting this investigation. The law related to the use of

       thermal imaging, like the technology it represents, is dynamic and developing.

       For example, in this jurisdiction, in a case of first impression, the Seventh

       Circuit of the United States Court of Appeals held that thermal imaging

       scanning was not a search within the meaning of the Fourth Amendment,

       joining the Eighth and Eleventh Circuits in doing so. U.S. v. Myers, 46 F.3d

       668, 668 (7th Cir. 1995). The thermal imaging scanner in that case did not

       penetrate the viewed object. The Court’s analysis focused on whether Myers

       had a subjective expectation of privacy in the heat emitted from his home and

       whether society recognized that expectation as reasonable.


[12]   The holding in that case, however, later was abrogated by the United States

       Supreme Court opinion in Kyllo v. U.S., 533 U.S. 27, 121 S. Ct. 2038, 150 L.

       Ed. 2d 94 (2001). In this appeal from the Ninth Circuit, an agent used a

       thermal imager to detect heat emissions from a home, without first seeking a

       warrant. An evidentiary hearing established that the thermal imager was a non-

       intrusive device, emitting no beams or rays, and showed a crude visual image of

       the heat being radiated as was detectable from outside the house. The device

       could not penetrate walls or windows to reveal human conversations or

       activities, nor were intimate details of the home observed. Following the

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 12 of 31
       hearing, a search warrant was issued for the house based, in part, on the

       scanning evidence.


[13]   The U.S. Supreme Court reversed the denial of the motion to suppress the

       evidence seized after the scanning had occurred stating, “Where, as here, the

       Government uses a device that is not in general public use, to explore details of

       the home that would previously have been unknowable without physical

       intrusion, the surveillance is a ‘search’ and is presumptively unreasonable

       without a warrant.” 533 U.S. at 40. The matter was remanded to the district

       court to determine if the search warrant for the house was supported by

       probable cause minus the evidence provided by the thermal imaging scanner.

       Id.


[14]   Here, Detective Buckner correctly recognized that the use of the thermal

       imaging scanner was a search and applied for a warrant to conduct that search.

       “Generally, to be reasonable, a search must be conducted pursuant to a

       properly-issued warrant supported by probable cause.” Pinner v. State, 74

       N.E.3d 226, 229 (Ind. 2017). Many of the reported cases across the country

       discussing the use of thermal imaging scanners, or FLIR, are appeals from the

       use of that technology without first obtaining a search warrant for the use of the

       technology. Those appeals come from decisions on motions to suppress or the

       admission of evidence at trial, of evidence seized by way of the warrant to

       search the residence, using the warrantless imaging information to establish

       probable cause for that subsequent search.



       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 13 of 31
[15]   Nonetheless, a warrant for the use of thermal imaging scanners is necessary and

       must be supported by probable cause. “‘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) (citing State v.

       Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006), quoting Illinois v. Gates, 462 U.S.

       213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) (emphasis added).

       Regarding the levels of review, “The duty of the reviewing court is to determine

       whether the magistrate had a ‘substantial basis’ for concluding that probable

       cause existed.” McCollum v. State, 63 N.E.3d 5, 9 (Ind. Ct. App. 2016) (quoting

       Illinois v. Gates, 462 U.S. at 238-39, 103 S. Ct. 2317) (emphasis added).

       “‘[S]ubstantial basis requires the reviewing court, with significant deference to

       the magistrate’s determination, to focus on whether reasonable inferences

       drawn from the totality of the evidence support the determination’ of probable

       cause.” Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997) (quoting Houser v.

       State, 678 N.E.2d 95, 99 (Ind. 1997)).


[16]   The definition of a reviewing court includes the trial court ruling on the motion

       to suppress and an appellate court reviewing that decision. Jaggers, 687 N.E.2d

       at 182. On appellate review, we consider only the evidence presented to the

       issuing magistrate and not post hac justifications for the search. Id. “We

       review the trial court’s substantial basis determination de novo.” McCollum, 63

       N.E.3d at 9 (citing Jaggers, 687 N.E.2d at 182).

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017        Page 14 of 31
[17]   In Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied,

       (internal citation omitted), in a case involving a traffic stop, not the issuance of

       a search warrant, a panel of this court acknowledged both the substantial

       deference given to courts that rule on motions to suppress and our de novo

       review as follows:

               Although a trial court’s determination of historical facts is
               entitled to deferential review, we employ a de novo standard
               when reviewing the trial court’s ultimate determinations of
               reasonable suspicion and probable cause. In other words, when a
               trial court has admitted evidence alleged to have been discovered
               as the result of an illegal search or seizure, we generally will
               assume the trial court accepted the evidence presented by the
               State and will not reweigh that evidence, but we owe no
               deference as to whether that evidence established the
               constitutionality of a search or seizure.
[18]   “Probable cause has long been described as a fluid concept incapable of precise

       definition. It is to be decided based on the facts of each case.” McCollum, 63

       N.E.3d at 9 (quoting Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997)). “The

       level of proof necessary to establish probable cause is less than that necessary to

       establish guilt beyond a reasonable doubt.” Id. (quoting Jellison v. State, 66

       N.E.2d 532, 534 (Ind. Ct. App. 1995)). “Probable cause means a probability of

       criminal activity, not a prima facie showing.” Id. (quoting Fry v. State, 25

       N.E.3d 237, 245 (Ind. Ct. App. 2015), trans. denied).


[19]   McGrath argues with respect to the first warrant that there was insufficient

       evidence to corroborate the anonymous tip that there was ongoing criminal



       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 15 of 31
       activity at his house such that search warrants were supported by probable
                               6
       cause. We agree.


[20]   Indiana Code section 35-33-5-2(b) (2005) provides in pertinent part that when

       the supporting affidavit is based on hearsay, the affidavit must contain reliable

       information establishing the credibility of the source and establishing that there

       is a factual basis for the information furnished, or contain information that

       establishes that the totality of the circumstances corroborates the hearsay.

       However, “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 v. State, 687 N.E.2d 180, 182 (Ind. 1997) (citing Illinois

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

       Gates, as relevant to this appeal, the reliability of hearsay, for purposes of

       probable cause, may be established by independent police investigation

       corroborating the informant’s statements. Id. Additionally, “probable cause

       means a probability of criminal activity, not a prima facie showing.” Seltzer v.

       State, 489 N.E.2d 939, 941 (Ind. 1986) (citing Brinegar v. U.S., 338 U.S. 160, 69

       S. Ct. 1302, 93 L. Ed. 2d 1879 (1949)).




       6
        We acknowledge the perspective in Judge Bradford’s dissent but part ways in our analysis. The dissent
       would not reach the question of probable cause before analyzing the good faith efforts of law enforcement in
       assessing the admissibility of the evidence ultimately seized from the residence. The majority sees this
       differently, reviewing probable cause for the issuance of the first warrant, while recognizing the considerable
       and diligent efforts made by law enforcement in this investigation of the anonymous informant’s tip to them.
       The evidence presented to the magistrate and the trial court, while sufficiently setting forth what
       corroborating information was gathered, insufficiently established probable cause of criminal activity to
       warrant further searches, beginning with the FLIR search.

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017                        Page 16 of 31
[21]   Here, Detective Buckner conducted an independent investigation, verifying all

       details provided by the tipster save for the smell of marijuana emanating from

       the premises. McGrath, on the other hand, presented photographic evidence

       that in the area in which he lives, it is not uncommon for houses to have both

       central air conditioning and independent air conditioning units, due to the age

       of the houses. McGrath further argued that it was not uncommon for people to

       have coverings over their windows—drapes, blinds, or blankets—in lower

       income areas, which he characterizes his as being, in college dorms, or when

       residents are out of town. McGrath additionally argued that it is not

       unreasonable for someone to use two diverse styles of light bulbs differing in

       light strength, noting that many varieties can be purchased in home

       improvement stores.


[22]   McGrath challenges the adequacy of the police investigation supporting the

       search of his house relying on Jaggers. In Jaggers, the anonymous tipster

       provided law enforcement with information that: (1) he had personally seen

       marijuana in and around Jaggers’ house on numerous occasions over the course

       of several years, and most recently in the prior week; and, (2) Jaggers was

       growing marijuana on two plots of land away from his residence. The caller

       also provided a description of the house and the location of the offsite plots,

       including approximately how many marijuana plants would be found there.

       Following up on the tip, law enforcement officers verified the accuracy of the

       caller’s description of the house and ascertained that a truck in the driveway of

       the house was registered to Jaggers. The officer drove to each of the off-site


       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 17 of 31
       plots and found marijuana growing there, with each plot easily accessible to the

       public. After the search warrant for the house was granted, a substantial

       quantity of marijuana and related paraphernalia was discovered.


[23]   Jaggers was convicted in a bench trial and he appealed, presenting claims only

       under the Fourth Amendment and Indiana Code section 35-33-5-2. On

       transfer, the Supreme Court held that under Fourth Amendment analysis, “the

       only factor cutting toward crediting the tip in this case was that the caller

       claimed to have personally witnessed the criminal activity.” 687 N.E.2d at 183.

       The caller, however, gave no information that would allow a neutral magistrate

       to assess the credibility of the claimed observation. “The caller’s assertion of

       personal knowledge carries little weight in light of the total lack of

       corroboration of the claim and no basis for concluding that the caller was a

       credible source.” Id. The Court concluded by stating, “[I]f any anonymous

       caller’s allegation, uncorroborated by anything beyond public knowledge, could

       justify a search, every citizen’s home would be fair game for a variety of

       innocent and not so innocent intrusions.” Id. The same observation was made

       under state statutory analysis, concluding that there must be something beyond

       information in the public domain offered to support the credibility of the

       anonymous source. Id. at 184.


[24]   In addition to the discussion in Jaggers, we find persuasive the rationale

       expressed in a decision from California in which a police officer sought a search

       warrant for the use of a thermal imaging scanner to corroborate a tip received

       from an anonymous informant. In People v. Gotfried, 131 Cal. Rptr. 2d 840 (Cal.

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 18 of 31
Ct. App. 2003), the issuance of a search warrant for the use of thermal imaging

and whether there was sufficient evidence of probable cause to support the

warrant was considered as a matter of first impression. The application for the

warrant in Gotfried set forth the following:


        Affiant is a Deputy Sheriff for the Monterey County Sheriff’s
        Office and has been so employed since 1982. Since December,
        1993, affiant has been assigned full-time to the County of
        Monterey Marijuana Eradication Team which specifically targets
        the detections, arrest and prosecution of marijuana growers.
        Affiant has received formal training in the investigation of
        narcotics violations, including special classes from the
        Department of Justice, and Drug Enforcement Administration.
        Affiant has also had extensive in-service training from the
        Sheriff’s Office and veteran deputy sheriffs who have specialized
        in narcotics law enforcement for many years. Affiant has
        participated in the investigation, surveillance, arrest, and search
        for contraband in numerous cases involving marijuana, cocaine,
        and heroin. Affiant has assisted the Monterey County Sheriff’s
        Office Special Enforcement Detail in the eradication of several
        marijuana gardens and was a primary investigator in the
        detection, arrest, and prosecution of a case involving a major
        indoor marijuana garden of 492 plants.
        Affiant has also read various written materials concerning
        narcotic law violations, especially relating to the cultivation and
        sales of marijuana. Affiant has further spoken with experts in the
        field as well as drug users concerning the methods of operation of
        marijuana growers and sellers and sellers of other illicit drugs.
        Based on training and experience, affiant is thoroughly familiar
        with the manner in which marijuana is grown, harvested,
        packaged, sold and used. Through training and experience,
        affiant is familiar with the appearance and odor of marijuana in
        both its live and dried forms.


Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 19 of 31
        Your affiant has had formal training in cannabis aerial
        observation from the Department of Drug Enforcement
        Administration and has observed 65 cannabis gardens resulting
        in the seizure of 11,120 cannabis plants.
        Your affiant has had formal training in Thermal Imagery from
        the Department of Drug Enforcement Administration, and has
        been the investigating officer in 8 investigations of indoor
        marijuana cultivation cases involving the use of the Thermal
        Imager. Your affiant has testified as an expert in the use of
        the Thermal Imager in the detection of indoor marijuana
        cultivation.
        On 9-23-98 your affiant received the following information from
        an anonymous informant. He/She stated that Frederic [sic ]
        Gotfried was growing marijuana at his place of residence, that
        being 70450 Chadwick, space # 21, Jolon Road, Lockwood in
        the County of Monterey.
        He/She told affiant Frederic [sic ] Gotfried has been growing
        marijuana for 3 to 4 years in a room approximately 12 feet by 12
        feet which is located to the rear of his trailer. Frederic [sic ]
        Gotfried is growing 80 to 120 marijuana plants under four high
        pressure lights.
        He/She told affiant Frederic [sic ] Gotfried moved to the remote
        area of Monterey County to keep from being detected by aerial
        overflights with infrared cameras. He/She stated Frederic [sic ]
        Gotfried diverted the electricity prior to the meter, in order to
        keep the high usage of electricity from being detected. He/She
        told affiant Frederic [sic ] Gotfried has been diverting electricity
        for over 3 years.
        He/She told affiant Frederic [sic ] Gotfried sells his marijuana for
        $2,800 a pound to his clients in Santa Cruz.
        He/She told affiant Frederic [sic ] Gotfried has been evicted from
        the trailer park, and will be moving the marijuana cultivation
        operation to another location. He/She stated Frederic [sic ]
        Gotfried drives a Volvo with the California license number


Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 20 of 31
        399VNR, and a Ford Bronco with the California license number
        3LQG447.
        9-23-98, 2200 hrs your affiant and Investigator Doug Dahmen
        drove to vicinity of 70450 Chadwick, Jolon Road, Lockwood at
        which time we were followed by a Ford Bronco with the
        California license number 3LQG447 which drove to space # 21
        and parked. While Investigator Doug Dahmen and affiant
        driving [sic ] through the trailer park, the driver of the Bronco
        confronted affiant and Investigator Doug Dahmen in front of
        space # 21, and questioned us as to our business at the trailer
        park. We explained we were [looking] for a friend, he told us the
        subject we were looking for was no longer at the trailer park and
        should leave due to the fact we were bothering the neighbors.
        The driver matched the description given by the informant and
        that in the DMV records.
        Prior to departing the area Investigator Doug Dahmen saw a
        Volvo with the California license plate number 399VNR parked
        next to the trailer at space # 21.
        Your Affiant checked the criminal history for Frederic [sic ]
        Gotfried through the Monterey County Sheriff’s Department’s
        record section and found no prior criminal convictions.
        A driver’s license check of Frederic [sic ] Gotfried through the
        Department of Motor Vehicles showed his address as being 2636
        17th Avenue # 159 Santa Cruz, with the above two vehicles
        registered to him at that address.
        Your affiant knows from training and experience that people
        who grow marijuana indoors, grow it in rotating cycles. Your
        affiant believes that marijuana is still being grown, and or drying.
        Your affiant knows from my training and experience that
        growing marijuana indoors requires the use of artificial lighting,
        and that the majority of indoor marijuana cultivators utilize 400
        to 1,000 watt metal halide and/or high pressure sodium lighting
        systems which produce a significant amount of heat. This heat is
        then vented from thermal gaps in the structure or it heats up the
        surface of the entire structure. Most indoor marijuana cultivators
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 21 of 31
        utilize heat venting systems to ventilate the heat away from the
        grow room area. Heat ventilation systems are used to exhaust
        excessive heat, which is damaging to growing marijuana plants.
        Your affiant knows from training and experience
        that thermal imaging devices can detect temperature differences
        indicative of indoor marijuana cultivation in each of the above
        described instances.
        Declarant requests judicial authorization, as outlined in People v.
        Deutsch (1996) 44 Cal. App. 4th 1224, 52 Cal. Rptr. 2d 366, for
        the use of a thermal detection device to detect the differences in
        the temperature of the heat emanating from the structures on the
        above described property.
        The thermal imaging device to be used is a passive, non-intrusive
        system which detects differences in temperature of an object
        being observed. This system does not send any beams or rays
        into an area, nor does it enter any structure. The system only
        detects differences in the surface temperatures of an object.
        The use of this device for detecting indoor marijuana cultivation
        is most effective in the early morning or late evening hours when
        the surface temperature is minimally affected by solar heat
        loading, and man-made heat sources will be highlighted by a
        contrasting color with cooler surfaces.
        It is therefore requested that the use of
        the thermal imaging device be authorized between the hours of
        10:00 PM. to 7:00 AM[.]
        Similar thermal imaging devices have been used by public
        agencies and private industry for other applications such as
        locating missing persons in a forest, identifying heat inefficient
        building insulation, detecting overloaded power lines, detecting
        forest fire lines through smoke, and detecting hot spots in wild
        fires.
        Declarant does not request any entry be made into the structures
        or property described above. Nothing will be seized from the
        property. I request only that law enforcement be authorized to
        utilize thermal imaging from outside the curtilage of the property
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 22 of 31
               to observe the surface temperature of the structures on the
               property.
               It is declarant’s belief, based on the above facts, and your
               declarant’s training and experience, that the use of the thermal
               imager at 70450 Chadwick, Jolon Road, Lockwood in the
               County of Monterey, will assist in the investigation of the
               violation of Section 11358 of the Health and Safety Code,
               Cultivation of Marijuana.
       131 Cal. Rptr. 2d at 841-43.


[25]   Reversing, the court quoted People v. Johnson, 220 Cal. App. 3d 742, 749 (1990),

       discussing what level of corroboration was sufficient for reliance on information

       provided by an untested, anonymous, or unreliable informant. The court stated

       as follows:

               Because unverified information from an untested or unreliable
               informant is ordinarily unreliable, it does not establish probable
               cause unless it is “corroborated in essential respects by other
               facts, sources or circumstances.” For corroboration to be
               adequate, it must pertain to the alleged criminal activity;
               accuracy of information regarding the suspect generally is
               insufficient. Courts take a dim view of the significance of
               “pedestrian facts” such as a suspect’s physical description, his
               residence and his vehicles. However, the corroboration is
               sufficient if police investigation has uncovered probative
               indications of criminal activity along the lines suggested by the
               informant. Even observations of seemingly innocent activity
               provide sufficient corroboration if the anonymous tip casts the
               activity in a suspicious light. “It is only where . . . neither the
               veracity nor basis of knowledge of the informant is directly
               established, the information is not so detailed as to be self-
               verifying and there is no logistical or other reason verification
               from other sources cannot be achieved, that the failure to
               corroborate may be indicative that it was objectively

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017    Page 23 of 31
               unreasonable for the officer to believe in the existence of probable
               cause.”
       Gotfried, 131 Cal. Rptr. 2d at 845-46 (quoting, Johnson, 220 Cal. Rptr. 3d at

       749).


[26]   Indiana follows the same rationale in holding that “Although the anonymous

       tip in this case provided the police with some information that was not readily

       knowable by a member of the general public—i.e., the suspended driver’s

       license—it lacked any information that would allow the police to corroborate

       the caller’s claim that illegal activity was afoot.” Richardson v. State, 848 N.E.2d

       1097, 1103 (Ind. Ct. App. 2006) (citing Sellmer v. State, 842 N.E.2d 358 (Ind.

       2006), citing Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d

       254 (2000) (observing that reasonable suspicion “requires that a tip be reliable in

       its assertion of illegality, not just in its tendency to identify a determinate

       person.”)).


[27]   We recognize Detective Buckner’s extensive training and experience in the

       investigation of illegal drug operations and the magistrate’s understandable

       deference to that expertise. Such was also the case of the law enforcement

       agents in People v. Gotfried. However impeccable the training and experience of

       law enforcement officers in such matters, that training and experience cannot

       provide a portion of the basis for, or the missing piece needed to establish,

       probable cause for the issuance of the warrant authorizing the use of a thermal

       imaging device.




       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 24 of 31
[28]   In the present case, Detective Buckner did not corroborate information from the

       anonymous tipster about criminal activity. The display of lightbulbs differing in

       intensity or brightness is not criminal activity, nor is covering one’s windows.

       Further, the use of additional air conditioning units is not criminal activity.

       What was lacking was corroboration of the distinctive smell of marijuana

       emanating from the house, which would have provided corroboration of the tip

       that criminal activity likely was occurring at that location. In short, a

       detective’s determination that there is a probability that evidence of criminal

       activity will be found at a particular place based upon his or her training and

       experience without evidence that corroborates a tip that criminal activity has

       occurred or is occurring at a particular location, does not establish probable

       cause for the issuance of a search warrant. The decision of the existence of

       probable cause to issue the warrant lies in the hands of the magistrate or judicial

       official entrusted with that determination.


[29]   Clearly, there is a level of respect accorded those who have extensive training in

       these kinds of investigations. However, there must be evidence of criminal

       activity presented to the magistrate to establish probable cause to justify the

       issuance of the warrant. We decide this appeal entirely cognizant of law

       enforcement’s ultimate finding of a considerable, active, marijuana grow

       operation, which is in violation of our state laws. Nevertheless, finding that the

       evidence of probable cause to support a search utilizing a thermal imaging

       scanner was lacking, we are constrained to reverse McGrath’s conviction.




       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 25 of 31
                                                  Conclusion
[30]   In light of the foregoing, we reverse and remand the decision of the trial court.


[31]   Reversed and remanded.


[32]   Crone, J., concurs.


[33]   Bradford, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 26 of 31
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Brandon McGrath,
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  49A04-1610-CR-2270
               v.

       State of Indiana,
       Appellee-Plaintiff.




       Bradford, Judge, dissenting.

[34]   I respectfully disagree with the majority’s disposition of this case. Without

       reaching the question of probable cause, I believe at the very least that the good

       faith exception applies to render the evidence collected from McGrath’s

       residence admissible. Consequently, I respectfully dissent.

               [T]he exclusionary rule does not require the suppression of
               evidence obtained in reliance on a defective search warrant if the
               police relied on the warrant in objective good faith. United States
               v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d
               677, 698 (1984); [Jaggers v. State, 667 N.E.2d 180, 184 (Ind.
               1997)]. The good faith exception has been codified at Indiana
               Code § 35-37-4-5(a), which provides that “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

       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017             Page 27 of 31
               unlawful if the evidence was obtained by a law enforcement
               officer in good faith.”
               ….
               The good faith exception cannot be so broadly construed as to
               obliterate the exclusionary rule. Dolliver v. State, 598 N.E.2d 525,
               529 (Ind. 1992). Accordingly, certain police conduct does not
               qualify for this exception, including where: (1) the magistrate is
               misled by information in the affidavit that the affiant either knew
               was false or would have known was false except for his reckless
               disregard for the truth, or (2) the warrant was based on an
               affidavit so lacking in indicia of probable cause as to render belief
               in its existence unreasonable. Jaggers, 687 N.E.2d at 184 (citing
               Leon, 468 U.S. at 923, 104 S. Ct. at 3421, 82 L. Ed. 2d at 699);
               [State v. Johnson, 669 N.E.2d 411, 412 (Ind. Ct. App. 1996), trans.
               denied].
       Newby v. State, 701 N.E.2d 593, 602-03 (Ind. Ct. App. 1998).



                                      I. The FLIR Warrant
[35]   Here, the record clearly supports the conclusion that the police acted in good

       faith in executing the FLIR warrant. I acknowledge, as does the majority, the

       extreme care exercised by law enforcement during the investigation in this case.

       There is no suggestion that any information set forth by Detective Buckner in

       his affidavit is false, much less that he knew it to be false or showed reckless

       disregard for the truth. McGrath’s entire argument seems to be that Detective

       Buckner’s affidavit was incomplete, and therefore apparently impermissibly

       misleading, by failing to note that other houses in the area had both central and

       auxiliary air-conditioning units and/or window coverings of some sort.



       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 28 of 31
[36]   While it is true that “when there is a material omission of fact, this amounts to

       deliberate, reckless, or grossly negligent conduct[,]” Hayworth v. State, 904

       N.E.2d 684, 699 (Ind. Ct. App. 2009), McGrath has not established that any

       omission was material. First and foremost, the fact that some of the things

       Detective Buckner observed can have innocuous explanations does nothing to

       undercut the fact that dark window coverings and additional air conditioning

       units are, in fact, indications of illegal activity, which McGrath does not

       dispute. Second, very few, if any, of the nearby houses’ windows appear to

       have “dark coverings,” as on McGrath’s house. (Defendant’s Ex. D). Because

       it may be inferred that Detective Buckner is referring to window coverings

       intended to block all light, coverings that are not completely opaque are not

       suspicious, and one would not expect Detective Buckner to mention them, even

       if he had noticed them on other houses. Last, Detective Buckner was

       responding to a report of possible illegal activity at one address; his failure to

       examine the entire neighborhood for other houses with window coverings or

       suspiciously excessive air conditioning did not show a reckless disregard for the

       truth. The record does not support a conclusion that the magistrate was misled

       by Detective Buckner by any alleged omissions. I would conclude that police

       relied on the FLIR warrant in good faith.



                                   II. The Second Warrant
[37]   McGrath also contends that the warrant to search McGrath’s house, obtained

       by Detective Buckner using the results of the FLIR inspection conducted by


       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 29 of 31
       Detective Condon and Sergeant Andresen, was so lacking in indicia of probable

       cause as to render belief in its existence unreasonable. McGrath specifically

       argues that Detective Buckner’s affidavit is defective because it did not describe

       Detective Condon’s qualifications or experience or the FLIR system in

       sufficient detail. Detective Buckner averred in his application for the second

       warrant that Detective Condon told him that, based on Detective Condon’s

       experience and training, the heat signature from McGrath’s house was

       consistent with a marijuana-growing operation. As a general proposition, it is

       well-settled that “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.”

       Utley v. State, 589 N.E.2d 232, 236 (Ind. 1992). As such, there is nothing about

       reliance on the expertise of fellow police officers that undercuts probable cause.


[38]   McGrath points to no authority for the proposition that Detective Condon’s

       experience and training should have been spelled out in detail, and I am aware

       of none. Moreover, I believe that it is perfectly reasonable to infer that

       “Detective Condon” is a fellow police officer of Detective Buckner, especially

       in the context of the warrant application. Nor is there any authority requiring

       the FLIR system’s operations to be described in detail, as McGrath argues

       should have been done. In summary, because the second warrant is not so

       lacking in indicia of probable cause as to render reliance on it unreasonable,

       police relied on it in good faith. I would affirm the judgment of the trial court




       Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017   Page 30 of 31
on the basis that the good faith exclusion applies to the two warrants in this

case.7




7
 Because I would decide the case based on the officers’ good-faith reliance on the search warrants, I would
not reach the question of whether the warrants were, in fact, supported by sufficient probable cause.

Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017                     Page 31 of 31
