                                                                           Jul 24 2015, 6:48 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ross G. Thomas                                             Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Antyon Buford,                                             July 24, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A05-1408-CR-392
        v.                                                 Appeal from the Elkhart Superior
                                                           Court;
                                                           The Honorable George Biddlecome,
State of Indiana,                                          Judge;
Appellee-Plaintiff.                                        20D03-1305-FA-25




May, Judge.




Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015                           Page 1 of 11
[1]   Antyon Buford appeals his convictions of Class A felony dealing cocaine, 1

      Class B felony unlawful possession of a firearm by a serious violent felon, 2 and

      Class D felony maintaining a common nuisance. 3 As the warrant on which the

      search of his residence was premised was not supported by probable cause, we

      reverse and remand. 4


                                     Facts and Procedural History
[2]   Elkhart police received information from an “intelligence form,” (Tr. at 27), the

      prosecutor’s office provided that there might be drug activity at a residence

      Buford was renting. The source of the information was not identified. The tip

      named Johnny Stewart, who had an open arrest warrant, in connection with

      the activity. Police went to the residence, where the screen door was shut but

      the front interior door was open. They smelled burnt marijuana as they

      approached the front door and saw Buford and Stewart just inside the door.

      Stewart and Buford ran when the officers knocked on the door and identified

      themselves, but when the officers continued knocking Stewart came to the door.

      Stewart told the police Buford was the tenant.




      1
          Ind. Code § 35-48-4-1 (2013).
      2
          Ind. Code § 35-47-4-5 (2013).
      3
          Ind. Code § 35-48-4-13 (2013).
      4
       Because we reverse, we need not address Buford’s allegations certain evidence was admitted without a
      proper foundation and the substitution of a new judge at the beginning of his trial deprived him of due
      process.

      Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015                         Page 2 of 11
[3]   Buford came downstairs after Stewart called for him to do so. He provided

      identification to the police, and they determined there was a warrant for

      Buford’s arrest. They entered the residence and handcuffed Buford and

      Stewart. The odor of marijuana was stronger inside the house, and the officers

      saw marijuana “shake” 5 on the dining room table. (Id. at 45.) One of the

      officers left to obtain a search warrant.


[4]   The probable cause affidavit on which the search warrant was premised stated

      the affiant officer had good cause to believe evidence of drug “dealing” would

      be found at the residence. (App. at 92.) The warrant was issued and during the

      search police found a gun, bullets, marijuana roaches, a scale with white

      residue that field-tested positive for cocaine, a white rock that appeared to be

      cocaine, and plastic baggies with the corners cut off. Buford moved to suppress

      evidence on the ground there were false and misleading statements in the

      probable cause affidavit and the police began to search before the warrant was

      issued. His motion was denied. A trial was conducted and the jury found

      Buford guilty of all counts.


                                        Discussion and Decision
[5]   Buford argues the evidence obtained pursuant to the search warrant should

      have been suppressed because the affidavit the police offered in obtaining the




      5
         An officer testified “shake” is “remnants of marijuana.” (Tr. at 45.) “So it’s not the actual bud itself, but
      it’s things that it can be small pieces of marijuana that come off the actual bud itself.” (Id.)

      Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015                              Page 3 of 11
      warrant included uncorroborated hearsay and false or misleading statements.

      As the probable cause affidavit included hearsay information that was not

      corroborated by the totality of the circumstances, the warrant should not have

      been issued.


[6]   In deciding whether to issue a search warrant, “[t]he task of the issuing

      magistrate is simply to make a practical, commonsense decision whether, given

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

      contraband or evidence of a crime will be found in a particular place.” Jaggers v.

      State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213,

      238 (1983), reh’g denied). The duty of the reviewing court is to determine

      whether the magistrate had a substantial basis for concluding there was

      probable cause. Id. Determining whether there is a “substantial 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. Id. at 181-

      82. That standard applies to the trial court’s ruling on a motion to suppress and

      to our review of that decision. Id. at 182. In this review, we consider only the

      evidence presented to the issuing magistrate and not post hac justifications for

      the search. Id.


[7]   Ind. Code § 35-33-5-2 provides in part:

              no warrant for search or arrest shall be issued until there is filed with
              the judge an affidavit:
                       (1) particularly describing:

      Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015             Page 4 of 11
                                (A) the house or place to be searched and the things to
                                be searched for; or
                                (B) particularly describing the person to be arrested;
                       (2) alleging substantially the offense in relation thereto and that
                       the affiant believes and has good cause to believe that:
                                (A) the things sought are concealed there; or
                                (B) the person to be arrested committed the offense; and
                       (3) setting forth the facts known to the affiant through personal
                       knowledge or based on hearsay, constituting the probable
                       cause.
              (b) When based on hearsay, the affidavit must either:
                       (1) contain reliable information establishing the credibility of
                       the source and of each of the declarants of the hearsay 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.
[8]   Uncorroborated hearsay from a source whose credibility is itself unknown,

      standing alone, cannot support a finding of probable cause to issue a search

      warrant. Newby v. State, 701 N.E.2d 593, 598 (Ind. Ct. App. 1998). The

      reliability of hearsay can be established in a number of ways, including where:

      (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 demonstrated, or (4) the informant predicts

      conduct or activities by the suspect that are not ordinarily easily predicted. Id.




      Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015              Page 5 of 11
[9]    The State does not argue the affidavit was not premised, at least in part, on

       uncorroborated hearsay. 6 Rather, it argues such allegation of error is not

       available to Buford on appeal because he objected to the warrant on different

       grounds at trial, citing White v. State, 772 N.E.2d 408, 411 (Ind. 2002) (when

       party objects on one ground at trial and raises a different ground on appeal,

       issue is waived for review).


[10]   We reject the State’s argument Buford “did not present a claim that the warrant

       was unsupported by probable cause.” (Br. of Appellee at 12.) The State is

       correct that Buford’s motion to suppress alleged only that the affidavit included

       false and misleading statements, and that at the hearing on the motion Buford

       agreed with the judge’s characterization of his argument as “[n]ot really that the

       search warrant on its face is invalid, but rather that the facts set forth in it are

       not correct.” (Tr. at 2.)


[11]   But the State does not acknowledge that at the hearing, Buford did challenge

       the validity of the warrant to the extent it was premised on uncorroborated

       hearsay from an anonymous source. The State complained at the hearing that




       6
         The State does assert, without citation to legal authority, that “the fact that the anonymous tip was not
       corroborated is of no moment,” (Br. of Appellee at 13), because probable cause was not based on the tip – it
       was based on what happened when the officers went to the house. As explained below, nothing the officers
       saw when they went to the house provided evidence to corroborate the allegation in the affidavit of
       “dealing.”
       The State also says the affidavit “does not purport to say that the tip came from a reliable or known source.”
       (Id. at 14.) In fact, the affidavit explicitly says police “received a drug tip, from the Elkhart County
       Prosecutor’s Office.” (App. at 92.) As we have been directed to no evidence suggesting otherwise, we
       presume the prosecutor’s office received the tip from an unnamed informant.

       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015                            Page 6 of 11
       the statements in the motion were “conclusory,” (Tr. at 5), and Buford’s

       counsel “should put the state on notice as to what the alleged false and

       misleading representation are [sic] so that we have a fair opportunity to defend

       them.” (Id.) The court asked counsel to tell the State “what it is you say is

       false.” (Id. at 7.)


[12]   Counsel responded that paragraph three of the affidavit made reference to an

       anonymous drug tip the police received from the prosecutor’s office, and

       “[t]here’s no mention anywhere in this paragraph with respect to reliability of

       the particular informant that provided that tip.” (Id.) Counsel asserted “there

       was no corroborating information, no independent basis or understanding for

       the reliability of this particular informant. . . . without any reference to such

       information within the body of this affidavit for search warrant, [the affiant’s

       statement the information was based on personal knowledge and corroborated

       through independent investigation] is a false and misleading statement.” (Id. at

       8.) The State did not respond, and the trial commenced. Buford did not waive

       that allegation of error.


       The affidavit police offered to establish probable cause for issuance of the search

       warrant alleged the Elkhart police

               received a drug tip, from the Elkhart County Prosecutor’s Office, that
               [Stewart] is selling drugs out of the residence. The drug tip advised
               that there are numerous vehicles pulling up at [the residence] for short
               periods of time, people exiting the vehicles and going into the house,
               and the same people leaving the residence shortly after entering.




       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015        Page 7 of 11
       (App. at 92.) The affidavit goes on to say the police conducted surveillance of

       the residence about three weeks later, and they saw Buford and Stewart there.

       “It was known to the Elkhart Police Drug Unit that” Buford had a warrant for

       driving while suspended and Stewart had a warrant for a probation violation.

       (Id.) It says police went to the residence and could smell burnt marijuana

       coming from it. They entered the residence and saw marijuana on a table.


[13]   The affidavit states: “[t]he undersigned affiant swears upon his oath that he

       believes and has good cause to believe that: Certain evidence involved in the

       commission of the offenses of Dealing Marijuana and or other illegal substances exists

       [at Buford’s residence].” (App. at 92) (emphasis added). The only allegation of

       “dealing” is the statement in paragraph three, which is based on the anonymous

       tip.


[14]   As noted above, an affidavit based on hearsay 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. See, e.g., Newby 701

       N.E.2d at 598 (noting uncorroborated hearsay from a source whose credibility

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

       issue a search warrant, and stating the federal test for ensuring the reliability of

       a hearsay statement in a probable cause determination allows the use of hearsay

       “only if the totality of the circumstances corroborates the hearsay”) (citing

       Gates, 462 U.S. at 230-31).

       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015      Page 8 of 11
[15]   The affidavit asserting police would find evidence of “dealing” at Buford’s

       residence contained no information to satisfy the first requirement, nor did the

       totality of the circumstances corroborate the hearsay statement there was

       “dealing” at the residence. After the reference to the “tip” that Stewart was

       “selling drugs out of the residence,” (App. at 92), the affidavit asserts the police

       saw Buford and Stewart at the residence; police smelled burnt marijuana when

       they approached the residence; and when Buford opened the door and they

       entered the house they saw marijuana 7 on the table. As none of those

       circumstances corroborate a statement there was dealing at the house, the

       affidavit did not provide probable cause for the issuance of a search warrant.


[16]   In Jaggers, an officer received an anonymous telephone call asserting: (1) he had

       personally seen marijuana in and around Jaggers’ house on numerous

       occasions over the course of several years, most recently in the prior week; and

       (2) Jaggers was growing marijuana on two plots of land away from his

       residence. The caller described the house and the location of the off-site plots,

       including approximately how many marijuana plants would be found there.

       The officer determined the caller’s description of the house was accurate. He

       drove to each of the described plots and found marijuana growing there. Both




       7
         As the affidavit did not indicate how much marijuana the officers saw, that statement could not
       corroborate the tip that drugs were being sold out of the residence. The police testimony at trial was that the
       amount the officers saw was “small” and was described as “shake” – that is, “remnants of marijuana.” (Tr.
       at 45.) “So it’s not the actual bud itself, but it’s things that it can be small pieces of marijuana that come off
       the actual bud itself.” (Id.) We decline to hold evidence of a “small” amount of “shake,” without more, can
       support an allegation of “dealing.”

       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015                               Page 9 of 11
       plots were on land easily accessible to the public, one approximately two miles

       and the other six miles from Jaggers’ house. Based on the officer’s testimony at

       a probable cause hearing, a magistrate issued a warrant authorizing a search of

       the described house for “[m]arijuana, ‘grow’ lights, and records and other

       similar written material recording or otherwise reflecting illegal trafficking in

       marijuana.” 687 N.E.2d at 181. The officer executed the search warrant at

       Jaggers’ house.


[17]   Our Supreme Court determined the totality of the circumstances did not

       corroborate the hearsay: “The informant’s claim that Jaggers was cultivating

       and trafficking marijuana in his house was entirely uncorroborated. The facts

       that were verified were unremarkable; anyone who knew the location of

       [Jaggers’] house and the two marijuana patches could have placed the

       anonymous phone call.” Id. at 184.


[18]   And see Bradley v. State, 609 N.E.2d 420, 423 (Ind. 1993), where there was

       insufficient information to establish that the totality of the circumstances

       corroborated hearsay:

               The fact that a Danny Bradley with prior robbery arrests was found in
               the computer to reside at the address given in the tip, and that a crime
               fitting the description of the one related by the informant had actually
               occurred does not constitute probable cause to believe that the
               anonymous caller was telling the truth, or that a search at that address
               would yield fruits of the crime.
[19]   In the case before us, the totality of the circumstances did not corroborate a

       hearsay statement that there was “dealing” of drugs from Buford’s residence or


       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015       Page 10 of 11
       that “a search at that address would yield fruits of the crime” of dealing. Id.

       We must accordingly reverse and remand for further proceedings.


[20]   Reversed and remanded.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A05-1408-CR-392 | July 24, 2015   Page 11 of 11
