MEMORANDUM DECISION                                                  FILED
Pursuant to Ind. Appellate Rule 65(D), this                      Dec 14 2016, 8:56 am

Memorandum Decision shall not be regarded as                         CLERK
precedent or cited before any court except for the               Indiana Supreme Court
                                                                    Court of Appeals
purpose of establishing the defense of res judicata,                  and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
John L. Tompkins                                       Gregory F. Zoeller
The Law Office of John L. Tompkins                     Attorney General of Indiana
Indianapolis, Indiana
                                                       Frances Barrow
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Robert McDade,                                             December 14, 2016

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1606-MI-1414

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Hon. Michael Keele, Judge
                                                           The Hon. Kimberly Dean Mattingly,
Appellee-Plaintiff.
                                                           Magistrate
                                                           Trial Court Cause No. 49D07-1512-
                                                           MI-42105




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 1 of 7
                                          Case Summary
[1]   On May 25, 2016, the trial court signed an order transferring property to the

      United States government. Appellant-Defendant Robert McDade appeals the

      order transferring the property, contending that the boilerplate language in the

      warrant application used to seize the property is insufficient to provide adequate

      specific facts to support the issuance of the warrant. Concluding that the

      warrant application was correctly and adequately completed, we affirm.



                            Facts and Procedural History
[2]   On July 3, 2015, Detective Brian Thorla and others from the Indianapolis

      Metropolitan Police Department entered a shipping facility and visually

      inspected a number of parcels. The detectives were looking for certain

      indicators of suspicious packages, including “going to a source State, heavily

      taped box, paid for by cash for overnight delivery, no signature, no phone

      numbers, handwriting on the box.” Appellee’s Brief at 6. Detective Thorla

      discovered a package that was addressed to a source state, California, and was

      sealed then taped. Detective Thorla, a certified K9 handler, used a certified K9

      to exam the suspicious parcel and several other similar ones. The K9 gave a

      positive indication to the suspicious parcel consistent with the presence of a

      controlled substance.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 2 of 7
[3]   Later that day, Detective Thorla applied for and received a warrant to search

      McDade’s parcel at the shipping company. On the warrant application,

      Detective Thorla described the parcel as a “‘White FedEx Box’ with trafficking

      number 8077 7767 2789… [that] was suspicious because it was to be shipped to

      California, a state known to be a source state, and it was sealed then taped.”

      Brief for Appellee at 7. Additionally, Detective Thorla averred that he had

      probable cause to believe that the parcel contained controlled substances based

      on the above description and the fact that his certified canine indicated that it

      had the odor of a controlled substance.


[4]   The search warrant authorized Detective Thorla to search the parcel described

      in the application with the same trafficking number and the same

      sender/addressee information as provided. After searching, Detective Thorla

      and the other detectives found a total of $28,895 in the parcel, but nothing else.


[5]   On December 22, 2015, the Appellee-Plaintiff, the State of Indiana (the

      “State”), filed a complaint for forfeiture. The next day the State filed a notice

      and motion to transfer seized property to the United States. On January 6,

      2016, McDade filed his answer. On January, 14, 2016, McDade filed his

      objection to notice and motion to transfer seized property to the United States.


[6]   Following trial, which was conducted based on the filings, the trial court signed

      the order transferring property to the United States. The order authorized the

      State to transfer the seized $28,895 in U.S. currency to the appropriate federal

      authority.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 3 of 7
                                Discussion and Decision
[7]   On appeal, McDade argues that the warrant application did not contain

      adequate specific facts to support the issuance of a warrant to seize the parcel

      because it used boilerplate language to describe the item to be seized.

      Additionally, McDade argues that this Court should not assume that a neutral

      and detached magistrate reviewed the warrant application because the

      description of the item to be seized was not completed as required by the

      warrant application form.


[8]   McDade raises the following issues on appeal: (1) whether the warrant

      application was sufficient and set out adequate specific facts to support the

      issuance of a search warrant and (2) whether it can be presumed that a neutral

      and detached magistrate reviewed the warrant application when a material

      section of the application requiring the description of the item was not

      completed correctly. The second issue McDade addresses in his appeal is a

      reframing of the first issue, but still involves the potential problem of the

      description of the item to be seized not being completed as required. We will

      address the two issues as one and state it as whether the warrant application

      had adequate specific facts to support the issuance of a search warrant.


[9]   In reviewing the issuance of a search warrant, “the reviewing court is to

      determine whether the issuing magistrate had a substantial basis for concluding

      that probable cause existed.” Johnson v. State, 32 N.E.3d 1173, 1177 (Ind. Ct.

      App. 2015) (quoting Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App. 2010),



      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 4 of 7
       trans. denied), trans. denied. The standard of review for this Court is de novo, but

       we will give “significant deference to the issuing magistrate’s determination and

       focus on whether reasonable inferences drawn from the totality of the evidence

       support the finding of probable cause.” Id. The issuing magistrate’s task in

       deciding whether to issue a search warrant is to simply “make a practical,

       common-sense decision whether … a fair probability exists that evidence of a

       crime will be found in a particular place.” Id. at 758-59. Finally, “doubtful

       cases should be resolved in favor of upholding the warrant.” Id. (quoting State

       v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013)).


[10]   Indiana Code section 35-33-5-2 provides, in relevant part, as follows:


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

                       (1) particularly describing:

                              (A) the house or place to be searched and the things to be
                              searched for
                              ...
                       (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
                              …
                       (3) setting forth the facts known to the affiant through personal
                           knowledge or based on hearsay, constituting the probable
                           cause.

[11]   McDade argues that the warrant application submitted by Detective Thorla

       used boilerplate language that failed to adequately describe the item to be

       searched and seized. The warrant application form has several auto-fill



       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 5 of 7
       prompts indicated by the term “PARCEL(S)” that Detective Thorla did not

       change to represent the specific details of the package in question. In one

       instance, Detective Thorla mentions the specific package, or the

       “PARCEL(S),” along with three other similar packages without designating

       specifically what package or packages out of the four packages would be

       searched. However, Detective Thorla does describe adequately the specific

       package at the top of the second page of the application as indicated above and

       this description was used when the search warrant was issued.


[12]   There is no reason to believe that the issuing magistrate lacked a “substantial

       basis for concluding that probable cause existed” based on the warrant

       application. Johnson v. State, 32 N.E.3d 1173, 1177 (Ind. Ct. App. 2015)

       (quoting Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App. 2010), trans. denied),

       trans. denied. The package was described in detail and the application provided

       a number of reasons that Detective Thorla might have probable cause to believe

       that the package contained something illegal. It is a reasonable inference that

       the term “PARCEL(S)” in the warrant application referred to the package

       described in detail on the second page of the application. It is not a reasonable

       inference that the term “PARCEL(S)” referred to some random package or

       packages that the detectives used as controls to ensure the accuracy of the

       certified K9’s positive indication of the package given that a detailed description

       had already been given.


[13]   In Rios v. State, we rejected a similar argument with similar facts. 762 N.E.2d

       153 (Ind. Ct. App. 2002). The officers in Rios were examining packages in a


       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 6 of 7
       shipping facility where they noticed a suspicious package similar to the one in

       question here. Id. at 156. One of the officers then placed the suspicious package

       next to a few others and a certified K9 alerted to the suspicious package. In the

       warrant application, the officer left much of the boilerplate language in the

       application alongside “facts particular to Rios’ package inserted in bold by a

       word processing program.” Id. at 160. We found the affidavit sufficient

       because it had facts “specific to Rios’ package as it describes the package and

       who found it … in detail, states that the dog sniffed the package and alerted to

       it.” Id.


[14]   Based on the ruling in Rios and the facts of the warrant application submitted by

       Detective Thorla, it is clear that the description Detective Thorla gave in the

       warrant application is sufficient to meet the requirements of Indiana Code

       section 35-33-5-2 and provides adequate facts to support the issuance of the

       warrant.


[15]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016   Page 7 of 7
