                                                                              Jun 12 2015, 5:53 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                         Mark Small
      Attorney General of Indiana                                Indianapolis, Indiana
      Brian Reitz
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                         June 12, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                62A01-1406-CR-00268
              v.                                                Appeal from the Perry Circuit Court,
                                                                The Honorable Lucy Goffinet, Judge,
      William F. Stevens,                                       and the Honorable Karen A. Werner,
                                                                Magistrate
      Appellee-Defendant
                                                                Trial Court Cause No.
                                                                62C01-1401-FD-00058




      Mathias, Judge.

[1]   The State of Indiana (“the State”) appeals the trial court’s order granting

      William Stevens’s (“Stevens”) motion to suppress evidence obtained pursuant

      to his warrantless arrest. The State presents a single issue for review, namely,

      whether the trial court abused its discretion in concluding that law enforcement




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      lacked probable cause to arrest Stevens after Stevens attempted to purchase

      pseudoephedrine at a drug store.

[2]   We reverse and remand.


                                     Facts and Procedural History

[3]   On January 23, 2014, after checking the pseudoephedrine purchase logs of local

      drug stores, Perry County chief deputy sheriff Daymion Marsh (“Deputy

      Marsh”) learned that Stevens, along with several other people, had made

      suspicious purchases of pseudoephedrine that had “caused a scene” of some

      sort the day before at Werner Drug Store in Tell City, Indiana. Tr. p. 10.

      Deputy Marsh performed criminal history checks on the purchasers using the

      Indiana Data and Communication System (“IDACS”). The results of the check

      revealed that Stevens’s criminal history included a Florida conviction labeled in

      IDACS as “Poss Meth W Intent to Sell Manufacture Deliver.” Tr. Ex. Vol., Ex.

      1, pp. 16-17.

[4]   Indiana State Police Trooper Howard Lytton (“Trooper Lytton”) also reviewed

      Stevens’s criminal history record. Based on the information in the record,

      Deputy Marsh and Trooper Lytton believed it was illegal for Stevens to

      purchase pseudoephedrine pursuant to Indiana Code section 35-48-4-

      14.5(h)(1)(a), which makes it a Class D felony for a person convicted of dealing

      in methamphetamine to knowingly or intentionally possess pseudoephedrine.


[5]   Deputy Marsh contacted the Perry County prosecutor’s office to discuss

      Stevens’s criminal history, his recent pseudoephedrine purchase, and Deputy

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      Marsh’s plan to arrest Stevens.1 While he was speaking with the prosecutor’s

      office, Deputy Marsh learned that Stevens had arrived at Werner Drug Store

      again and was attempting to purchase more pseudoephedrine. Deputy Marsh

      went to the drug store and arrested Stevens for possession or purchase of a

      precursor by a methamphetamine user. Deputy Marsh did not Mirandize

      Stevens at the scene, even after his arrest. While still at the drug store, Deputy

      Marsh asked Stevens whether he had any drugs on his person, and Stevens

      admitted that he had approximately one gram of methamphetamine in his

      pocket.


[6]   Stevens’s fiancée, Holly Newgard (“Newgard”), was at the drugstore with

      Stevens and had also attempted to purchase some pseudoephedrine. After

      Stevens was arrested, other officers at the scene interviewed Newgard and

      obtained written consent from her to search the residence she shared with

      Stevens. During the search of Stevens’s and Newgard’s house, in which Deputy

      Marsh participated, officers discovered a burnt piece of aluminum foil, two

      hollowed-out pen bodies, hypodermic needles, a smoking pipe, and a spoon

      containing an unidentified white residue.

[7]   Deputy Marsh then drove to the Tell City Police Department, where Stevens

      was being held, and read Stevens a Miranda warning. During his interview with

      Deputy Marsh, Stevens admitted that the house in which the paraphernalia was




      1
        The record is unclear as to what action, if any, the prosecutor’s office advised Deputy Marsh to take with
      regard to Stevens’s arrest.

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      found was his house and that the paraphernalia itself belonged to him, not to

      Newgard. During the interview, Deputy Marsh noticed marks on Stevens’s arm

      that looked like injection marks from hypodermic needles. Stevens stated that

      the marks came from injecting methamphetamine.

[8]   On January 28, 2014, the State charged Stevens with Class D felony possession

      of a precursor by a methamphetamine offender, Class D felony possession of

      methamphetamine, Class D felony unlawful possession of a syringe, Class D

      felony maintaining a common nuisance, and Class A misdemeanor possession

      of paraphernalia.


[9]   Stevens filed a motion to suppress on March 21, 2014, arguing no probable

      cause justified his arrest at Werner Drug Store because the Florida conviction

      that served as the basis for the arrest was in fact not for dealing

      methamphetamine but instead for dealing Alprazolam, a prescription

      medication more commonly known as Xanax. He argued that, as a result of his

      illegal arrest, any evidence collected after his arrest, including the

      methamphetamine he had in his pocket, the evidence found inside his home,

      and the statements he made to Deputy Marsh, should be suppressed. The trial

      court held a hearing on the motion on May 1, 2014. On June 6, 2014, the trial

      court issued an order granting Stevens’s motion and ordering that “all items

      seized and all statements made by the Defendant” be suppressed. Id. at 65. The

      State filed a motion to dismiss the cause on June 10, 2014, which the trial court

      granted the same day.



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[10]   The State now appeals.2


                                           Discussion and Decision

[11]   The State appeals the trial court’s order granting Stevens’s motion to suppress

       the evidence obtained pursuant to Stevens’s warrantless arrest. We review a

       trial court’s order granting a motion to suppress evidence to determine

       “whether the record discloses substantial evidence of probative value that

       supports the trial court’s conclusions.” State v. Washington, 898 N.E.2d 1200,

       1203 (Ind. 2008) (citations and quotations omitted). We do not reweigh

       evidence. Id. The State must, on appeal from a negative judgment, show that

       the trial court’s ruling on the motion to suppress was contrary to law. Id.


[12]   As a general rule, the Fourth Amendment prohibits unreasonable warrantless

       searches and seizures. U.S. Const. amend. IV. The Supreme Court of the

       United States has explained that “the line is crossed when the police, without

       probable cause or a warrant, forcibly remove a person from his home or other

       place in which he is entitled to be and transport him to the police station, where

       he is detained, although briefly, for investigative purposes.” Hayes v. Florida, 470

       U.S. 811, 816 (1985). However, “the warrantless arrest of an individual in a

       public place upon probable cause [does] not violate the Fourth Amendment.”

       United States v. Santana, 427 U.S. 38, 42 (1976).




       2
         We held oral argument in this appeal on April 24, 2015, at Taylor University in Upland, Indiana. We
       extend our gratitude to the faculty, staff, and students for their hospitality and commend counsel for the
       quality of their written and oral advocacy.


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[13]   Article 1, Section 11 of the Indiana Constitution is nearly identical in text to the

       Fourth Amendment, but Indiana courts have developed a distinct approach to

       determining the reasonableness of searches and seizures. Duran v. State, 930

       N.E.2d 10, 17 (Ind. 2010). The legality of a governmental search under Article

       1, Section 11 turns on an evaluation of the reasonableness of the police conduct

       under the totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359

       (Ind. 2005). The reasonableness of a search or seizure is determined by

       balancing (1) the degree of concern, suspicion, or knowledge that a violation

       has occurred; (2) the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities; and (3) the extent of law

       enforcement needs. Id. at 361.


[14]   The remedy for a Fourth Amendment or Article 1, Section 11 violation is

       exclusion of the evidence directly obtained and also any evidence derivatively

       obtained as a result of the unlawful search or seizure. See Gyamfi v. State, 15

       N.E.3d 1131, 1136 (Ind. Ct. App. 2014) (“The fruit of the poisonous tree

       doctrine . . . bars the admissibility in a criminal proceeding of evidence obtained

       in the course of unlawful searches and seizures.”) (citation and quotation marks

       omitted).

[15]   Here, the State argues that because “law enforcement officers had no reason to

       doubt the accuracy of the criminal history record and the information available

       to them at the time of Stevens’s arrest,” Appellant’s Br. at 9, the fact that

       Stevens’s criminal history record incorrectly indicated that he had a prior

       conviction for dealing in methamphetamine does not negate the existence of

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       probable cause to arrest Stevens when he attempted to buy pseudoephedrine on

       January 23, 2014. The State emphasizes that if Stevens had had a conviction

       within seven years for dealing in methamphetamine, his purchase of

       pseudoephedrine would have been a Class D felony under Indiana Code

       section 35-48-4-14.5(h)(1)(A). The State argues that it was reasonable for

       officers to rely on information generated by IDACS and that “retrospect is not

       the proper lens in which to view probable cause.” Id. at 9.


[16]   Stevens, on the other hand, argues that officers should not have merely relied

       on the criminal history record without conducting further research into the

       nature of Stevens’s conviction. Citing Florida Statutes Annotated section

       893.13, he notes that the actual title3 of the Florida statute under which Stevens

       was convicted does not contain any reference to possessing or dealing

       methamphetamine.4 He contends that before arresting him, officers should have

       (1) contacted the prosecutor’s office to confirm that the criminal history entry

       was accurate or (2) accessed the Florida statute online to confirm that Stevens

       was convicted of a crime involving methamphetamine before arresting him.


[17]   The Fourth Amendment and Article 1, Section 11 of the Indiana Constitution

       require that a warrantless arrest be justified with probable cause. Van Winkle v.

       State, 764 N.E.2d 258, 264 (Ind. Ct. App. 2002), trans. denied. Probable cause to


       3
        The body of the statute, however, does contain references to the manufacture and possession of
       methamphetamine, as well as other drugs. This information was not included in Stevens’s IDACS records.
       See F.S.A. 893.13(1)(g)
       4
         The actual title of the statute section is “Prohibited acts; penalties.” F.S.A. 893.13. The title of the statute
       chapter is “Drug Abuse Prevention and Control.” F.S.A. 893.

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       arrest exists where the facts and circumstances within the knowledge of an

       officer are sufficient to warrant a belief by a person of reasonable caution that

       an offense has been committed and that the person to be arrested committed it.

       Id. at 264-65. Whether evidence is sufficient to meet the probable cause

       requirement is determined on a case-by-case basis. Id. at 265. “[B]ecause the

       situations that officers face ‘in the course of executing their duties are more or

       less ambiguous,’ probable cause allows for reasonable mistakes by the officer.”

       United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000) (quoting Gerstein v.

       Pugh, 420 U.S. 103, 112 (1975)). The existence of probable cause is a fact-

       sensitive determination. Id.


[18]   Our supreme court has held that

                  Where police officers in the street act in good faith reliance[5] on a
                  dispatch from their own or another police agency that a crime
                  has been committed, there is no need to show the source of the
                  dispatcher’s information or the reliability of the dispatcher’s
                  informant. It is ludicrous to assert the police officer on the street
                  must be provided with some assurance the dispatcher at the
                  police station has not merely fabricated tales about a crime that
                  was, in fact, never committed and a description of suspects that
                  do not exist.

       Moody v. State, 448 N.E.2d 660, 663 (Ind. 1983) (internal citations omitted).6




       5
         Our review of the case law reveals that the courts have treated “good faith reliance” in probable cause
       determinations differently than the “good faith” exception to the exclusionary rule. The good faith
       exclusionary rule exception applies in situations where a warrant contains a defect and the officer reasonably
       relies on the information in the warrant.
       6
           However, see State v. Glass, 769 N.E.2d 639, 643 n.6 (Ind. Ct. App. 2002):


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[19]   We find Moody to be controlling in this case and conclude that under both the

       Fourth Amendment and Article 1, Section 11, it was reasonable for law

       enforcement officers to believe that the information they received from IDACS,

       namely that Stevens had a prior conviction for dealing in methamphetamine,

       was accurate. The system is one on which officers regularly rely, and nothing

       indicates that officers are or should be expected to confirm or research data

       generated by IDACS, particularly absent any evidence of intentional

       misconduct with respect to use or maintenance of the system. This reasonable

       belief was sufficient to provide probable cause to believe that Stevens was

       committing a crime by attempting to purchase pseudoephedrine. See Row v.

       Holt, 864 N.E.2d 1011 (Ind. 2007) (county deputy sheriff reasonably believed he

       had probable cause to arrest arrestee without warrant, and even if the trier of

       fact concluded that the arrest was not based on probable cause because

       information communicated to deputy sheriff by another officer was incorrect);

       Wessling v. State, 798 N.E.2d 929, 935 (Ind. Ct. App. 2003) (“Where there is a

       police-channel communication to the arresting officer, he acts in good faith

       thereon, and such knowledge and information exists within the department,

       then the arrest is based on probable cause.”); Jenkins v. Keating, 147 F.3d 577,

       585 (7th Cir. 1998) (“When an officer has received information from some

       person—normally the putative victim or an eyewitness—who it seems


             We are cognizant of our supreme court’s statement: ‘Where police officers in the street act in
             good faith reliance on a dispatch from their own or another police agency that a crime has been
             committed, there is no need to show the source of the dispatcher’s information or the reliability
             of the dispatcher's informant.’ Moody v. State, 448 N.E.2d 660, 663 (Ind. 1983). To the extent
             the quoted language suggests that every call to a dispatcher is sufficient in itself to satisfy the
             Fourth Amendment, it paints Fourth Amendment jurisprudence with too broad a brush.

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       reasonable to believe is telling the truth, he has probable cause to arrest the

       accused perpetrator.”) (internal quotation and quotation marks omitted).

[20]   Therefore, under the unique facts and circumstances before us, we conclude

       that the trial court abused its discretion in granting Stevens’s motion to

       suppress. We accordingly reverse the trial court’s order suppressing the

       evidence recovered as a result of Stevens’s warrantless arrest and remand this

       matter for further proceedings consistent with this opinion.


[21]   Reversed and remanded for further proceedings consistent with this opinion.


       Crone, J., and Bradford, J., concur.




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