                                                                                FILED
                                                                            Oct 24 2019, 8:55 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brandon E. Murphy                                          Curtis T. Hill, Jr.
      Muncie, Indiana                                            Attorney General of Indiana
                                                                 Samuel J. Dayton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Galen Byers,                                               October 24, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-246
              v.                                                 Appeal from the Jay Circuit Court
                                                                 The Honorable Brian D.
      State of Indiana,                                          Hutchison
      Appellee-Plaintiff.                                        Trial Court Cause No.
                                                                 38C01-1806-F2-13



      Tavitas, Judge.


                                                Case Summary

[1]   Galen Byers, on interlocutory appeal, appeals the trial court’s denial of his

      motion to suppress. We affirm.


      Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019                           Page 1 of 11
                                                        Issue

[2]   Byers raises one issue for our review, which we restate as whether the trial court

      erred in denying Byers’ motion to suppress because the warrant to search his

      home was allegedly constitutionally stale.


                                                       Facts

[3]   Marcie Vormohr was Byers’ neighbor in Portland, Indiana. In May 2018,

      Vormohr was mowing her yard when she noticed something in her yard; after

      an inspection, Vormohr realized it was a drone. 1 Vormohr noticed that the

      drone also had a computer drive attached. Vormohr purchased a reader for the

      device and plugged the device into her home computer to determine the owner

      of the drone.


[4]   Vormohr found video footage on the drive, that depicted a woman “tak[ing] out

      a white [ ] baggie, a small baggie with white powder substance in it, [and a] cut

      off straw, and [Vormohr] found that to probably be drugs.” Tr. Vol. II p. 8.

      Vormohr also identified Byers on the video, whom she recognized as her

      neighbor. After observing the video footage, Vormohr turned the device and

      the drone over to law enforcement due to the video’s contents and because she




      1
       Vormohr testified that she does not recall exactly when she found the drone; however, it would appear to
      have been some time between May 10, 2018, when the last of the video footage was filmed on the drone, and
      May 14, 2018, when police obtained the search warrant after reviewing the drone’s video footage.

      Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019                          Page 2 of 11
      previously had an issue with drones being flown over her property. 2 Vormohr

      testified that she could not remember the exact date she turned the materials

      over to law enforcement; however, she believed that it “may have been one or

      two days” after she discovered the drone. Id. at 7.


[5]   Officer Cody Jessee with the Jay County Sheriff’s Department testified that he

      received the drone and, on May 14, 2018, reviewed the video footage. Officer

      Jessee observed that the video’s last modified date was May 10, 2018, at 9:32

      a.m. Based on Officer Jessee’s review of the video footage, Officer Jessee

      believed the woman on the video was in possession of illegal substances.

      Officer Jessee also observed Byers flying the drone on the video. After

      reviewing the video footage, Officer Jessee obtained a search warrant for Byers’

      home.


[6]   A search of Byers’ home on May 14, 2018, revealed several drug paraphernalia

      items, including “snorting devices containing a powder like substance in them”;

      “several empty baggies containing a paw print sticker”; 3 an unlocked safe with

      “a scattered crystal like substance as well as a cut straw containing a crystal like

      substance.” Appellant’s App. Vol. II p. 13. In a locked safe, which officers

      opened, they discovered “a Glock 30 gen 4, .45 Cal[iber handgun]. . . . [and]




      2
       Vormohr was uncertain if it was Byers’ drone or another drone she had issues with previously. Vormohr
      and Byers previously had a discussion about Vormohr’s issues with drones being flown over her property;
      however, Byers indicated it was not his drone flying over Vormohr’s property.
      3
       Officers believed the paw print stickers were being placed on the baggies “as a possible brand name.”
      Appellant’s App. Vol. II p. 13.

      Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019                              Page 3 of 11
      four empty plastic baggies baring [sic] the paw print sticker;” “green plastic

      baggie with a crystal like substance,” which weighed .8 grams in its packaging

      and tested positive for methamphetamine when field tested. Id. at 13-14.

      Officers also found $160.00 in twenty-dollar bills in the safe and an “ink stamp

      and pad and stamp of a paw print” in Byers’ bedroom. Id. at 14.


[7]   In the living room, officers uncovered “several burnt foils which are used in the

      consumption of methamphetamine”; a “digital scale under the couch and a

      glass bowl,” which contained a “crushed crystal like substance and a cut red

      straw” that tested positive for methamphetamine when field tested. Id. Officers

      also found with “several feminine items,” three cut straws, and three plastic

      baggies “containing a residue.” Id. A search of the bathroom yielded $3,684.00

      of cash inside a makeup bag; a box containing baggies with a crystal like

      substance; and more cut straws. The three baggies weighed approximately 2.4

      grams in their packaging and tested positive for methamphetamine when field

      tested. Officers believed these items to belong to Jennifer Cook—a woman who

      was at Byers’ home when officers arrived.


[8]   Finally, officers found more burnt foils, burnt marijuana “roaches,” snorting

      devices, another digital scale; 4 and another 2.4 grams of methamphetamine “in

      its original packaging”; and another weapon loaded with a magazine and

      additional magazines upstairs. Id. Finally, Byers had $2,003.00 on his person.




      4
          These items are also believed to belong to Cook.


      Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019       Page 4 of 11
[9]    On June 13, 2018, the State charged Byers with Count I, dealing in

       methamphetamine, a Level 2 felony; Count II, possession of

       methamphetamine, a Level 4 felony; Count III, maintaining a common

       nuisance, a Level 6 felony; and Count IV, possession of marijuana, a Class B

       misdemeanor.


[10]   On October 18, 2018, Byers filed his first motion to suppress. On November 5,

       2018, Byers filed a motion to amend the motion to suppress, and the trial court

       granted the motion to amend on November 7, 2018. The amended motion to

       suppress sought to suppress “any evidence found as a result of law enforcement

       activity leading to and including a search of a drone” under the Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution. 5 Id. at 66. Byers argued that the search was improper

       under both constitutions because of the manner in which the drone came into

       possession of law enforcement and because the probable cause was stale.


[11]   The trial court held a hearing on Byers’ motion to suppress on November 29,

       2018. The trial court entered an order on December 18, 2018, and denied

       Byers’ amended motion to suppress, “declin[ing] to find that the four[

       ]intervening days necessarily make[] the evidence stale or that the search was

       unreasonable under these circumstances.” Appellant’s App. Vol. II p. 87. On

       January 4, 2019, Byers filed a motion to certify the trial court’s order for




       5
           On appeal, Byers does not assert an argument under the Indiana Constitution.


       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019                Page 5 of 11
       interlocutory appeal, which the trial court granted on January 7, 2019.

       The trial court also vacated the pending hearing dates and jury trial date

       pending the outcome of this interlocutory appeal. Our Court accepted

       jurisdiction over the interlocutory appeal on March 5, 2019.


                                                      Analysis

[12]   Byers argues that the trial court erred in denying his motion to suppress. Byers

       focuses his arguments on the officers’ use of the video drone footage to obtain a

       search warrant of Byers’ home. Byers specifically contends that the search

       warrant was constitutionally stale based on three specific facts of this case: (1)

       there was no evidence on the video that Byers himself used the alleged illegal

       substances; (2) there was only evidence of one-time possession and

       consumption of the alleged illegal substances; and (3) the search warrant

       was executed four days after the video depicting the use of the alleged illegal

       substances was filmed.


[13]           Our justice system entrusts the admission of evidence to the trial
               court’s sound discretion. We review a trial court’s denial of a
               defendant’s motion to suppress deferentially, construing
               conflicting evidence in the light most favorable to the ruling, but
               we will also consider any substantial and uncontested evidence
               favorable to the defendant. We defer to the trial court’s findings
               of fact unless they are clearly erroneous, and we will not reweigh
               the evidence. When the trial court’s denial of a defendant’s
               motion to suppress concerns the constitutionality of a search or
               seizure, however, it presents a question of law, and we address
               that question de novo.




       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019        Page 6 of 11
       Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014) (citations omitted). Here,

       Byers’ arguments focus on the Fourth Amendment issue of staleness.


[14]   “The Fourth Amendment to the United States Constitution and article 1,

       section 11 of the Indiana Constitution both require probable cause for the

       issuance of a search warrant. 6 Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct.

       App. 2008) (citations omitted). “Probable cause is ‘a fluid concept incapable of

       precise definition and is to be decided based on the facts of each case.’”

       Mehring, 884 N.E.2d at 376 (quoting Figert v. State, 686 N.E.2d 827, 830 (Ind.

       1997)). “In deciding whether to issue a search warrant, the issuing magistrate’s

       task 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

       evidence of a crime will be found in a particular place.” Id. “The general rule is

       that stale information cannot support a finding of probable cause. . . . Stale

       information only gives rise to a mere suspicion and not a reasonable belief,

       especially when the items to be obtained in a search are easily concealed and

       moved.” Raymer v. State, 482 N.E.2d 253, 255 (Ind. 1985). Because the issue of

       staleness is fact-specific, we compare Byers’ case to other Indiana cases.


[15]   In Breitweiser v. State, 704 N.E.2d 496 (Ind. Ct. App. 1999), officers requested a

       search warrant of the defendant’s home on February 25, 1997, based on




       6
        Byers does not assert an argument under the Indiana Constitution in his brief on appeal; however, for
       completeness, we note that probable cause is required under both the United States Constitution and the
       Indiana Constitution.

       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019                             Page 7 of 11
       marijuana found in the defendant’s trash can on February 10 and 17, 1997.

       Breitweiser, 704 N.E.2d at 498. The defendant argued that, “because there was

       an eight-day period between when the police last recovered marijuana plant

       fragments from his trash and the issuance of the warrant, the information

       obtained by the officers was stale and did not constitute probable cause.” Id. at

       498. Our Court ultimately concluded that, under the circumstances, there was

       probable cause for the issuance of a warrant.


[16]   In reaching the decision, our Court stated, based on the fundamental principles

       of search and seizure law requiring that search warrant applications must be

       timely, “the facts in support of the warrant must be so close to the time of the

       issue of the warrant as to justify a finding of probable cause at the time.” Id. at

       499. Our Court went on to note that, while the age of the information is a

       “critical factor” in determining probable cause, there is no “precise rule as to

       how much time may elapse between the obtaining of the facts upon which the

       search warrant is based and the issuance of the warrant.” Id. Therefore,

       “probable cause is not determined by merely counting the number of days

       between the occurrence of the facts relied upon and the warrant’s issuance,” but

       instead, the staleness is judged by “the facts and circumstances of each case.”

       Id.


[17]   Our Court distinguished the situation in Breitweiser—in which officers

       continually investigated the drug activity at the defendant’s residence and found

       evidence of drug activity on two separate occasions—from situations in which

       there is an isolated occurrence. Our Court stated that “the character of the

       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019        Page 8 of 11
       criminal activity under investigation is an important factor to consider. . . .” Id.

       at 500. Specifically, “[w]here an affidavit merely recites an isolated crime, as in

       Ashley[v. State, 241 N.E.2d 264 (Ind. 1968)], time between the occurrence and

       the issuance of the warrant will likely be crucial to a determination of probable

       cause.” Id.


[18]   In Ashley, our Supreme Court held:


               Although there can be no precise rule as to how much time may
               intervene between the obtaining of the facts and the issuance of
               the search warrant, in dealing with a substance like [marijuana],
               which can be easily concealed and moved about, probable cause
               to believe that it was in a certain building on the third of the
               month is not probable cause to believe that it will be in the same
               building eight days later. Therefore, since the affidavit only
               made a showing of probable cause existing on October 3, 1964,
               and not on October 11, 1964, when the search warrant was
               issued the search warrant was defective and it was error to deny
               appellant’s motions to quash the affidavit for the search warrant
               and to suppress the evidence thereunder seized.


       Ashley, 241 N.E.2d at 269.


[19]   Finally, in Huffines v. State, 739 N.E.2d 1093 (Ind. Ct. App. 2000), trans. denied,

       a panel of our Court reversed the trial court’s denial of the motion to suppress,

       holding:


               To reiterate, the police waited eight days to execute the search of
               Huffines’ home, the same number of days that elapsed in Ashley
               between the showing of probable cause and issuance of the
               search warrant. And here, as in Ashley, the warrant was based on
               a single, isolated drug transaction. There is no evidence of

       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019          Page 9 of 11
               repeated or ongoing criminal activity. The affidavit did not detail
               the amount of drugs that C.I. saw in Huffines’ home. Thus, we
               cannot know whether it was a large amount or only the amount
               that C.I. purchased.


       Id. at 1099; see also Tinnin v. State, 416 N.E.2d 116, 208-09 (Ind. 1981) (finding

       that the evidence to support probable cause that heroin was inside the

       defendant’s home was “at most three days old” and, thus, did not result in an

       illegal search).


[20]   Similarly to Ashley and Huffines, here, the search warrant was based on one

       occurrence—the drone video evidence of possession of the drugs. The time

       difference here, however, makes this case distinguishable. Specifically, the four-

       day time period between the activity and issuance of the warrant was half the

       time of the periods in Ashley and Huffines. Moreover, while we look at the date

       of the video footage to determine whether probable cause existed, some lapse

       can also be accounted for here because Vormohr was in possession of the drone

       for likely at least one of those days. And, although we acknowledge that the

       woman in the video handled the alleged substances, the video also shows

       another individual—a man who Vormohr testified was Byers—handling the

       drone moments later in the same and subsequent video recordings. Based on

       the facts and circumstances before us, we cannot say that a four-day period

       between the activity and the finding of probable cause renders the warrant

       constitutionally stale.




       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019       Page 10 of 11
                                                    Conclusion

[21]   The trial court did not err in denying Byers’ motion to suppress due to staleness

       under the Fourth Amendment. We affirm.


[22]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-246 | October 24, 2019    Page 11 of 11
