Feb 18 2016, 9:58 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jillian C. Keating Gregory F. Zoeller
Cathy M. Brownson Attorney General
Coots Henke & Wheeler, P.C.
Carmel, Indiana Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David W. Gerth, February 18, 2016
Appellant-Defendant, Court of Appeals Cause No.
29A02-1506-CR-693
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Daniel J. Pfleging,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D02-1309-FC-8054
Barnes, Judge.
Case Summary
[1] David Gerth appeals his convictions for Class C felony dealing in marijuana
and Class D felony maintaining a common nuisance. We reverse.
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Issue
[2] The restated issue before us is whether the trial court properly admitted
evidence recovered from Gerth’s property following the execution of a search
warrant.
Facts
[3] Sometime in August 2013, Detective Sergeant J. Michael Howell of the
Hamilton County Sheriff’s Department received information from a
confidential informant (“CI”) asserting that Gerth was selling marijuana from
his home in Westfield. Shortly after receiving this information, however, the CI
was “deactivated” because he had not completed all of the obligations required
of him before his case was adjudicated. Tr. p. 159-60. After the CI was
deactivated, “the investigation on David Gerth at that point stopped.” Id. at
143. However, the following month Detective Howell received an email from a
fellow officer relaying an anonymous tip that Gerth was dealing marijuana.
[4] On September 19, 2013, Detective Howell applied for and obtained a search
warrant for a canine drug sniff at Gerth’s residence and around the outbuildings
on his property. The probable cause affidavit submitted with the warrant
application stated:
In August of 2013 this affiant received information from a
confidential informant (CI) who had provided accurate
information in the past, that a white male named David Gerth
was selling marijuana. The CI advised that David Gerth resided
in Westfield, Hamilton County, Indiana and his residence was
located on 191st Street. The informant then identified David
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Gerth off a Hamilton County Jail bookin [sic] photograph.
David Gerth listed his address as 904 East 191st Street in
Westfield Indiana.
On September 18th 2013 I received an anonymous crime tip
received by Captain Brody Houston of the Westfield Police
Department from an unknown subject. The crime tip advised
that a subject by the name of David Gerth and Robert M. Gerth,
who reside at 811 East 191st Street, Westfield Indiana, were
growing and selling marijuana from numerous locations on the
property including the barn and residence.
On September 18th 2013 I conducted surveillance in the area of
East 191st Street Westfield, Indiana. I determined that there is
not a residence located at 811 East 191st Street as stated in the
anonymous tip. However, I did locate a residence at 904 East
191st Street, which is the residence that David Gerth had listed
on his book-in information. I located a vehicle in the driveway
which gave a return through BMV of belonging to David
William Gerth of 904 East 191st Street, Westfield, Hamilton
County, Indiana. This residence contained a barn on the
property as described in the anonymous tip.
Motion to Suppress Hrg., Ex. 1.
[5] Officers brought a dog to Gerth’s property, and it reacted positively to the
presence of drugs. Based on this information, Detective Howell obtained a
warrant to search the interior of Gerth’s residence and outbuildings. Inside
Gerth’s residence, officers found numerous indicia of marijuana dealing,
including marijuana in baggies and jars, marijuana plants, scales, seeds,
growing equipment, and a growing room in the basement.
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[6] The State charged Gerth with Class C felony dealing in marijuana, Class D
felony possession of marijuana, and Class D felony maintaining a common
nuisance. Gerth filed a motion to suppress all of the evidence found in his
residence, asserting that the initial search warrant issued for the canine sniff was
not supported by probable cause. The trial court denied the motion to suppress,
and the cause proceeded to bench trial. The trial court found Gerth guilty as
charged but entered convictions only for Class C felony dealing in marijuana
and Class D felony maintaining a common nuisance. Gerth now appeals.
Analysis
[7] Gerth contends the trial court erroneously admitted evidence discovered during
the search of his residence. Because Gerth did not seek an interlocutory appeal
of the denial of his motion to suppress but proceeded to trial, we review his
claim as one challenging the admission of evidence at trial. See Carpenter v.
State, 18 N.E.3d 998, 1001 (Ind. 2014). When ruling on the admission of
evidence at trial following denial of a motion to suppress, a trial court must
consider the foundational evidence presented at trial. Id. “It also considers the
evidence from the suppression hearing that is favorable to the defendant only to
the extent it is uncontradicted at trial.” Id. Trial courts are in the best position
to weigh the evidence and assess witness credibility, and we review its rulings
on admissibility for abuse of discretion and reverse only if a ruling is “‘clearly
against the logic and effect of the facts and circumstances and the error affects a
party’s substantial rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.
2013)). However, the ultimate determination of the constitutionality of a search
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or seizure is a question of law that we review de novo. Id. In the present case,
there was no uncontradicted evidence favorable to Gerth presented at the
suppression hearing—all of the relevant information was presented at the trial
and in the probable cause affidavit itself.
[8] Gerth argues that the two hearsay tips in the probable cause affidavit lacked
sufficient indicia of reliability to support the issuance of a search warrant.
When deciding whether to issue a search warrant, the issuing magistrate must
“‘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.’” 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, 2332 (1983)). On appeal, we must determine
whether the magistrate had a “‘substantial basis’” for concluding that probable
cause existed. Id. at 953 (quoting Gates, 462 U.S. at 238-39, 103 S. Ct. at 2332).
A substantial basis requires us to focus on whether reasonable inferences drawn
from the totality of the evidence support the determination of probable cause,
while giving significant deference to the magistrate’s determination. Id.
[9] Provisions governing searches and seizures found in the Fourth Amendment to
the United States Constitution and Article 1, Section 11 of the Indiana
Constitution are partially codified in Indiana Code Section 35-33-5-2, which
governs the information that must be included in an affidavit for a search
warrant. Id. An affidavit based on hearsay information must either:
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(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.
Ind. Code § 35-33-5-2(b).
The trustworthiness of hearsay for the purpose of proving
probable cause 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 activity by the suspect that is not ordinarily easily predicted.
Spillers, 847 N.E.2d at 954 (citing Jaggers v. State, 687 N.E.2d 180, 182 (Ind.
1997)). However, these examples are not exclusive and other considerations
may come into play when establishing the reliability of the hearsay. Id.
[10] The probable cause affidavit in this case stated that the CI “had provided
accurate information in the past . . . .” Motion to Suppress Hrg. Ex. 1. It is
true “that a statement in an affidavit declaring that the informant has previously
supplied valid information is sufficient to satisfy the statutory requirement of
facts as to the credibility of the informant.” Powers v. State, 440 N.E.2d 1096,
1105 (Ind. 1982), cert. denied. However, a conclusory statement such as that an
informant has “provided accurate information in the past,” without any
elaboration, is frowned upon. Motion to Suppress Hrg. Ex. 1. In Snover v.
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State, 837 N.E.2d 1042, 1050 (Ind. Ct. App. 2005), we held that a recitation in a
probable cause affidavit that “the informant is ‘a confidential source who had
provided information in the past which was determined to be credible and
reliable’” failed to provide sufficient evidence for the magistrate to gauge the
informant’s credibility. See also Wood v. State, 592 N.E.2d 740, 744 (Ind. Ct.
App. 1992) (“The bare conclusory and hearsay statement that affiant was told
by Officer X that the informant had provided reliable information will not
suffice for the requirement . . . that the affidavit ‘contain reliable information
establishing the credibility of the source.’”). By contrast, for example, in the
Powers case, the probable cause affidavit related the details of eight prior
occasions on which the informant had provided accurate information related to
drug trafficking. Powers, 440 N.E.2d at 1100. Here, the bare-bones statement in
the affidavit that the CI had provided accurate information in the past fails to
reveal whether such information had led to any arrests, or convictions, or
whether it was readily-obtainable information that anyone could have provided,
or how long ago or how many times the CI had provided information. We
generally have not regarded such generic statements to be sufficient to establish
an informant’s credibility.
[11] The issuance of the search warrant was also based on the later, completely
anonymous tip that Gerth was selling marijuana. There is absolutely no
indication of this informant’s credibility, even less than for the previously-
mentioned CI. The State contends nonetheless that the two informants
reciprocally corroborated each other’s information, thereby lending credibility
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to both of them. We disagree. For this proposition the State relies upon a line
of cases from the Eighth Circuit, which generally hold “that information
provided by one informant may be ‘corroborated with specific, consistent
details provided by [a] second informant,’ and that, in fact, the tips of two
informants may be ‘reciprocally corroborative, rendering their information
enough to support a finding of probable cause.’” United States v. Leppert, 408
F.3d 1039, 1041 (8th Cir. 2005) (citing United States v. Fulgham, 143 F.3d 399,
401 (8th Cir. 1998)); see also United States v. Jackson, 67 F.3d 1359, 1365 (8th Cir.
1995), cert. denied. However, all of these cases from the Eighth Circuit were
ones in which one informant with established credibility corroborated
statements provided by a second informant with untested credibility. None of
these cases held that two informants with insufficiently established credibility
could both be found reciprocally credible for giving the same information,
particularly where, as here, the information lacked detail or specifics. See
Leppert, 408 F.3d at 1041 (noting that one of the informants had given “reliable
information in the past that resulted in numerous successful prosecutions”);
Fulgham, 143 F.3d at 401 (noting that one of the informants had given reliable
information in the past “resulting in several arrests and the recovery of stolen
property and illegal substances”); Jackson, 67 F.3d at 1365 (noting that one of
the informants “had proven reliable in the past and . . . was not known ever to
have given false information”).
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[12] Additionally, there was no meaningful corroboration of the tips by police. The
only corroboration was confirmation of Gerth’s address,1 that his car was in the
driveway, and that there was a barn on property. It is well-settled that police
cannot rely upon facts “readily available to the general public” to corroborate
an informant’s statements. Cartwright v. State, 26 N.E.3d 663, 669 (Ind. Ct.
App. 2015) (holding confirmation that informant adequately described location
of defendant’s residence and that there was an RV in the yard was not adequate
corroboration), trans. denied; Ware v. State, 859 N.E.2d 708, 716 (Ind. Ct. App.
2007) (“Indiana courts have found that confirming merely that a suspect lives in
the residence and drives the vehicle identified by the informant is not adequate
to establish the informant’s credibility and therefore such confirmation does not
support a finding of probable cause.”), trans. denied. All of the purported
“corroboration” of the informants’ statements in this case came from
knowledge any member of the general public could have easily obtained.
[13] Furthermore, Detective Howell omitted information from the probable cause
affidavit regarding the CI’s credibility that we deem to be highly material.
Detective Howell failed to mention in the affidavit that the CI was deactivated
for failure to complete the requirements of his CI agreement before adjudication
of his underlying case shortly after providing his tip regarding Gerth.
Moreover, Detective Howell evidently believed that the CI’s tip was not worth
1
In fact, the anonymous tipster had provided incorrect information regarding Gerth’s address, although the
CI provided the correct address. Thus, confirmation of Gerth’s address did not constitute any corroboration
of the anonymous tipster’s information.
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following up on after the CI was deactivated; Detective Howell failed to
mention in the affidavit that he stopped investigating Gerth after the CI’s
deactivation. In other words, one could infer that law enforcement itself did
not consider the CI’s tip to be trustworthy enough to warrant further
investigation, but that fact was not disclosed to the magistrate.
[14] A probable cause affidavit must include all “material facts” known to law
enforcement, which includes facts that “‘cast doubt on the existence of probable
cause.’” Ware, 859 N.E.2d at 718 (quoting Query v. State, 745 N.E.2d 769, 772
(Ind. 2001)). Although it may not be practical to include all information related
to an investigation in a probable cause affidavit, “the best course for police to
follow is to include any information that could conceivably affect a probable
cause determination.” Id. at 719-20. As other courts have held, and we agree,
“police officers seeking a warrant should provide the magistrate or trial judge
with all information at their disposal concerning a source’s reliability.”
Galloway v. State, 772 S.E.2d 832, 836 (Ga. Ct. App. 2015). When material
information is omitted from a probable cause affidavit, such omission will
invalidate a warrant if (1) the police omitted facts with the intent to make the
affidavit misleading or with reckless disregard for whether it would be
misleading, and (2) the affidavit supplemented with the omitted information
would have been insufficient to support a finding of probable cause. Ware, 859
N.E.2d at 718. It has been recognized that omissions from a probable cause
affidavit are made with reckless disregard “if an officer withholds a fact in his
ken that ‘[a]ny reasonable person would have known that this was the kind of
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thing the judge would wish to know.’” Wilson v. Russo, 212 F.3d 781, 788 (3rd
Cir. 2000) (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)).
[15] Any reasonable person asked to issue a search warrant in this case would have
wanted to know that the CI was deactivated after giving the tip regarding Gerth
and that law enforcement stopped investigating Gerth for marijuana dealing
after that deactivation. Such information directly impacts assessment of the
CI’s credibility—which already was only supported by a bare-bones recitation
that he had provided accurate information in the past. Even if that recitation
had been sufficient, this reckless material omission of fact regarding the CI’s
credibility leads us to discount that credibility. We conclude that the two
uncorroborated tips from informants with insufficiently established credibility
failed to provide sufficient evidence of probable cause for issuance of the
warrant.
[16] This brings us to the question of good faith. Exclusion of evidence recovered
pursuant to a search warrant issued by a judge or magistrate is not required
when the officer obtaining the warrant has acted in objective good faith and
within the scope of the warrant. United States v. Leon, 468 U.S. 897, 920, 104 S.
Ct. 3405, 3419 (1984). The good faith exception to the exclusionary rule has
been codified in Indiana. The exception applies to evidence obtained by a law
enforcement officer if:
(1) it is obtained pursuant to:
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(A) a search warrant that was properly issued upon a
determination of probable cause by a neutral and detached
magistrate, that is free from obvious defects other than
nondeliberate errors made in its preparation, and that was
reasonably believed by the law enforcement officer to be
valid; or
(B) a state statute, judicial precedent, or court rule that is
later declared unconstitutional or otherwise invalidated;
and
(2) the law enforcement officer, at the time he obtains the
evidence, has satisfied applicable minimum basic training
requirements established by rules adopted by the law
enforcement training board under IC 5-2-1-9.
Ind. Code § 35-37-4-5(b).
[17] “The good faith exception cannot be so broadly construed as to obliterate the
exclusionary rule.” Newby v. State, 701 N.E.2d 593, 602 (Ind. Ct. App. 1998).
“Police officers have a duty and obligation of full and fair disclosure of all
material facts when applying for a warrant.” Hayworth v. State, 904 N.E.2d 684,
698 (Ind. Ct. App. 2009). “To trigger the exclusionary rule, police conduct
must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice
system.” Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702 (2009).
“[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent
conduct, or in some circumstances recurring or systemic negligence.” Id.
Police cannot rely on the good faith exception to the exclusionary rule if they
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have engaged in deliberate, reckless, or grossly negligent conduct in preparing a
probable cause affidavit. Hayworth, 904 N.E.2d at 698-99; see also United States
v. Simmons, 771 F. Supp. 2d 908, 926-27 (N.D. Ill. 2011).
[18] We have already held that Detective Howell recklessly omitted material facts
regarding the CI’s credibility from the probable cause affidavit. This is conduct
that can and should be deterred by the exclusionary rule. See Hayworth, 904
N.E.2d at 699. Thus, it would be inappropriate in this case to apply the good
faith exception to the exclusionary rule.2 The evidence recovered from Gerth’s
residence following issuance of the original search warrant for the canine sniff
should have been suppressed and not introduced into evidence. The State does
not and cannot argue that admission of that evidence was harmless error.
Conclusion
[19] The probable cause affidavit failed to include sufficient evidence of probable
cause to support issuance of the search warrant, particularly when the omitted
material information regarding the CI’s credibility is considered. And in light
of that recklessly omitted information, we conclude that application of the
exclusionary rule is warranted and the good faith exception to that rule is not.
2
The State suggests that because Detective Howell initially sought a warrant only for a canine sniff of
Gerth’s residence and not a search of the interior of the residence, it indicates good faith. This would seem to
imply that there was some lower level of probable cause needed to justify the canine sniff, but that would be
contrary to the holding of Florida v. Jardines, -- U.S. --, 133 S. Ct. 1409 (2013) (holding that canine sniff to
investigate a home and its immediate surroundings is a “search” for Fourth Amendment purposes).
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The trial court erred in introducing the evidence recovered from Gerth’s
residence into evidence. We reverse Gerth’s convictions.
Reversed.
Robb, J., and Altice, J., concur.
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David W. Gerth v. State of Indiana
Combined Opinion