MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Sep 30 2016, 9:02 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark J. Dove Gregory F. Zoeller
Dove & Dillon, P.C. Attorney General of Indiana
North Vernon, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William C. McCollum, September 30, 2016
Appellant-Defendant, Court of Appeals Case No.
40A01-1604-CR-718
v. Interlocutory Appeal from the
Jennings Superior Court
State of Indiana, The Honorable Gary L. Smith,
Appellee-Plaintiff Judge
Trial Court Cause No.
40D01-1512-CM-555
Crone, Judge.
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Case Summary
[1] An Indiana Department of Natural Resources (“DNR”) law enforcement
officer submitted an affidavit for a warrant to search William C. McCollum’s
residence and vehicles for evidence related to the illegal harvesting of ginseng.
The judge who reviewed the affidavit found probable cause to issue a search
warrant. The DNR officer and four other officers executed the warrant and
found incriminating evidence in McCollum’s home, and McCollum made
incriminating statements at the scene. The State charged McCollum with
several ginseng- and marijuana-related misdemeanors.
[2] McCollum filed two motions to suppress the evidence obtained during the
search. The trial court denied both motions. In this interlocutory appeal,
McCollum claims that the trial court erred, asserting that the search warrant
was invalid because the affidavit lacked sufficient indicia of probable cause, that
the good-faith exception to the exclusionary rule is inapplicable, and that his
statements must be suppressed under the fruit of the poisonous tree doctrine.
We agree and therefore reverse and remand for further proceedings consistent
with our decision.
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Facts and Procedural History 1
[3] In September 2015, DNR Officer Matthew Hicks submitted an affidavit for a
warrant to search McCollum’s North Vernon residence and vehicles for
evidence related to the illegal harvesting of ginseng. The judge who reviewed
the affidavit found probable cause to issue a search warrant, which Officer
Hicks and four other officers executed later that day. McCollum arrived at his
home with Thomas Hartwell and Robert Boyd shortly after the officers did.
Officer Hicks read the search warrant to McCollum and questioned him.
McCollum stated that he had driven Hartwell and Boyd to harvest ginseng and
had purchased ginseng from them that he planned to sell in Bloomington. The
officers found ginseng, marijuana, and paraphernalia in McCollum’s residence,
and McCollum showed them ginseng that he had stored in his neighbor’s shed.
Officer Hicks then read McCollum his Miranda rights while other officers
handcuffed him. The record does not indicate whether the officers searched
McCollum’s vehicles.
[4] In December 2015, the State charged McCollum with class B misdemeanor
purchasing ginseng without a license, class B misdemeanor aiding, inducing, or
1
We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise
narrative of the facts stated in accordance with the standard of review appropriate to the judgment and
should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind.
Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that
the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility
of the confidential informant” mentioned in the affidavit and has “either played word games with this court
or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs
have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct.
App. 1999), trans. denied (2000).
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causing harvesting of ginseng out of season,2 class B misdemeanor possession of
marijuana, and class C misdemeanor possession of paraphernalia. McCollum
filed two motions to suppress the evidence obtained during the search,
including the contraband and his statements. After a hearing, the trial court
denied both motions. This interlocutory appeal ensued. Additional facts will
be provided as necessary.
Discussion and Decision
Section 1 – The search warrant affidavit lacked sufficient
indicia of probable cause, and therefore the warrant was
invalid under the Fourth Amendment.
[5] McCollum claims that the trial court erred in denying his motions to suppress.
We review the denial of a motion to suppress in a manner similar
to other sufficiency matters. We do not reweigh the evidence,
and we consider conflicting evidence most favorable to the trial
court's ruling. However, unlike the typical sufficiency of the
evidence case where only the evidence favorable to the judgment
is considered, we must also consider the uncontested evidence
favorable to the defendant.
Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000) (citations omitted),
trans. denied.
2
Wild ginseng may be harvested only from September 1 through December 31. Ind. Code § 14-31-3-10; 312
Ind. Admin. Code 19-1-1(9).
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[6] McCollum first contends that the evidence seized during the search of his
residence should be suppressed because the search warrant was invalid under
the Fourth Amendment to the U.S. Constitution. 3 To generally deter law
enforcement officers from violating people’s Fourth Amendment rights, the
U.S. Supreme Court has created the exclusionary rule, which prohibits the
admission of evidence seized in violation of the Fourth Amendment. Reinhart
v. State, 930 N.E.2d 42, 48 (Ind. Ct. App. 2010). The Fourth Amendment
states,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
The warrant requirement is a principal protection against unnecessary
intrusions into private dwellings. Chiszar v. State, 936 N.E.2d 816, 825 (Ind. Ct.
App. 2010), trans. denied (2011). “A defendant bears the burden of
demonstrating the invalidity of a warrant.” Fry v. State, 25 N.E.3d 237, 245
(Ind. Ct. App. 2015), trans. denied.
[7] More specifically, McCollum argues that the search warrant was invalid
because Officer Hicks’s affidavit lacked sufficient indicia of probable cause.
3
McCollum does not mention or make any argument under Article 1, Section 11 of the Indiana
Constitution.
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“Probable cause has long been described as a fluid concept incapable of precise
definition. It is to be decided based on the facts of each case.” Figert v. State,
686 N.E.2d 827, 830 (Ind. 1997). “The level of proof necessary to establish
probable cause is less than that necessary to establish guilt beyond a reasonable
doubt.” Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). “Probable
cause means a probability of criminal activity, not a prima facie showing.” Fry,
25 N.E.3d at 244.
[8] The Indiana Supreme Court has stated,
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)). “The duty of the reviewing court is to determine
whether the magistrate had a ‘substantial basis’ for concluding that probable
cause existed.” Id. (citing Gates, 462 U.S. at 238-39). “‘[S]ubstantial 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 (quoting Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)). “‘Reviewing
court’ for these purposes includes both the trial court ruling on a motion to
suppress and an appellate court reviewing that decision.” Id. at 182. We
review the trial court’s substantial basis determination de novo. State v. Spillers,
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847 N.E.2d 949, 953 (Ind. 2006). We consider only the evidence presented to
the issuing magistrate – in this case, Officer Hicks’s affidavit – and not post hoc
justifications for the search. Jaggers, 687 N.E.2d at 182; see also Flaherty v. State,
443 N.E.2d 340, 343 (Ind. Ct. App. 1982) (“The issue … is whether the
affidavit itself, without additional information or testimony presented after the
search warrant is executed, alleges sufficient facts upon which the issuing
authority could have made an independent determination of probable cause.”).
[9] “[P]robable cause may be established by evidence that would not be admissible
at trial.” Jellison, 656 N.E.2d at 534. Such evidence may include hearsay,
which is an out-of-court statement offered to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless the
Evidence Rules or other law provides otherwise. Ind. Evidence Rule 802.
Indiana Code Section 35-33-5-2(a) provides that a search warrant affidavit must
particularly describe “the house or place to be searched and the things to be
searched for,” allege “substantially the offense in relation thereto and that the
affiant believes and has good cause to believe that … the things sought are
concealed there[,]” and set “forth the facts known to the affiant through
personal knowledge or based on hearsay, constituting the probable cause.” The
statute further provides,
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
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(2) contain information that establishes that the totality of the
circumstances corroborates the hearsay.
Ind. Code § 35-33-5-2(b). In Gates, the U.S. Supreme Court
indicated that the trustworthiness of hearsay for purposes 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 shown; or (4) the informant predicts conduct or
activities by the suspect that are not ordinarily easily predicted.
Depending on the facts, other considerations may come into play
in establishing the reliability of the informant or the hearsay.
Jaggers, 687 N.E.2d at 182.
[10] Officer Hicks’s affidavit reads in pertinent part:
I, Matthew Hicks being an officer with the [DNR] Law
Enforcement Division … have probable cause to believe that
certain properties constituting fruits, instrumentalities, and
evidence of the crime of: Theft under IC 35-43-4-2, Aiding,
Inducing or Causing an Offense under IC 35-41-2-4, Hunting
Ginseng without the consent of Landowner under IC 14-22-10-
1(3) and Harvesting Illegal Ginseng under 14-31-3-13, 312 IAC
19-1-8;[ 4] evidence of these crimes can be further substantiated at
the properties hereinafter described, is concealed in [McCollum’s
residence and vehicles and Boyd’s residence].
The property to be seized is described as follows: any and all
Ginseng or equipment related to the illegal digging and
4
The last two provisions relate to ginseng harvesting restrictions set by the DNR.
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harvesting of wild Ginseng, any storage devices which may
contain information related to the theft of ginseng or the trespass
in order to obtain, including: trail cameras, SD cards from trail
cameras, or cameras and computers that can potential [sic] house
the described information.
Your affiant has probable cause to believe that William
McCollum, Thomas Hartwell and Robert Boyd are collecting
ginseng, a monetarily valuable resource, without permission of
the landowner thus exerting unauthorized control over property
of another person, with intent to deprive the other person of any
parts of its value or use; committing theft. Your affiant believes,
with information gathered during this investigation that the
crime(s) mentioned above have continued and will continue
through the legal ginseng harvesting season. Information
obtained from a tracking devise [sic] placed on the vehicle of
William McCollum has demonstrated McCollum drives Boyd
and Hartwell to various locations throughout the region to
illegally dig ginseng, then later picks them up.
On 09/21/2015 information gathered from the tracking device
led to an arrest, in Ripley County, of Hartwell and Boyd for
Hunting Ginseng without Consent of the Landowner and
Harvesting Illegal Ginseng. During the interview Hartwell stated
he did not have permission to dig Ginseng on any of the
properties he had dug on. Hartwell stated that Boyd was digging
with him but knew nothing about ginseng or the locations they
had dug. Hartwell stated McCollum was just the driver and
McCollum stated he was too old to dig.[ 5] Hartwell, when asked
if he was the leader of the group, stated yes. He organized and
decided where to dig. Based on information obtained from
charges which led to Hartwell currently being on probation,
5
The record indicates that McCollum was born in 1945. Appellant’s App. at 3.
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Hartwell has been digging ginseng for forty years.[ 6]
Thomas Hartwell, in his plea agreement, is prohibited from
harvesting or possessing ginseng. Hartwell is in violation of the
following statutes/codes; Theft under IC 35-43-4-2, Hunting
Ginseng without the consent of Landowner under IC 14-22-10-1
(3) and Harvesting Illegal Ginseng under 14-31-3-13, 312 IAC 19-
1-8 Hartwell has also violated several of the terms of his
probation.
Robert Boyd, who Hartwell stated knows nothing about ginseng,
has turned in over twenty pounds of wet ginseng since
09/03/2015. Jean Klene, the owner of K & K roots [sic], stated
that when she saw the large amounts of ginseng Boyd was
selling, she knew Boyd was selling for Hartwell. Klene asked
Boyd if he was selling for Hartwell and Boyd smiled really big.
Boyd is in violation of the following statuettes [sic]/codes; Theft
under IC 35-43-4-2, Aiding, Inducing or Causing an Offense
under IC 35-41-2-4, Hunting Ginseng without the consent of
Landowner under IC 14-22-10-1 (3) and Harvesting Illegal
Ginseng under 14-31-3-13, 312 IAC 19-1-8.
William McCollum, the driver, stated he has driven Boyd and
Harwell [sic] ten times since the ginseng season opened and is in
violation of Aiding, Inducing or Causing an Offense under Ind.
Code § 35-41-2-4. McCollum enabled Hartwell and Boyd to
commit the above offenses and under the above statute is in
violation of the same crimes committed as Boyd and Hartwell;
Theft under Ind. Code § 35-43-4-2, Hunting Ginseng without the
consent of Landowner under IC 14-22-10-1 (3) and Harvesting
Illegal Ginseng under 14-31-3-13, 312 IAC 19-1-8.
6
The affidavit does not indicate who arrested Hartwell and Boyd or who interviewed Hartwell, Boyd, and
McCollum on September 21. At the suppression hearing, Officer Hicks testified that he “encountered”
Hartwell, Boyd, and McCollum on that date and that no one was taken into custody. Tr. at 34-35.
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Any and all ginseng harvested by Harwell [sic] is illegal based on
the terms of Hartwell’s probation. Boyd and McCollum, in
having involvement with Hartwell, are Aiding and Causing an
offense under IC 35-41-2-4.
Since 09/01/15 Boyd has sold over 20 pounds of ginseng.
Hartwell is prohibited from harvesting or possessing ginseng,
therefore, all of the ginseng dug in that timeframe is illegal. At
the current buying price, 20 pounds of ginseng would bring in
$2,000.00 wet or $2,660.00 dry. Based on the current buying
price it averages out to approximately $2,300.00 of illegal ginseng
that Boyd has sold making it a Level 6 Felony under IC 35-43-4-
2.
On 09/25/15 CI [confidential informant] stated Harwell [sic]
and Boyd have been digging every day since they were arrested
on 09/21/15 trying to make up for lost money. CI stated
McCollum has not been driving them but they have been
washing and drying the ginseng at McCollum’s house. CI stated
they are getting ready to sell a large amount in Bloomington
because the ginseng dealers pay more for ginseng there. CI stated
Boyd and McCollum know Hartwell is on probation and cannot
dig or possess ginseng. CI stated Hartwell does not keep ginseng
in his apartment because his girlfriend will not allow it.
CI has provided a great deal of information related to this case.
The information provided related to the location of the illegal
ginseng combined with the facts established, on 09/21/15, are
the foundation of this request.
Your affiant is applying for judicial authorization to search the
residence and vehicles of William McCollum … and the
residence of Robert Boyd ….
This affidavit is made for the sole purpose of obtaining a warrant
for search. Therefore, based on the facts that your affiant has
learned during this investigation and my training and experience,
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your affiant believes that I have probable cause to believe that
searching William McCollum’s residence and vehicles and
Robert Boyd’s residence will lead to the evidence of the violation
of ginseng laws and rules, and theft laws. Your affiant
respectfully requests the Court to issue a warrant for search.
Appellant’s App. at 213-16.
[11] The first three paragraphs of the affidavit are primarily recitations of the crimes
that McCollum, Hartwell, and Boyd allegedly committed and the suspected
whereabouts of evidence related to those crimes. As for Officer Hicks’s
statement that the tracking device placed on McCollum’s vehicle demonstrated
that he drove Boyd and Hartwell to illegally harvest ginseng, McCollum asserts
that such a device “cannot provide any information about who is driving the
vehicle; who the other occupants of the vehicle are; or what the occupants of
that vehicle were doing in the various locations to which it was tracked.”
Appellant’s Br. at 11. He further asserts that if Officer Hicks “had that
information, it had to be provided by yet another hearsay declarant whose
credibility has not been established.” Id. The State does not dispute these
assertions.
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[12] Regarding Hartwell’s statements, which are hearsay, McCollum contends,
“Assuming arguendo that driving a person to dig ginseng was a crime,[ 7] there is
nothing within the hearsay statement of Hartwell that would indicate that the
fruits of the instrumentalities of the violation of the ginseng laws would be
found at McCollum’s residence.” Appellant’s Br. at 8-9. We agree. At most,
Hartwell’s statements (including that McCollum was “just the driver,” which
McCollum himself admitted) suggest that any incriminating evidence would be
found in McCollum’s vehicles, which apparently either were not searched or
contained no contraband. We also agree with McCollum’s contention that
neither Boyd’s nor Klene’s statements, which are also hearsay, “incriminate
[him] in any way or provide any basis for a person to believe that evidence
regarding the alleged violation of the ginseng and theft laws would be found at
[his] residence.” Id. at 8. If anything, their statements suggest that
7
McCollum correctly observes that “[t]he digging of ginseng within season is a completely legal activity” and
that – except for the CI’s statements, which we consider below – “[n]othing in the affidavit alleges that [he]
was aware that Hartwell was digging ginseng at locations where he did not have permission” or that
“Hartwell was prohibited from digging or possessing ginseng by virtue of the terms of a previous probation
proceeding.” Appellant’s Br. at 8, Reply Br. at 8. Based on McCollum’s multiple contacts with Hartwell, a
reasonable inference could be drawn that McCollum knew that Hartwell’s activities were illegal. If
McCollum actually did not have such knowledge, then he could assert a mistake of fact defense. See Ind.
Code § 35-41-3-7 (“It is a defense that the person who engaged in the prohibited conduct was reasonably
mistaken about a matter of fact, if the mistake negates the culpability required for commission of the
offense.”).
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incriminating evidence would be found on Boyd’s, Hartwell’s, and/or Klene’s
property. 8
[13] This leaves us with the hearsay statements of the CI, who purportedly told an
unidentified law enforcement officer 9 that McCollum “has not been driving
[Hartwell] and Boyd but they have been washing and drying the ginseng at
McCollum’s house”; that “they [were] getting ready to sell a large amount in
Bloomington because the ginseng dealers pay more for ginseng there”; that
“Boyd and McCollum know that Hartwell is on probation and cannot dig or
possess ginseng”; and that “Hartwell does not keep ginseng in his apartment
because his girlfriend will not allow it,” which suggests that McCollum could
have kept the ginseng in his residence. Appellant’s App. at 215. McCollum
asserts that “nowhere within the affidavit does [Officer Hicks] make any
attempt to establish the trustworthiness of the hearsay information provided by
[the] CI in an effort to provide probable cause.” Appellant’s Br. at 9. Once
again, we agree. There is no indication that the CI had given correct
information in the past or that independent police investigation corroborated
the CI’s statements. Cf. Jaggers, 687 N.E.2d at 182. In fact, McCollum himself
8
Because we conclude that Hartwell’s, Boyd’s, and Klene’s statements do not suggest that incriminating
evidence would be found in McCollum’s residence, we need not address McCollum’s argument that the
affidavit does not establish their credibility. That said, to the extent the State asserts that Hartwell’s
statements are credible because they are against his penal interest, the affidavit’s details regarding the DNR’s
investigation and his arrest are so sparse that it is impossible to determine whether his statements “subject[ed]
him to any additional criminal liability” and thus demonstrated his credibility. Spillers, 847 N.E.2d at 957.
9
The State posits that “Officer Hicks knew the identity of the confidential informant and dealt with the
confidential informant face-to-face.” Appellee’s Br. at 21. Officer Hicks’s suppression testimony supports
this hypothesis, but the affidavit is silent on this point.
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purportedly told officers on September 21 that he had been driving Hartwell and
Boyd, which contradicts the CI’s statement. Moreover, there is nothing in the
affidavit to establish the basis for the CI’s knowledge of McCollum’s activities
other than the CI’s own statements. See Cartwright v. State, 26 N.E.3d 663, 669
(Ind. Ct. App. 2015) (finding informant’s hearsay statements insufficient to
establish probable cause based partly on this ground), trans. denied. And the
affidavit does not establish the accuracy of the CI’s predictions regarding
McCollum’s activities. Cf. Gates, 462 U.S. at 225-26 (affidavit established
accuracy of informant’s predictions regarding defendants’ activities). Viewing
the affidavit in its totality, we cannot say that the judge who issued the warrant
had a substantial basis for concluding that probable cause existed to search
McCollum’s residence for evidence of offenses related to the illegal harvesting
of ginseng. Therefore, we conclude that the search warrant was invalid under
the Fourth Amendment.
Section 2 – The good-faith exception to the exclusionary rule
is inapplicable, and therefore the evidence seized pursuant to
the search warrant must be suppressed.
[14] This does not end our inquiry, however, because “[e]xclusion 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.” Gerth v. State, 51 N.E.3d 368, 375
(Ind. Ct. App. 2016) (citing United States v. Leon, 468 U.S. 897, 920 (1984)). The
Leon court “cautioned that certain police conduct would not qualify for this”
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good-faith exception, including where the warrant was based on an affidavit so
lacking in indicia of probable cause as to render official belief in the validity of
the warrant entirely unreasonable. Jaggers, 687 N.E.2d at 184. Law
enforcement officers are reasonably charged with knowing the basic
requirements of Indiana Code Section 35-33-5-2. Id. at 186. Thus, Officer
Hicks should have known that establishing the CI’s credibility or corroborating
the CI’s hearsay statements was necessary. Brown v. State, 905 N.E.2d 439, 447
(Ind. Ct. App. 2009). The officer also should have known that the other
statements in the affidavit did not provide probable cause to search McCollum’s
residence. Therefore, we conclude that the officer’s reliance on the validity of
the warrant was not objectively reasonable. Accordingly, the good-faith
exception is inapplicable, and the evidence seized pursuant to the search
warrant must be suppressed. 10
Section 3 – McCollum’s incriminating statements must be
suppressed under the fruit of the poisonous tree doctrine.
[15] Finally, McCollum argues that his incriminating statements to Officer Hicks
must be suppressed under the fruit of the poisonous tree doctrine. 11 Our
supreme court has stated that “[t]his extension of the exclusionary rule bars
10
The State does not make a separate argument regarding the admissibility of the ginseng that McCollum
retrieved from his neighbor’s shed. Consequently, we do not consider that issue.
11
McCollum did not specifically raise this issue in his motions to suppress, but he did raise it in the proposed
findings that he submitted to the trial court. The trial court made no findings on this issue in its order, and
the State does not contend that McCollum has waived it.
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evidence directly obtained by the illegal search or seizure as well as evidence
derivatively gained as a result of information learned or leads obtained during
that same search or seizure.” Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013)
(citing, inter alia, Wong Sun v. United States, 371 U.S. 471, 485 (1963)). “The
question is if the derivative evidence ‘has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.’” Id. (quoting Wong Sun, 371 U.S. at 488). “In making this
determination, courts generally consider (1) the time elapsed between the
illegality and the acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official misconduct.”
Id. (citation and quotation marks omitted). “The defendant must first prove the
Fourth Amendment violation and that the evidence was a ‘fruit’ of that search;
the State must then show that the evidence may nevertheless be admitted.” Id.
[16] McCollum has proved that the search of his residence violated the Fourth
Amendment because Officer Hicks’s affidavit lacked sufficient indicia of
probable cause and that the officer’s reliance on the invalid warrant was not
objectively reasonable. McCollum argues that the warrant “was the only
reason for the officers to confront him on the day in question” and that Officer
Hicks’s questioning “would not have occurred absent the warrant.” Appellant’s
Br. at 13. The State offers no response to this argument. An appellee’s “failure
to respond to an issue raised in an appellant’s brief is, as to that issue, akin to
failing to file a brief.” Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002).
“This failure does not relieve us of our obligation to correctly apply the law to
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the facts in the record in order to determine whether reversal is required.
However, counsel for appellee remains responsible for controverting arguments
raised by appellant.” Id. (citation omitted). To prevail on this issue, McCollum
must establish only prima facie error. Id. “Prima facie means at first sight, on
first appearance, or on the face of it.” Id.
[17] The record establishes that Officer Hicks and four other officers arrived at
McCollum’s home to execute a search warrant based on an affidavit so lacking
in indicia of probable cause that Officer Hicks should have known that the
warrant was invalid. McCollum arrived shortly thereafter. According to
Officer Hicks, he asked McCollum “if he would accompany me up to the top of
the hill so I could ask him some questions[.]” Tr. at 12. The officer told
McCollum that he was “there to serve a search warrant on his house” and
“actually read him the search warrant.” Id. at 13. Office Hicks then questioned
McCollum about his activities with Hartwell and Boyd and searched the home,
in which he found ginseng, marijuana, and paraphernalia. Based on the
foregoing, we conclude that McCollum has made a prima facie showing that
his statements were obtained by exploitation of the illegal search warrant. Cf.
Cartwright, 26 N.E.3d at 671 (finding defendant’s post-arrest, post-Miranda
statements inadmissible as fruits of unconstitutional search based on “a warrant
issued on essentially uncorroborated hearsay from an anonymous informant”).
The State has made no contrary argument, and it is not our job to make one on
its behalf. Consequently, we reverse the denial of McCollum’s motions to
suppress and remand for further proceedings consistent with our decision.
Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016 Page 18 of 19
[18] Reversed and remanded.
Kirsch, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 40A01-1604-CR-718 | September 30, 2016 Page 19 of 19