FILED
May 02 2018, 7:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James H. Voyles, Jr. Curtis T. Hill, Jr.
Tyler D. Helmond Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Darring, May 2, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1706-CR-1426
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
The Honorable Peggy Ryan Hart,
Magistrate
Trial Court Cause No.
49G20-1408-F3-41089
Altice, Judge.
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Case Summary
[1] Christopher Darring brings this interlocutory appeal of the trial court’s denial of
his motion to suppress evidence obtained as the result of a search of his home.
Specifically, he contends that the probable cause affidavit used to secure the
search warrant contained false information and material omissions in reckless
disregard for the truth.
[2] We affirm.
Facts & Procedural History
[3] After 2:00 in the morning on August 22, 2014, Officer Dwayne May of the
Indianapolis Metropolitan Police Department (IMPD) was dispatched to 3132
W. 61st Street. He was responding to Darring’s 911 call indicating that another
man – later identified as Jason Holland, his next-door neighbor – was drunk
and trying to start an altercation with Darring. Officer May spoke with both
men briefly and learned that the argument was about money. Before leaving,
he instructed them to stop acting like children, work it out, and sober up.
[4] Around the same time the next morning, Holland called 911 to report that
Darring had shot him.1 Officer May was again dispatched to the scene. He
1
Darring had, in fact, shot at the ground near Holland’s feet and the bullet ricocheted and hit Holland in the
leg, causing a grazing injury.
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parked along the road between the two properties and immediately smelled the
odor of burnt marijuana after getting out of his vehicle. Officer May first spoke
with Holland, who was intoxicated and had an injury to his leg. Officer May
did not smell marijuana on Holland’s person.
[5] After speaking with Holland, Officer May walked up the driveway toward
Darring’s house. Darring came out the front door and met Officer May in the
driveway about twenty feet from the door. Officer May could smell the odor of
raw marijuana, which he believed was coming from the house. He also smelled
the odor of burnt marijuana on Darring’s person as they spoke. Darring
admitted shooting at the pavement to get Holland to leave his property. Officer
May then asked Darring for identification and the two walked onto the front
porch. Darring opened the storm door and then slightly opened the main door
before closing it and telling Officer May that he did not want him to come
inside. At that time, Officer May smelled the odor of marijuana coming from
inside the house. Officer May then placed Darring under arrest for criminal
recklessness for the shooting incident.
[6] Additional IMPD officers arrived at the scene to assist. Several noticed the
strong odor of raw marijuana near the house. Each time the exhaust fan on top
of the house kicked on, the marijuana smell became stronger outside.
Additionally, two potted marijuana plants were located directly behind
Darring’s shed and marijuana pieces – referred to as shake – were discovered
along the fence line between the Darring’s and Holland’s properties. Darring
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had several surveillance cameras around the outside of his house, one of which
Officer May took down at some point.
[7] Officer May called for a narcotics detective because he believed Darring had a
grow operation inside the house. IMPD Sergeant Stephan Crooke arrived on
the scene around 4:30 a.m. and spoke with Officer May and then Holland.
Holland told Sergeant Crooke about the incident and then informed him that he
had been in Darring’s house the prior week and observed thirty pounds of
marijuana. Holland indicated that he had been in Darring’s house several times
and had smoked marijuana with Darring inside the house before. Darring, who
was handcuffed outside, refused to speak with Sergeant Crooke. Sergeant
Crooke then knocked on the front door and walked around the house. In
addition to smelling a strong odor of raw marijuana near the shed and fence
line, Sergeant Crooke could smell it coming from inside the house. Based on
his training and experience Sergeant Crooke felt confident that there was
“probably a grow in there possibly, or a large amount” of raw marijuana inside.
Transcript Vol. III at 44.
[8] After gathering information from the scene, Sergeant Crooke returned to his
office to prepare a probable cause affidavit for a search warrant. The affidavit
written by Crooke read, in relevant part, as follows:
On 8/23/2014 at approximately 2:12 AM, Officer D. May and
Officer S Greene received a run to a person shot at 3132 W 61st
St. When Officer May arrived he spoke with the victim, a Jason
Holland. Holland stated that his neighbor, Chris Darring, had
shot at him with a semi automatic handgun while the two were
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in the yard between their residences. Chris Darring lives at 3132
W. 61st St and Jason Holland lives in the residence immediately
to the east.
Officer May went to…Darring’s residence, and knocked on the
door. Chris Darring answered the door and came onto the porch
to talk with officers. Officer May could immediately smell a
strong odor of what he recognized as marijuana coming from
inside the residence. Officer May has been in Law Enforcement
for 18 years. Officer May knows the odor of marijuana from his
training as a law enforcement officer and past experience
investigating numerous marijuana cases.
While assisting Officers were conducting their investigation into
the person shot report by looking for spent shell casings in the
yard between the two residences, Officer S Greene and Officer
Kazanauth identified two marijuana plants outside by the shed at
3132 W. 61st St.
I arrived on scene at approximately 430 AM. At that time I went
to 3132 W 61st St. and knocked on the door. I observed cameras
on the outside of the residence, and I could also smell the odor of
raw marijuana. I spoke with Chris Darring. I attempted to
obtain consent to search and Darring stated he wanted an
attorney.
Through my training and experience as a law enforcement
officer, I have become familiar with the odor of marijuana. I was
exposed to the sight and odor of both raw and burned marijuana
at the training academy and have participated in hundreds of
arrests for marijuana. I immediately knew, based on this training
and experience with the sight and odor of marijuana, that the
odor inside of the residence was raw marijuana.
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I also talked with the victim Jason Holland. Holland had a small
graze on his leg that appeared consistent with a graze wound
from a gun shot. Holland further said that he was in the
residence at 3132 W 61st St last week and observed about 30
pounds of marijuana inside the residence. Holland stated he is a
casual smoker of marijuana and knows marijuana. Holland
stated that he would buy marijuana from Chris Darring and they
were friends for awhile.
Based upon the facts and circumstances set forth above, I believe,
and have good cause to believe, that probable cause exists to
believe that there is a controlled substance, that is: Marijuana,
inside of the residence…which would constitute evidence of a
crime under the Indiana Uniform Controlled Substances Act.
Motion to Suppress Exhibits, Defendant’s Exhibit 27. The warrant was issued at
8:46 a.m.
[9] During the subsequent search of the residence, police recovered approximately
fifteen pounds of marijuana contained in heat-sealed packages and ball jars, as
well as cocaine, psilocybin mushrooms, and 155 Xanax pills. Officers also
found evidence of marijuana wax being manufactured in the kitchen and
garage. Additionally, glass smoking pipes, scales, a heat-sealing device, a
ledger, a safe, a surveillance system, and over $13,000 in cash were found. The
raw marijuana smell “overtook” Officer May when he walked inside the home
to perform the search. Transcript Vol. II at 185.
[10] On August 26, 2014, the State charged Darring with Level 3 felony dealing in a
schedule IV controlled substance, Level 5 felony dealing in marijuana, Level 6
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felony possession of cocaine, Class B misdemeanor possession of marijuana, 2
Class A misdemeanor possession of a controlled substance, and Class B
misdemeanor criminal recklessness. The State later amended the charging
information to elevate the criminal recklessness count to a Level 6 felony.
[11] In September 2015, Darring filed a motion to suppress the evidence found
inside his house, challenging the validity of the search warrant and, particularly,
the affidavit supporting the warrant. The trial court held a Franks hearing3 on
February 22, 2016, and September 19, 2016. The parties later filed written
arguments in support of their respective positions. Darring’s arguments were
laid out more precisely in the memorandum he filed with the trial court on
April 20, 2017. Specifically, he argued that the affidavit upon which the search
warrant was based contained material factual omissions that were made with
reckless disregard as to whether the omissions made the affidavit misleading.
Darring complained that Sergeant Crooke left out the following facts from the
affidavit: Officer May had responded to the same location the previous morning
to break up a dispute between Darring and Holland; marijuana shake was
discovered along the fence line; raw marijuana could be smelled along the fence
2
This count was alleged in a separate part to be a Level 6 felony on the basis of a prior conviction.
3
In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that an
evidentiary hearing is required “where the defendant makes a substantial preliminary showing that a false
statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause”. At
this hearing, referred to as a Franks hearing, the defendant is allowed to challenge the factual statements
made in a search warrant affidavit. Id.; see also Keeylen v. State, 14 N.E.3d 865, 870 n.3 (Ind. Ct. App. 2014),
clarified on reh’g, 21 N.E.3d 840 (2014), trans. denied.
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line and near the shed; and Officer May smelled marijuana throughout the
neighborhood upon exiting his vehicle on the night in question. In addition to
these omissions, Darring noted that due to a misunderstanding, the affidavit
alleged that Officer May talked with Darring after knocking on the front door
and smelled marijuana when the door was opened. Darring also emphasized
his expert witness’s testimony opining that no odor of raw marijuana would
have been emanating from the home at the time the officers were on the scene
because of the way the marijuana was packaged.
[12] In sum, Darring argued that if the correct and full information had been
included in the affidavit, “it may have suggested to the issuing magistrate that
the smell of marijuana may have been coming from somewhere outside the
house” rather than inside the residence and that “Holland’s statements were
motivated by ill-will toward Darring”. Appendix Vol. II at 57.
[13] On April 27, 2017, the trial court issued an order denying Darring’s motion to
suppress. Thereafter, Darring filed a motion to certify the ruling for
interlocutory appeal, which the trial court granted on June 19, 2017. This court
accepted jurisdiction of the appeal on August 7, 2017, pursuant to Ind.
Appellate Rule 14(B). The interlocutory appeal is now before us.
Discussion & Decision
[14] Our review of the denial of a motion to suppress evidence is similar to other
sufficiency issues. Keeylen, 14 N.E.3d at 871. We will affirm if there was
substantial evidence of probative value to support the trial court’s ruling. Id. In
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making this determination, we will not reweigh the evidence, and we will
consider conflicting evidence most favorably to the ruling. Id. Unlike other
sufficiency matters, however, we will consider uncontested evidence that is
favorable to the defendant. Id.
[15] Darring argues that the probable cause affidavit contained false information and
material omissions and was, therefore, submitted by Sergeant Crooke with a
reckless disregard for the truth. Further, Darring contends that adding back in
the material omissions and removing the false information results in the
affidavit lacking probable cause.
[16] 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. Keeylen, 14 N.E.3d at 871. The determination of
probable cause is based on the facts of each case and requires the issuing
magistrate 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.
[17] “A warrant is invalid where the defendant [establishes] by a preponderance of
the evidence that the affidavits used to obtain the warrant contain perjury by the
affiant, or a reckless disregard for the truth by him, and the rest of the affidavit
does not contain materials sufficient to constitute probable cause.” Jones v.
State, 783 N.E.2d 1132, 1136 (Ind. 2003) (citing Franks, 438 U.S. at 171-72).
“[M]istakes and inaccuracies of fact stated in a search or arrest affidavit will not
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vitiate the reliability of the affidavits so long as such mistakes were innocently
made.” Utley v. State, 589 N.E.2d 232, 236-37 (Ind. 1992).
[18] In addition to the inclusion of false or misleading testimony in the affidavit, the
defendant may also establish that the affiant omitted information “essential to a
finding of probable cause”. Keeylen, 14 N.E.3d at 872. In the case of an alleged
omission, the defendant must establish that the affiant engaged in deliberate
falsehood or reckless disregard for the truth in omitting the information and
show that probable cause would no longer exist if such omitted information
were considered by the issuing judge. Id. “Franks protects only against
omissions that are ‘designed to mislead, or that are made in reckless disregard
of whether they would mislead’”. Id. (quoting United States v. Colkley, 899 F.2d
297, 301 (4th Cir. 1990)).
[19] We turn first to the inaccurate information contained in the affidavit. There is
no dispute that Sergeant Crooke got it wrong when he indicated in the affidavit
that Officer May initially knocked on Darring’s door, Darring then came out to
talk with him on the porch, and Officer May immediately smelled a strong odor
of marijuana coming from inside. In fact, Darring met Officer May outside
about twenty feet from the door. A few minutes later, Officer May followed
closely behind as Darring went onto the porch and started to enter through the
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front door to obtain his identification, and Officer May then smelled the odor of
raw marijuana coming from inside the house.4
[20] As Darring conceded below, this mistake was due to a misunderstanding. We
can find no indication in the record that this misinformation in the affidavit was
made with reckless disregard for the truth or that the mistake was anything
other than innocently made. Nor do we believe this slight mischaracterization
of when Officer May smelled marijuana at the front door was critical to the
probable cause determination.5 Further, we find meritless Darring’s
unsupported assertion that Sergeant Crooke engaged in reckless disregard for
the truth when he signed the affidavit without having personal knowledge of the
events prior to his arrival and without Officer May’s review. See Utley, 589
N.E.2d at 236 (“as long as participating officers seeking the issuance of a search
warrant collectively have probable cause, their individual knowledge can be
imputed to the officer signing the affidavit in support of the search warrant”).
4
Both Officer May and Sergeant Crooke testified that they smelled the odor of raw marijuana coming from
inside the house. Darring directs us to his expert’s testimony opining that it would have been impossible for
the officers to attribute the smell to the house. We agree with the State that Darring’s argument in this regard
is an improper request to reweigh the evidence and judge the credibility of the witnesses.
5
We do not agree that this case is similar to Jaggers v. State, 687 N.E.2d 180 (Ind. 1997). In Jaggers, police
obtained a search warrant of the defendant’s home based on an anonymous tip and an officer’s testimony
that two marijuana plots were located near the defendant’s home. Actually, however, the plots were two and
six miles from the home. Our Supreme Court held that this mischaracterization, even if innocent, was
“critical when viewed in the factual context.” Id. at 185. The Court explained: “Placing the plots ‘near’
Jaggers’s residence implied a link between Jaggers and the plots that was not supported by the evidence. This,
in turn, implied involvement by Jaggers in marijuana trafficking that was otherwise not reasonably inferable
from the officer’s testimony.” Id. In the case at hand, the evidence establishes that Officer May smelled the
odor of marijuana at the front door when Darring opened it. We do not find critical to the probable cause
determination whether this occurred when Officer May first spoke with Darring or a few minutes later.
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[21] As for the omissions, we initially observe that Darring improperly asserts
several alleged omissions that he did not raise below. Most notably, Darring
argues for the first time on appeal that Sergeant Crooke failed to state in the
affidavit that the potted marijuana plants found behind the shed were in an area
where there was no fence dividing the properties and that it was not clear which
property the pots were actually on. Because Darring did not advance this basis
below, it is waived. See Merritt v. State, 803 N.E.2d 257, 261 (Ind. Ct. App.
2004) (issue waived where the State did not advance the argument in its
memorandum in opposition to the motion to suppress or at the suppression
hearing).
[22] We will limit our discussion to the omissions raised in Darring’s memorandum
to the trial court in support of his motion to suppress. Darring alleges the
following material omissions: 1) the previous day, Officer May had responded
to a disturbance between Holland and Darring; 2) marijuana shake was found
along the fence line; 3) officers smelled the odor of raw marijuana along the
fence line and near the shed; and 4) Officer May smelled the odor of marijuana
throughout the neighborhood upon exiting his vehicle on the night in question.
[23] Aside from noting these factual omissions, Darring makes no attempt to
establish that Sergeant Crooke made them deliberately to mislead the issuing
magistrate or with reckless disregard. Moreover, we cannot agree with Darring
that these factual omissions were material to the determination of probable
cause. See Query v. State, 745 N.E.2d 769, 772 (Ind. 2001) (“The typical
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formulation of ‘material’ facts is that they cast doubt on the existence of
probable cause.”).
[24] With respect to the first omission, Darring argues that the previous day’s police
run was critical information to a fair probable cause determination because it
would have “established for the issuing magistrate a motive for Holland to
accuse Darring.” Appellant’s Brief at 16. We agree with the State that this
evidence was immaterial because the animosity between Holland and Darring
was apparent from the fact that Darring shot at Holland.
[25] Additionally, we reject Darring’s undeveloped claim that Holland’s statements
to Sergeant Crooke should not have been included in the affidavit because his
credibility was unknown. Darring simply directs us to Jaggers for the
proposition that “uncorroborated hearsay from a source whose credibility is
itself unknown, standing alone, cannot support a finding of probable cause to
issue a search warrant.” Jaggers, 687 N.E.2d at 182. Unlike in Jaggers,
however, Holland’s identity was not unknown to the officers. See id. (observing
that use of information from anonymous informants presents heightened
reliability concerns because there is no possibility of criminal liability for filing a
false police report). Further, Holland lived next door to Darring, had just been
shot at and injured by Darring, and implicated himself in criminal activity when
speaking with Sergeant Crooke. Holland’s statements were properly included
in the probable cause affidavit and were just a small part of the evidence
supporting probable cause.
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[26] Finally, we turn to the omissions related to the odor and existence of raw
marijuana on the curtilage of Darring’s home, as well as the general odor of
marijuana Officer May detected upon exiting his vehicle. The affidavit
referenced the two marijuana plants near the shed but did not indicate that
marijuana shake was found along the fence line or that marijuana odor was
detected in these areas and generally in the neighborhood. Darring argues that,
if included, these facts would have caused the magistrate to “conclude that
there was not a reasonable ground to believe Darring’s residence was emitting
the odor.” Appellant’s Brief at 15. We cannot agree. The fact that there were
other sources of the odor does not negate the fact that both Officer May and
Sergeant Crooke smelled the odor of raw marijuana coming from inside the
house. In particular, Sergeant Crooke averred that he knocked on the door,
observed cameras on the outside of the home, and could smell the odor of raw
marijuana. Sergeant Crooke went on to state in the affidavit that based on his
training and experience, he immediately knew that the odor inside the residence
was raw marijuana.
[27] In sum, even if all of this omitted evidence had been included in the affidavit,
probable cause for the issuance of the search warrant would still exist.
Accordingly, the trial court properly denied Darring’s motion to suppress
evidence discovered as a result of the search.
[28] Affirmed.
Robb, J. and Vaidik, C.J., concur.
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