Leicht v. State

BAKER, Judge,

dissenting.

I respectfully dissent from the majority's holding that "there was a substantial basis upon which to conclude that there was probable cause to believe that evidence of trafficking in marijuana might be recovered at Leicht's residence and property." Op. p. --. Specifically, I believe that inasmuch as Bonnie was already apprehended for possession of marijuana, any statements she made regarding Leicht were not against her penal interest.

I would note that Newby v. State, 701 N.E.2d 598 (Ind.Ct.App.1998) compels a different outcome than that advanced by the majority. In that case, Steve Calloway was arrested for possession of marijuana and cocaine. Calloway told police officers that Newby was his source for drugs and agreed to work as an informant. Calloway gave police officers Newby's address, and the officers obtained a search warrant. Drugs were found at Newby's residence, as Calloway had contended, and he was arrested. Newby then filed a motion to suppress, alleging that the affidavit used to obtain the search warrant lacked probable cause. The trial court overruled Newby's motion and an interlocutory appeal ensued. The State argued that Calloway's declaration regarding his purchasing drugs from Newby constituted statements against Cal-loway's penal interest, thereby making them credible. We reversed, holding that Calloway was already "caught with drugs in his possession, and his decision to reveal his source to the police did not subject him to any additional criminal liability." Id. at 600. Moreover, we noted that neither of the police officers to whom Calloway spoke "corroborated facts relayed to them by Calloway that connected Newby to illegal activity" through personal observation or other techniques. Id. at 601.

Similar to the cireumstances in Newby, Bonnie told police about her drug supplier only after the police officers found marijuana in her home. Bonnie's decision to divulge her source did not subject her to enhanced criminal liability inasmuch as she was already under arrest for possession of marijuana. See id. at 600. The State claims that Bonnie's statements subjected her to criminal prosecution for conspiracy to deal in marijuana, but I maintain that our double jeopardy jurisprudence would not allow convictions for both possession of and conspiracy to deal in the same "crop" of marijuana found in her home. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring)) (holding that Indiana Constitution's double jeopardy prohibits "conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished."). Moreover, as in Newby, the police in this case did not corroborate Bonnie's statements through personal observation.

I also note that inasmuch as statements against penal interest may form the basis for an affidavit, the logic required to explain why Bonnie's statements are believable is fraught with peril. The anonymous *210tip of a citizen informant is not sufficiently trustworthy to issue a warrant unless his credibility has been established or the totality of the circumstances show that his statements are true. Ind.Code § 35-33-5-2(b). Bonnie's statements, according to the State's theory, are inherently believable because she is possibly subjecting herself to greater penalties. The difficulty with this reasoning is, however, that Bonnie was "caught red-handed" with marijuana in her home. The State's argument thus creates a Through-the-Looking-Glass scenario that even Lewis Carroll would envy: A criminal's "confession" that he purchased cocaine while in the Oval Office at the White House is somehow more believable than an anonymous tip that cocaine is being sold out of the abandoned house on the corner. Our criminal justice system is ill-served by such logic.

I would reverse the trial court's denial of Leicht's motion to suppress.

ORDER

The Appellee, by counsel, has filed a Verified Motion for Publication of Memorandum Decision. Counsel states that this Court's opinion clarifies the law and involves issues of substantial public importance, which meets the criteria as set out in Appellate Rule 65(A). Further, the decision provides guidance on what constitutes probable cause sufficient to warrant the issuance of a search warrant. Counsel prays for an order publishing this Court's October 7, 2008 Memorandum Decision.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. The Appellee's Verified Motion for Publication of Memorandum Decision is GRANTED, and this Court's opinion handed down on October 7, 2003, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.