Stephenson v. State

BAKER, Judge,

concurring in result.

I fully concur in the majority's decision to reverse the trial court's denial of Stephenson's motion to suppress. However, I do so for a different reason. Specifically, I would reverse for the reason that Detective Jones's affidavit is flawed because Siegelin's credibility was not established.

Initially, I acknowledge that Detective Jones's probable cause affidavit may be read as making an assertion that is untrue. The affidavit states that Detective Jones had "personal knowledge" of Siegelin purchasing methamphetamine from Stephenson. State's Ex. 1. If the majority interprets this to mean that Detective Jones witnessed the Siegelin purchase, then its decision is undoubtedly correct.

However, if one construes Detective Jones's affidavit as relating what Siegelin told him about the purchase in order to establish Siegelin's credibility-a reasonable interpretation, given the State's argument about a statement against penal interests being inherently credible-then one need not decide whether Detective Jones made false statements. The only decision that need be made is whether Siegelin's credibility was established. In its appellate brief, the State argues that Siegelin's information indicated veracity because he admitted to obtaining methamphetamine from Stephenson's home. Ap-pellee's Br. p. 6. The State argued that such "declarations against penal interest can furnish a sufficient basis for establishing the credibility of an informant." Ap-pellee's Br. p. 6. Our supreme court stated as much in Houser v. State, 678 N.E.2d 95, 100 (Ind.1997).

At the suppression hearing, however, it was established that even though Siegelin stated that he had purchased methamphetamine from Stephenson, Siegelin was not in possession of methamphetamine when he approached the Jennings County Sheriff Department. Instead, Siegelin took Deputy Cardinal to Stephenson's home, where a small amount of methamphetamine was recovered. In my view, taking a police officer to a methamphetamine laboratory in which one does not have a pos-sessory interest is not against one's penal interest. Therefore, the State failed to show that the informant's eredibility was established, and so the warrant could not have been based on probable cause.

At oral argument, the State went on to intimate that whenever a person contacts police regarding criminal activity, that person is inherently making a statement against his penal interests because he subjects himself to a charge of false reporting. The State's reasoning is that such an action-because of the threat of a false reporting charge-automatically corroborates the hearsay contained in an affidavit. The State's position is contrary to Indiana *818Code section 35-83-5-2(b)(@Q), however, which requires that an affidavit based on hearsay must "contain information that establishes that the totality of the cireum-stances corroborates the hearsay." Under the totality of the cireumstances, a person's statement against penal interest may be sufficient. Newby v. State, 701 N.E.2d 593, 600 (Ind.Ct.App.1998). The magistrate issuing a warrant is to decide if under the totality of the cireumstances a warrant shall issue. Id. A statement against penal interest is not the "automatic corroboration" as the state contends, though it is apparent to me that statements against one's penal interest might very well influence a magistrate's decision.

Inasmuch as my colleagues and I read the affidavit differently, we come to the same conclusion by a different road.