ATTORNEY FOR APPELLANT
Terry R. Curry
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Andrew Hedges
Thomas D. Perkins
Deputy Attorneys General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
LOUIS DAVID QUERY )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0008-CR-00502
v. )
) Indiana Court of Appeals
STATE OF INDIANA ) Cause No. 49A02-9910-CR-733
)
Appellees (Plaintiff Below). )
__________________________________________________________________
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Z. Mae Jimison, Judge
Cause No. 49G20-9811-CF-176141
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
April 11, 2001
BOEHM, Justice.
This case deals with the circumstances under which the State must
obtain a new search warrant if information undermining the probable cause
in that warrant is discovered by the police after the warrant has been
granted but before it has been executed. We hold that where the State
learns that a material fact establishing the probable cause underlying a
search warrant is incorrect, the State is obliged to inform the issuing
magistrate of the new facts and, if it fails to do so, the warrant is per
se invalid. Information is material if it might affect either the issuance
of the warrant, or the scope of the warrant. We find this case presents an
extremely unusual example of an immaterial change. Although the new
information undermined the crime suggested by the information supplied to
the magistrate, it also provided probable cause for a second crime, and, if
a second search warrant had been issued, the police would have been
authorized to search the same location for virtually identical items.
Factual and Procedural Background
Greenwood police officer Matthew Fillenwarth worked with a
confidential informant on October 31, 1998, to arrange a purchase of
methamphetamine from Louis David Query. The informant was supervised by
Fillenwarth as he purchased a white powdery substance from Query.
Fillenwarth conducted two field tests to determine the nature of the
substance. The first test was negative for controlled substances and the
second indicated that the substance contained methamphetamine.
Based on Fillenwarth’s affidavit of probable cause, a magistrate
issued a search warrant for Query’s apartment on November 2, 1998. On
November 3, Fillenwarth learned that a laboratory test had determined that
the substance purchased from Query did not contain any controlled
substance. That day, Fillenwarth consulted with a Johnson County deputy
prosecutor and was assured that the warrant was still good. On November 4,
the warrant was executed and eighty-one grams of uncut cocaine were found
in Query’s apartment. No methamphetamine was found.
Query was charged with dealing in cocaine and possession of cocaine.
Query moved for suppression of the cocaine. The trial court denied the
motion, reasoning that, although the issuing magistrate should have been
informed that some of the information contained within the probable cause
affidavit was incorrect, the fact that the officer failed to do so did not
automatically invalidate the warrant. Instead, the trial court stated that
it must look to the effect that the inclusion of the lab report would have
had on the existence of probable cause. The trial court held that the
information in the lab report would have provided probable cause that Query
was engaged in dealing in a look-alike substance, a Class D felony, and
therefore “[i]t would be reasonable to believe that there would be evidence
of that crime located in the apartment, such as, powder similar to the
powder represented to be methamphetamine, similar packaging materials, the
supplied currency.”
On appeal, the Court of Appeals noted that it is the issuing
magistrate’s role to determine whether or how new information affects the
finding of probable cause and the validity of a warrant. Because the
magistrate here did not have access to “full information,” the court held
that the search warrant lacked a sufficient showing of probable cause that
Query was engaged in dealing in a look-alike substance. Query v. State,
725 N.E.2d 129, 132 (Ind. Ct. App. 2000). The court also held that the
“good faith exception” did not apply to these circumstances. Id.
Standard of Review
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.” 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. at 238-
39. It is clear that a substantial 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. Houser v. State, 678 N.E.2d
95, 99 (Ind. 1997). A “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 98. In this review, we consider only the
evidence presented to the issuing magistrate and not post hoc
justifications for the search. Seltzer v. State, 489 N.E.2d 939, 941 (Ind.
1986).
The Search Warrant
The Fourth Amendment to the United States Constitution reads:
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 text of Article I, Section 11 of the Indiana Constitution contains
nearly identical language. These principles are codified in Indiana Code
section 35-33-5-2, which details the information to be contained in an
affidavit for a search warrant. Specifically, the statute provides that
the affidavit must describe with particularity the “house or place to be
searched and the things to be searched for . . . alleging substantially the
offense in relation thereto and that the affiant believes and has good
cause to believe that . . . the things as are to be searched for are there
concealed . . . .” Ind.Code § 35-33-5-2 (1998).
Query argues that the cocaine discovered in the November 4 search
must be suppressed because the police were required to disclose that the
substance purchased by the confidential informant was not methamphetamine.
Query contends that where the information establishing probable cause is
found to be incorrect after the search warrant is issued but before it is
executed, and the magistrate is not informed, the search warrant is per se
invalid.
We find no case in this state or in the federal courts directly on
point. The Second Circuit has held that where the police discover that a
fact underlying a magistrate’s determination of probable cause for issuing
a search warrant is materially different than originally thought, it is the
magistrate, not the executing officers, who must determine whether probable
cause still exists. Under this view, with which we agree, the magistrate
must be made aware of any “material” new or correcting information. United
States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984). The typical
formulation of “material” facts is that they cast doubt on the existence of
probable cause. Id. at 895 (citing United States v. Dennis, 625 F.2d 782,
791 (8th Cir. 1980)). The new information and the information in the
affidavit are to be considered as a whole. Id. (citing United States v.
Kunkler, 679 F.2d 187, 190-91 (9th Cir. 1982)); United States v. Martin,
615 F.2d 318, 328 (5th Cir. 1980).
In Marin-Buitrago, the new information altered neither the crime
alleged nor the scope or nature of the resulting search. In this case, the
correcting information obliterated probable cause for a search for evidence
or fruits of a methamphetamine sale, but simultaneously created probable
cause for a search for evidence or fruits of a sale of a look-alike drug, a
Class D felony. This is not a trivial change. We think, however, it is
not a “material” one because the old information justified a warrant for
the same location and virtually the same items. In the end, the officers
did exactly what they would have done anyway to execute a warrant based on
the new information. Under the original search warrant, the police were
empowered to search for “[m]ethamphetamine, paraphernalia used to deal or
ingest methamphetamine, any documents, notes, records, scales, money or any
indicia of use of or dealing in methamphetamine.” Methamphetamine, a white
powder, is identifiable only through chemical analysis. To the naked eye,
a white powder that actually is methamphetamine and a white powder that is
not are identical. Because the nature and scope of a search for
methamphetamine is identical to the nature and scope of a search for a look-
alike, the correcting information in this case does not constitute a
“material” change.
It is important to note, however, that both the validity and scope of
the search must be unaffected to render the information immaterial. This
case presents very unusual facts. We do not intend to encourage police or
prosecutors to withhold new or correcting information from magistrates.
Indeed, it is difficult to think of another circumstance in which new
information would destroy probable cause for one crime and, at the same
time, create probable cause for another crime where the parameters of the
resulting search in either case would be identical. Police who do not keep
the issuing magistrate fully informed of any new or correcting information
run the risk that the information will be found to have been material.
That will be the result if either the validity or the scope of the warrant
was affected. If so, the original search warrant will be held invalid and
the fruits of that search suppressed.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, J., concur.
RUCKER, J., dissents with separate opinion in which SULLIVAN, J.,
concurs.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TERRY R. CURRY KAREN M. FREEMAN-WILSON
BUTLER HAHN HILL & SCHEMBS Attorney General of Indiana
Indianapolis, Indiana
ANDREW HEDGES
Deputy Attorney General
THOMAS D. PERKINS
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
LOUIS DAVID QUERY, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 49S02-0008-CR-502
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, ) 49A02-9910-CR-733
)
Appellee-Plaintiff. )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Z. Mae Jimison, Judge
Cause No. 49G20-9811-CF-176141
ON PETITION FOR TRANSFER
April 11, 2001
RUCKER, Justice, dissenting
I respectfully dissent. In effectuating the Fourth Amendment’s command
that “no Warrants shall issue, but upon probable cause,” the United States
Supreme Court has long required that a neutral and detached magistrate -
not a police officer - make the determination of probable cause. Shadwick
v. City of Tampa, 407 U.S. 345, 350 (1972). The Shadwick court defined
“neutral and detached” as “severance and disengagement from activities of
law enforcement.” Id. Justice Jackson explained the importance of this
separation in Johnson v. United States, 333 U.S. 10 (1948):
The point of the Fourth Amendment, which often is not grasped by
zealous officers, is not that it denies law enforcement the support of
the usual inferences which reasonable men draw from evidence. Its
protection consists in requiring those inferences be drawn by a
neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime.
Any assumption that evidence sufficient to support a magistrate’s
disinterested determination to issue a search warrant will justify the
officers in making a search without a warrant would reduce the
Amendment to a nullity and leave the people’s homes secure only in the
discretion of police officers. . . . When the right of privacy must
reasonably yield to the right of search is, as a rule, to be decided
by a judicial officer, not by a policeman or government enforcement
agent.
Id. at 13-14 (footnote omitted). See also Wong Sun v. United States, 371
U.S. 471, 481-82 (1963) (holding that the United States Constitution
requires “that the deliberate, impartial judgment of a judicial officer . .
. be interposed between the citizen and the police . . . .”).
Similarly, this Court has held that Article 1, Section 11 of the
Indiana Constitution[1] requires that a neutral and detached magistrate
make the determination of probable cause. State ex rel. French v.
Hendricks Superior Court, Hendricks County, 252 Ind. 213, 223, 247 N.E.2d
519, 525 (1969) (declaring “it is a long standing rule in Indiana that the
determination of probable cause is a judicial determination to be made by a
judge or magistrate, and not a ministerial determination.”). In a case
involving the warrantless search of an automobile, Justice DeBruler
eloquently underscored the rationale for the requirement that judicial
officers, as opposed to police officers, determine the existence of
probable cause:
State judges and magistrates with authority to issue warrants have
received full legal educations. They often have had considerable
experience in the practice of law; they are subject to the Code of
Judicial Conduct. Moreover, judges and magistrates are generally
politically answerable to their communities in ways that law
enforcement officers are not and judicial officers are, therefore,
more likely to understand the general mores regarding reasonable
behavior. This preference for warrants is based on the belief that a
neutral and detached magistrate is more likely to be a fair evaluator
of the relevant circumstances than the police officer actively
involved in investigating a particular crime.
Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995) (footnote omitted).
In this case a magistrate issued a warrant for the search of
methamphetamines based upon an officer’s sworn representation that a field
test revealed the presence of the illegal drug. However, before the
warrant was executed the officer learned that a laboratory test showed the
presence of no controlled substance at all. Consistent with standard
operating procedure in that jurisdiction, the officer contacted the local
prosecutor with this new information. Rather than alert the magistrate,
the prosecutor gave the officer the go-ahead to execute the warrant.
Carving out an exception to the requirement that a neutral and detached
magistrate make the determination of probable cause, this Court’s majority
endorsed the actions of the police and prosecutor on the ground that the
new information was not “material.” Slip op. at 6.
In my view this materiality exception is problematic because it runs
afoul of both the United States and Indiana constitutional guarantees that
a neutral and detached magistrate determine the existence of probable
cause. Instead, it leaves into the very hands of those who are “actively
involved in investigating [the] crime” the determination of whether the new
information is material and thus whether probable cause exists. Stated
differently, when a new fact is discovered, a police officer - or in this
case a prosecuting attorney - is the one who will determine whether it is
material to the magistrate’s probable cause determination. This means that
only when a police officer finds that a newly discovered fact is material
to the magistrate’s probable cause determination will that fact even get
relayed to the issuing magistrate before execution of the search warrant.
In my view this is incorrect. This is a magistrate’s call and neither the
investigating officer nor this Court should engage in speculation on
whether the magistrate would have found that probable cause still exists
had the magistrate been presented with this new information.
Rather than carve out an exception, I would hold that an officer has a
duty to report to the magistrate any new or correcting information that
defeats the original underlying basis for the magistrate’s issuance of a
search warrant. Because that was not done in this case, I would reverse
the trial court’s denial of Query’s motion to suppress.
SULLIVAN, J., concurs.
-----------------------
[1] Nearly verbatim to the Fourth Amendment of the United States
Constitution, Article 1, Section 11 of the Indiana Constitution provides in
relevant part: “no warrant shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized.”