MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 18 2019, 6:08 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William T. Gudger, June 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-525
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable Brant J. Parry,
Appellee-Plaintiff. Judge
Trial Court Cause No.
34D02-1604-F3-78
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019 Page 1 of 11
Statement of the Case
[1] William T. Gudger appeals his conviction for robbery, as a Level 3 felony,
following a jury trial. Gudger presents one issue for our review, namely,
whether the trial court erred when it admitted evidence that law enforcement
officers had seized pursuant to a search of his residence.
[2] We affirm.
Facts and Procedural History
[3] On April 6, 2016, Gudger entered a bank in Kokomo wearing “fake hair” under
a hat, sunglasses, a sweatshirt, and a dark coat. Tr. Vol. II at 96. One of the
employees of the bank, Jenna Canady, approached Gudger to ask him to
remove his hat and sunglasses. In response, Gudger pulled out a gun and
stated: “This is a f**king robbery. Put your hands up. I want $20,000.” Id.
After the bank tellers did not respond to Gudger’s demand quickly enough,
Gudger “got angry” and fired a shot at the floor. Id. at 94. The bank tellers
then gave Gudger $5,967.
[4] Shortly after Gudger had left, law enforcement officers arrived at the scene and
found pieces of the shattered bullet on the floor. Officers also found tire tracks
and two twenty-dollar bills in a grassy area outside of the bank. The officers
then obtained a copy of the video from the bank’s surveillance camera, which
had recorded the robbery.
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[5] After he had obtained the money, Gudger fled the scene. He called his sister,
Kristen Gudger, and asked her to pick him up. It “sounded like something was
wrong,” so Kristen left work in Indianapolis to pick Gudger up. Id. at 64.
Gudger sent Kristen a text message with an address in Kokomo where he
would be waiting. Once Kristen arrived at the address, Gudger and his
girlfriend, Beverly Harris, got into Kristen’s car, and Kristen drove them to
Indianapolis.
[6] At one point during the drive, Gudger stated: “f**k, f**k . . . I forgot the bag.”
Id. at 68. Gudger then asked Kristen if they could turn around so that he could
get his bag. Kristen refused, and she asked Gudger what he had done. Gudger
responded: “I do what I do best.” Id. He then pulled out “a decent wad of
cash” from his pocket, which was “unusual” for him to have. Id. at 69, 88.
Based on a prior conversation in which Gudger had told Kristen that “[a]ll he
would have to do is rob a bank” to solve his problems, Kristen determined that
Gudger had robbed a bank. Id. at 70. Kristen then began “freaking out,” but
she did not want Gudger or Harris to know, so she continued to drive to
Indianapolis. Id. at 69.
[7] As they approached Indianapolis, Gudger asked Kristen if she would take them
to a mall. Kristen complied, and Gudger and Harris purchased some items.
The three then went to a restaurant. After they had finished their meal, they
drove to a gas station. While there, Gudger saw a news story about the robbery
on his phone. Gudger told Kristen that “he had used a gun” and that he had
shot the gun into the floor, but he did not specifically tell Kristen that he had
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robbed a bank. Id. at 75. After they left the gas station, Kristen dropped
Gudger and Harris off at a hotel where they stayed for the night.
[8] The next morning, Kristen contacted Detective Robert Scaife with the Muncie
Police Department, who is her uncle. Kristen informed Detective Scaife that
Gudger had robbed a bank in Kokomo. Detective Scaife then called Kokomo
Police Detective Michael Banush and told Detective Banush about his phone
call with Kristen.
[9] Detective Banush then “immediately” called Kristen. Id. at 122. Kristen
relayed all of the facts from the previous day to Detective Banush. Kristen
specifically told Detective Banush that she had picked Gudger and Harris up
from a house at 720 South Purdum Street in Kokomo and that they had
checked into room number 255 at the Best Western hotel in Indianapolis.
[10] Detective Banush was able to confirm that Harris had checked into room 255 of
a Comfort Inn that had previously been a Best Western and that Harris lived at
720 South Purdum Street. Detective Banush applied for a search warrant for
Harris’ house. In support of his request for the search warrant, Detective
Banush filed an affidavit of probable cause that stated in part:
On 04/06/2016 at approximately 3:30 pm, Officers of the
Kokomo Police Department were sent to Security Federal Bank,
519 E. Markland Ave. in reference to a bank robbery. Dispatch
advised that a black male entered the bank with a handgun,
stated, “This is a robbery” and demanded $20,000.00. The male
ordered everyone to put their hands up, fired the handgun toward
the floor and demanded $20,000.00 again. The tellers handed the
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suspect cash and he left the bank. The employees described the
suspect as a black male, 5-9 to 5-10 in height, thin build, having
dreadlocks, wearing a gray hooded sweatshirt, black pea coat,
black hat, sunglasses[,] blue jeans[,] and blue tennis shoes.
On 04/07/2016, the affiant received a phone call from a Det.
Robert Scaife of the Muncie Police Department. Det. Scaife
stated that his niece, Kristen Gudger called him this morning and
said that her brother robbed the bank in Kokomo yesterday. The
affiant contacted Kristen Gudger of Indianapolis IN and she
stated that her brother is William T. Gudger, DOB: 03/15/1982.
She stated that on yesterday’s date, William called her and asked
her to pick him up in Kokomo. She stated that she drove to
Kokomo and picked William and his girlfriend up from 720 S.
Purdum Street. She identified the girlfriend as a black female
named Beverly who lives at 720 S. Purdum St. She stated that
William wanted her to take him and Beverly to Indianapolis IN.
On the way to Indianapolis, William told her that he robbed a
bank with a gun and showed her a pocket full of cash. Kristen
asked William which bank he robbed and he told her that he
robbed the bank where all of the police cars were. It should be
noted that 720 S. Purdum is just blocks from Security Federal
Bank. William also told her that he robbed the bank 1 1/2 hours
ago. William also gave her $300.00 cash for picking him up and
driving him and Beverly to Indianapolis. Kristen said that on the
way to Indianapolis, William told Beverly that he forgot to bring
the bag containing the clothes that he wore during the bank
robbery. Kristen stated the bag of clothes is in the residence at
720 S. Purdum St. Kristen stated that she drove William and
Beverly to a Best Western Hotel at Washington Street and I465.
She stated that William and Beverly checked into room #255.
Kristen also stated that William called her today and wants her
to pick him up at the hotel and drive him back to 720 S. Purdum
St. so he can get the bag of clothes and destroy them.
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The Indianapolis State Police went to Washington Street and
I465 and found a Comfort Stay Inn that used to be a Best
Western, 7610 Old Trail Rd. Indianapolis IN. ISP investigators
confirmed with the hotel staff that Beverly Harris is a registered
guest in room #255. Investigators also confirmed that Beverly
Harris resides at 720 S. Purdum St. in Kokomo IN.
Appealed Order at 2-3.
[11] The trial court granted the search warrant, and officers executed the warrant
later that day. As a result of the search, the officers discovered a white trash
bag that contained a black wig, a black pea coat, blue tennis shoes, and pants.
Officers also found a gray hooded sweatshirt on top of a clothes basket and a
pair of sunglasses. Those items matched the items officers were able to observe
on the bank’s surveillance video.
[12] Following that search, Detective Banush applied for a search warrant for the
hotel room, which the trial court granted. Officers went to the hotel in order to
execute the search warrant. Prior to searching the hotel room, officers arrested
Gudger and found “a large amount of cash” in his pocket. Tr. Vol. II at 127.
Officers then searched the room and found “brand new items that had been
purchased.” Id. at 129. They also found receipts “that totaled over a couple
thousand dollars.” Id. Officers transported Gudger to the Kokomo Police
Department. Once there, officers read Gudger his Miranda rights, and Gudger
gave a statement in which he confessed to having robbed the bank.
[13] The State charged Gudger with one count of robbery, as a Level 3 felony. On
January 23, 2018, Gudger filed a motion to suppress any evidence seized during
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the search of his residence. In that motion, he asserted that the affidavit for
probable cause that Detective Banush had filed in support of his request for the
search warrant was based only on hearsay statements and that the affidavit did
not contain any information to indicate that the hearsay statements were
reliable or credible. Gudger further requested that the court suppress all items
obtained from the search of his hotel room and his confession because the
warrant to search the hotel and his arrest were “derivatively gained” from the
warrant to search his house. Motion to Suppress at 11. 1 The trial court denied
Gudger’s motion.
[14] The trial court held a jury trial on January 23 through 25. During the trial, the
State moved to admit as evidence photographs of the clothing that officers had
found in Gudger’s home as well as photographs of items found in the hotel
room. The trial court admitted that evidence over Gudger’s objection. The
State also moved to admit as evidence the transcript of Gudger’s interview with
police, which the court admitted over Gudger’s objection. Further, the State
presented the testimony of Canady and another bank teller, Kelly Stephenson,
who both identified Gudger as the man who had robbed the bank. The jury
found Gudger guilty of robbery, as a Level 3 felony. The trial court entered
judgment of conviction and sentenced Gudger to fifteen years in the
Department of Correction. This appeal ensued.
1
Gudger provided a copy of the motion to suppress in his appendix, but that copy is illegible. See
Appellant’s App. Vol. II at 74-84. Accordingly, we have taken judicial notice of the motion to suppress that
Gudger filed in the trial court, which we have obtained via the Odyssey case management system.
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Discussion and Decision
[15] Gudger contends that the trial court erred when it admitted as evidence items
law enforcement officers had seized during the search of his residence. 2
Gudger’s argument that the search of his residence violated his constitutional
rights raises “questions of law that we review de novo.” Redfield v. State, 78
N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (quotation marks omitted), trans.
denied.
[16] On appeal, Gudger contends that the search of his residence was illegal because
the search warrant lacked probable cause. Specifically, Gudger asserts that the
search was improper because the affidavit for probable cause contained only
hearsay statements and because the affidavit did not contain any information to
“indicate[] any corroboration” of those statements. Appellant’s Br. at 8.
[17] But we need not decide whether there was probable cause to issue the search
warrant. Even if we assume for the sake of argument that Gudger is correct and
there was no probable cause to support the search warrant, “[t]he lack of
probable cause does not automatically require the suppression of evidence
obtained during a search conducted pursuant to a warrant.” Jackson v. State,
908 N.E.2d 1140, 1143 (Ind. 2009). Indeed, “the exclusionary rule does not
2
Throughout his brief on appeal, Gudger asserts that the trial court erred when it denied his motion to
suppress. However, because Gudger appeals after a completed trial, “the question of whether the trial court
erred in denying his motion to suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct.
App. 2010).
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require the suppression of evidence obtained in reliance on a defective search
warrant if the police relied on the warrant in objection good faith.” Id.
[18] Accordingly, to prove that the trial court committed reversible error when it
admitted as evidence items officers has seized from his residence, Gudger must
demonstrate both that the warrant lacked probable cause and that the good faith
exception does not apply. But, on appeal, Gudger only asserts that the search
warrant lacked probable cause. He makes no argument that the good faith
exception does not apply.
[19] It is well settled that there are two situations where the good faith exception
does not apply. See id. Those include situations where “the magistrate is
misled by information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth” or situations
where “the warrant was based on an affidavit so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.” Id.
(quotation marks omitted).
[20] Gudger has not directed us to any evidence in the record, or made any
argument, that the magistrate was misled by information in the affidavit that
Detective Banush knew or should have known was false. Neither does he
assert that the warrant was so lacking in indicia of probable cause as to render
belief in its existence entirely unreasonably. Accordingly, Gudger has not met
his burden on appeal to demonstrate that the trial court erred when it admitted
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as evidence items seized pursuant to the search of his residence. 3 We therefore
affirm the trial court.
[21] Affirmed.
Robb, J., concurs.
Baker, J., concurs with separate opinion.
3
Gudger also asserts, without more, that, “[b]ecause there was no probable cause to search 720 South
Purdum, there was no legally obtained information to arrest Gudger and search the hotel where Gudger and
Harris were staying.” Appellant’s Br. at 9. While it appears as though Gudger attempts to assert that the
search of his hotel room and his statement to police should be suppressed as fruit of poisonous tree, Gudger
does not cite any authority for his proposition or provide any argument to support his conclusory statement
that his confession and the items from the hotel room should be suppressed. Accordingly, Gudger has failed
to make cogent argument, and that purported issue is waived. See Ind. Appellate Rule 46(A)(8)(a). In any
event, given that Grudger not has met his burden to show reversible error in the seizure of evidence under the
first warrant, his derivative argument under the fruit-of-the-poisonous-tree doctrine also fails on the merits.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-525 | June 18, 2019 Page 10 of 11
IN THE
COURT OF APPEALS OF INDIANA
William T. Gudger, Court of Appeals Case No.
18A-CR-525
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Baker, Judge, concurring.
[22] I fully concur in the majority opinion. I write separately to note that in my
view, there was probable cause to issue the search warrant. It is true that the
probable cause affidavit was primarily based on hearsay. But I find it
significant that after receiving the call from Kristen, Detective Banush
investigated and was able to verify some of her assertions, including the hotel in
which Gudger was staying, his room number, and his home address. I believe
that this follow-up investigation and confirmation of some of the salient details
provided by Kristen shows that the information she had provided was
sufficiently reliable to establish probable cause for the warrant.
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