ATTORNEY FOR APPELLANT

Donald J. Hickman

Bedford, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Phillip D. Hatfield

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	SUPREME COURT OF INDIANA

							)

LARRY E. JAGGERS,				)	

							)

	Appellant (Defendant below),		)	Indiana Supreme Court

							)	Cause No. __________47S01-9711-CR-564 

	v.						)

							)	Indiana Court of Appeals	

STATE OF INDIANA,				)	Cause No. 47A01-9611-CR-363

							)

	Appellee (Plaintiff below).			) 

							)

	APPEAL FROM THE LAWRENCE SUPERIOR COURT II

	The Honorable William G. Sleva, Judge

	Cause No. 47E01-9307-CF-457

	ON PETITION TO TRANSFER

BOEHM, Justice.

	Larry E. Jaggers was convicted of possession of more than thirty grams of marijuana, a Class D felony.1  The trial court sentenced Jaggers to six months imprisonment and two years supervised probation.  We grant transfer to address the interplay between the “good

faith” exception to the exclusionary rule and the warrant statute, Indiana Code § 35-33-5-2. 

Because we hold that the evidence used to convict Jaggers was inadmissible, we reverse the

conviction and remand for further proceedings.   

	Factual and Procedural History

	On July 12, 1993, an Indiana state trooper received an anonymous telephone call asserting that a Lawrence Jaggers was cultivating and trafficking marijuana in his house in

Mitchell, Indiana.  The caller made two claims: (1) he had personally seen marijuana in and

around Jaggers’s house on numerous occasions over the course of several years, most

recently in the prior week; and (2) Jaggers was growing marijuana on two plots of land away

from his residence.  The caller described the house and the location of the off-site plots,

including approximately how many marijuana plants would be found there.  Armed with this

information, within the next two days the officer went to Jaggers’s house and found that the

caller’s description of the house was accurate.  A truck in the driveway was registered to

Lawrence E. Jaggers of Lawrence County.  On July 15, the officer drove to each of the

described plots and found marijuana growing there.  Both plots were on land easily

accessible to the public, one approximately two miles and the other six miles from Jaggers’s

house.  Based on the officer’s testimony at a probable cause hearing later that day (described in Part II infra), a magistrate immediately issued a warrant authorizing a search of the described house for “[m]arijuana, ‘grow’ lights, and records and other similar written

material recording or otherwise reflecting illegal trafficking in marijuana.”  The officer

executed the warrant at Jaggers’s home that afternoon.  The search uncovered a substantial

quantity of marijuana and related paraphernalia.  Jaggers was convicted in a bench trial and

he appealed.  With one judge dissenting, the Court of Appeals affirmed.  Jaggers v. State, 681 N.E.2d 793 (Ind. Ct. App. 1997) (unpublished table decision). 

	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, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (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.  “[S]ubstantial 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).  “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 hac justifications for the search.  Seltzer v. State, 489 N.E.2d 939, 941 (Ind. 1986).

	I.  Use of Hearsay to Establish Probable Cause

	Jaggers moved unsuccessfully before trial to suppress the evidence seized as a result

of the search.  He now challenges the denial of that motion and the admission of the evidence

over his objection at trial.  Jaggers argues that the warrant did not issue upon probable cause

because the informant’s claim that Jaggers was cultivating and trafficking marijuana inside

his home was entirely uncorroborated.  The State responds that the officer corroborated the

anonymous caller’s statements sufficiently to establish probable cause.  Jaggers’s argument

is based on both the Fourth Amendment and Indiana Code § 35-33-5-2.  He does not assert

any claim under Article I, Section 11 of the Indiana Constitution.

  	A.  Fourth Amendment requirements for probable cause

	Gates instructed reviewing courts to accord magistrates greater flexibility and deference in determining the existence of probable cause based on hearsay: “Informants’ tips

doubtless come in many shapes and sizes from many different types of persons. . . .  Rigid

legal rules are ill-suited to an area of such diversity.”  Gates, 462 U.S. at 232.  However, Gates was also unequivocal 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.  Id. at 227.  The hearsay must exhibit some hallmarks of reliability.  Gates indicated that the trustworthiness of hearsay for purposes of proving probable cause can be established

in a number of ways, including where (1) the informant has given correct information in the

past; (2) independent police investigation corroborates the informant’s statements; (3) some

basis for the informant’s knowledge is shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted.  Depending on the facts,

other considerations may come into play in establishing the reliability of the informant or the

hearsay.       

	Even under Gates’s deferential standard of review, the determination of probable cause in this case lacked a substantial basis.  The independent police investigation

corroborated the informant’s assertion that marijuana was being grown on two plots of land

miles from Jaggers’s residence and that Jaggers appeared to live where the informant said

he lived -- nothing more.  These facts did not establish any corroboration of the anonymous

claim that Jaggers’s house contained evidence of crime.  Nor did they confirm that the off-

site marijuana plants belonged to Jaggers.  Cf. Kail v. State, 528 N.E.2d 799, 804-08 (Ind. Ct. App. 1988) (search warrant for defendant’s house issued on probable cause where

defendant was arrested at marijuana patch away from his residence and facts supported

conclusion that growing paraphernalia would be found in his house).  The critical claim here

-- that Jaggers was cultivating and trafficking marijuana in his house and also controlled the

off-site plots -- was entirely uncorroborated.    

	Equally critically, the informant’s credibility was entirely unknown.  Use of

anonymous informants to establish probable cause often presents heightened reliability

concerns.  Because there is no possibility of criminal liability for filing a false police report,

the informant has no incentive to be truthful.  See Gates, 462 U.S. at 233-34 (“[I]f an unquestionably honest citizen comes forward with a report of criminal activity--which if

fabricated would subject him to criminal liability--we have found rigorous scrutiny of the basis of his knowledge unnecessary.”) (citation omitted).  Anonymity effectively shields

from scrutiny any possible ulterior motives; the situation is rife with the potential for pranks

and mischief.  Accordingly, some corroboration of the accusations is all the more essential

when the informant is anonymous.  See, e.g., Sanders v. State, 576 N.E.2d 1328 (Ind. Ct. App. 1991) (tip from confidential informant that defendant would be driving in the area and

“possibly” in possession of narcotics did not establish probable cause for warrantless search

of defendant’s vehicle where the trustworthiness of the information had not been

established).  

	At the same time, anonymous tips can provide important information enabling police

to apprehend suspects who otherwise might escape detection.  A balance must be struck

between these considerations.  As Gates put it: “While a conscientious assessment of the basis for crediting [anonymous] tips is required by the Fourth Amendment, a standard that

leaves virtually no place for anonymous citizen informants is not.”  Gates, 462 U.S. at 238.  The only factor cutting towards crediting the tip in this case was that the caller claimed to

have personally witnessed the criminal activity.  Gates indicated that “a statement that the event was observed firsthand” entitles the tip to “greater weight than might otherwise be the

case.”  Id. at 234.  However, the caller gave no information that would have enabled a neutral and detached magistrate to assess the credibility of this claim of firsthand observation.  The

caller’s assertion of personal knowledge carries little weight in light of the total lack of

corroboration of the claim and no basis for concluding that the caller was a credible source. 

In short, the search warrant here was issued on uncorroborated hearsay from an informant whose credibility was entirely unknown.  This does not satisfy the Fourth Amendment’s

requirement of probable cause.  

	The reason for the prohibition on searches based on uncorroborated hearsay goes to

the root of the Fourth Amendment and Indiana statutory and constitutional protection against

unreasonable searches and warrants without probable cause.  If any anonymous caller’s

allegation, uncorroborated by anything beyond public knowledge, could justify a search,

every citizen’s home would be fair game for a variety of innocent and not so innocent

intrusions.

	B.  Indiana Code § 35-33-5-2

	Jaggers contends the caller’s information also does not satisfy the Indiana statute

regulating the issuance of search warrants based on hearsay.  That statute provides:

	(b)  When based on hearsay, the [probable cause] affidavit must either:

	(1)  contain reliable information establishing the credibility of the source and of each 

	of the declarants of the hearsay and establishing that there is a factual basis for the 

	information furnished; or

	(2) contain information that establishes that the totality of the circumstances 

	corroborates the hearsay.        

Ind. Code § 35-33-5-2(b) (1993).  Amendments to the statute have in effect codified changes in Fourth Amendment doctrine on the use of informants to establish probable cause.2  Accordingly, we have held that “[w]hen seeking either a search or an arrest warrant, the

police must follow the warrant statute, which specifies the minimum information necessary

to establish probable cause.”  Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994) (citation and footnote omitted); accord Houser, 678 N.E.2d at 99.3 

	For many of the same reasons discussed in Part IA supra, the requirements of the statute were not satisfied here.  Subsection (b)(1) was not met because the officer did not

offer any information to the issuing magistrate, and apparently had none, establishing the

credibility of the anonymous source.  Subsection (b)(2) was also not met because the totality

of the circumstances did not corroborate the hearsay.  The informant’s claim that Jaggers was

cultivating and trafficking marijuana in his house was entirely uncorroborated.  The facts that

were verified were unremarkable; anyone who knew the location of Jaggers’s house and the

two marijuana patches could have placed the anonymous phone call.  Bradley v. State, 609 N.E.2d 420, 423 (Ind. 1993) (totality of circumstances did not corroborate hearsay where

police investigation established only that anonymous caller gave correct address of the

defendant and an accurate description of a crime that had in fact occurred).  The Supreme

Court observed in Gates that “[b]ecause an informant is right about some things, he is more probably right about other facts.”  Gates, 462 U.S. at 244 (internal quotation marks and citation omitted).  While this may be true as a general proposition, this presumption does not

attach until the informant is shown to be correct about facts not within the public domain. 

Seltzer v. State, 489 N.E.2d 939 (Ind. 1986) (anonymous tip supported finding of probable cause because informant described a class ring missing from the crime scene and the theft

had not been reported in the newspapers).  The caller’s claim of firsthand observation of

marijuana in Jaggers’s house would ordinarily boost the credibility of the assertion, Dolliver v. State, 598 N.E.2d 525, 528 (Ind. 1992), but it too is uncorroborated.  The statement of firsthand knowledge could just as easily have been fabricated to make the underlying

allegation appear more credible.  Cf. Everroad v. State, 590 N.E.2d 567 (Ind. 1992) (subsection (b)(2) not satisfied where claim of firsthand observation of criminal activity was

not corroborated by totality of circumstances).  In sum, the hearsay in this case fails to satisfy

either the Fourth Amendment or Indiana Code § 35-33-5-2.   

	II.  Good Faith Exception to the Exclusionary Rule

	The Supreme Court of the United States held in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) that the exclusionary rule does not require the

suppression of evidence obtained in reliance on a defective search warrant if the police relied

on the warrant in objective good faith.  However, Leon cautioned that certain police conduct would not qualify for this exception, including where (1) 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 for the truth”; or (2) 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. at 923 (internal quotation marks and citations omitted).  In affirming the trial court, the Court of Appeals could not agree on proper application of the good faith

exception.  Judge Robertson held that Leon allowed the evidence to be admitted, irrespective of whether probable cause existed, because the magistrate had not been misled.4  Judge Chezem concurred in result without opinion.  Judge Najam dissented on two grounds: (1) the

warrant was not supported by probable cause because it issued on uncorroborated hearsay;

and (2) the good faith exception did not apply because no well-trained officer would

reasonably have relied on a warrant issued on uncorroborated hearsay. 

	Jaggers argues that the investigating officer misled the magistrate when he testified

at the probable cause hearing that the two marijuana plots were “near” State Road 60

(Jaggers’s house was located just north of State Road 60 on Lawrence County Road).  The

State responds that the Leon exception applies here because the officer did not testify falsely about the location of the plots.  We disagree.  The marijuana patches were at least two and

six miles from the house respectively.  The officer personally visited the plots just a few

hours before testifying as to their location.  Although he agreed with the prosecutor’s

statement at the probable cause hearing that the plots were “separate from the place we are

seeking to search,” the officer subsequently stated that the marijuana patches were “near” Jaggers’s residence.  Although perhaps an innocent mischaracterization, this representation

was critical when viewed in the factual context.  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.  In applying Leon, our cases have stressed the importance of accurately presenting all relevant information to the magistrate.  See, e.g., Dolliver, 598 N.E.2d at 529.  Only then can the magistrate make the neutral and detached determination the Fourth Amendment requires of whether probable cause exists.  Here the

magistrate’s decision to issue the warrant may well have turned on the blurring of the

absence of any link between Jaggers and the marijuana patches.  

	This certainly approaches misleading the magistrate to a degree that prevents

invocation of Leon.  In any event, we agree with Judge Najam that the information on which the warrant was based was so lacking in indicia of probable cause that no well-trained officer

would reasonably have relied on the warrant.  Law enforcement officers are trained to

distinguish the incriminating from the innocuous.  Federal constitutional cases such as Gates and Indiana’s warrant statute make at least two things abundantly clear to law enforcement

officers who seek a warrant based on hearsay: (1) the informant must be shown to be

credible; or (2) the information must be shown to be reliable through corroboration or some

other means.  Because the informant in this case was anonymous, it would have been clear

at the outset to a reasonable police officer that some corroboration of the caller’s allegations

would be critical if a warrant was to be obtained.  Indeed, our decisions have emphasized that corroboration of inculpating information can sometimes be crucial to determining the

existence of good faith.  Cf. Bradley, 609 N.E.2d at 423-24 (holding that good faith exception was not available in part because there was no corroboration of anonymous

caller’s allegation linking defendant to the crime).  	

	The State’s contention that the officer corroborated the anonymous tip “to the extent

practicable” does not comport with the facts.  The caller stated that Jaggers had “an ongoing

operation for several years at that location” and that “something is pretty much always

growing in there.”  This should have signaled time and opportunity to develop independent

data showing the allegations to be reliable.  Yet the police investigation was limited to

confirming factual allegations that shed absolutely no light on whether Jaggers’s house might

contain evidence of crime.  The location of the house and of the off-site plots were “easily

obtained facts and conditions existing at the time of the tip . . . .”  Gates, 462 U.S. at 245. The caller claimed that he had seen marijuana “in and around that residence and its

curtilage,” but the officer did not attempt to confirm this through personal observation.  And

even though the caller asserted that Jaggers was selling “a pound of marijuana a week,” no

surveillance of any kind was placed on the house to determine whether the level of traffic

was consistent with drug dealing.  Finally, the officer expended no effort to establish any link

between Jaggers and the marijuana patches.  In short, there was no corroboration of these

critical facts and no serious effort to corroborate them.    	

	Since 1969, the General Assembly has required some showing of credibility of the

informant or of the hearsay for a warrant to issue on the informant’s statements.  See, e.g., 1969 Ind. Acts, ch. 99, § 1.  Although the warrant statute has been amended from time to

time, this legislative policy has remained consistent for nearly thirty years.  See also note 2 supra.  Police officers are reasonably charged with knowing the statute’s basic requirements: “The goal is that warrants be issued only upon probable cause, shown preferably by facts but

in any event by information that is believed to be reliable.”  Madden v. State, 263 Ind. 223, 226, 328 N.E.2d 727, 729 (1975) (construing predecessor statute).  Because reliance on a

warrant issued on completely uncorroborated hearsay from an anonymous informant

contravenes this purpose, the conduct of the police here cannot be characterized as

objectively reasonable.  Leon’s rationale is not advanced by effectively allowing the State to claim good faith reliance on a warrant after a less than faithful effort to establish probable

cause to obtain it.  Accordingly, we hold that the good faith exception announced in Leon cannot save the illegally-seized evidence in this case.  The trial court erred when it denied

Jaggers’s motion to suppress and admitted the evidence seized as a result of the search. 

Because the error was not harmless, the conviction must be reversed.5      	

	Conclusion

  	tTransfer is granted .  Larry E. Jaggers’s conviction for possession of marijuana is reversed.  This cause is remanded for further proceedings consistent with this opinion.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.