Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 1 of 21

ATTORNEY FOR APPELLANT

W. Trent Van Haaften

Van Haaften & Farrar, Attorneys At Law LLC

Mount Vernon, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David B. Cartwright,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 25, 2015

Court of Appeals Cause No.

65A01-1404-CR-170

Appeal from the Posey Circuit Court.

The Honorable James M. Redwine, 

Judge.

Cause No. 65C01-1303-FB-89

Darden, Senior Judge

Statement of the Case

[1] Police officers executed a search warrant at David B. Cartwright’s home and 

found evidence that caused the State to charge him with several 

methamphetamine-related offenses. The trial court held a bench trial and 

convicted Cartwright of manufacturing methamphetamine, a Class B felony, 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 2 of 21

Ind. Code § 35-48-4-1.1 (2006); possession of methamphetamine, a Class C 

felony, Ind. Code § 35-48-4-6.1 (2006); possession of chemical reagents or 

precursors with intent to manufacture a controlled substance, a Class C felony, 

Ind. Code § 35-48-4-14.5 (2006); and maintaining a common nuisance, a Class 

D felony, Ind. Code § 35-48-4-13 (2001).

[2] Cartwright raises one issue, which we restate as whether the trial court abused 

its discretion in admitting evidence discovered as a result of the search warrant. 

Concluding that there was insufficient probable cause to issue a search warrant,

and that the evidence was thus inadmissible, we reverse.

Facts and Procedural History

[3] On March 6, 2013, Detective Jeremy Fortune met with a confidential informant 

who was incarcerated at the Posey County Jail. The informant had said that 

he1 wanted to talk about “drug information in Posey County.” Tr. p. 6. 

Detective Fortune did not know anything about the informant before the 

meeting. The informant was being held because he had an active arrest warrant 

for failure to appear in court in Illinois on an unidentified charge.

[4] Detective Fortune took an audiotaped statement from the informant. The 

informant stated that a person he knew as “Dave” had manufactured

methamphetamine at a house in rural Posey County. Appellant’s App. p. 31. 

 

1 The record does not identify the informant’s gender. We refer to the informant as “he.”
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 3 of 21

The informant explained that he knew of Dave’s activities because he had 

purchased methamphetamine from Dave “within the last 3 or 4 months” and 

had seen Dave making methamphetamine at that time. Id. at 31-32. In 

addition, the informant stated that he had seen Dave trade methamphetamine 

for money, pseudoephedrine, and a gun “in the past.” Id.

[5] The informant further told Detective Fortune that he had been in Dave’s house 

and had seen a number of firearms and ammunition. He had also heard Dave 

state a belief that he was being followed by police officers and threaten specific 

officers with harm. The informant stated that Dave told him that if police tried 

to arrest him, he would not “go down without a fight.” Id. at 34.

[6] The informant told the officer how methamphetamine is manufactured. He 

also explained how Dave made methamphetamine and disposed of the waste 

products. He further told Detective Fortune he believed that Dave had six or 

eight regular buyers. In addition, he explained how to get to Dave’s house,

identified Dave’s house on a map drawn by Detective Fortune, and described 

the interior of the house.

[7] The informant told Detective Fortune he had provided information about drug 

activity to Greg Hannish, an Illinois police officer, “approximately 8 years

ago.” Id. Detective Fortune contacted Officer Hannish, who knew the 

informant and said that the informant “had provided drug information to him 

in the past.” Id.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 4 of 21

[8] Based upon the interview, Detective Fortune concluded the informant was 

referring to Cartwright, who Fortune knew lived in rural Posey County. The 

area pointed out on the map matched the location of Cartwright’s house. In 

addition, the informant had stated that there was an RV parked in front of 

Dave’s house, and a detective drove by Cartwright’s property and saw from the 

road an RV parked in the front. Other than observing the RV, the officers did 

not make any independent investigation of the situs and made no further 

attempts to corroborate the informant’s statements regarding any ongoing 

criminal activity.

[9] Some four years prior to the interview, Detective Fortune had been driving past 

Cartwright’s home when he saw a “fog haze” coming from the home and 

smelled ammonia and ether. Id. at 35. Fortune told the prosecutor what he 

had observed, but the prosecutor declined to seek a search warrant at that time

for lack of sufficient probable cause.

[10] On March 7, 2013, Detective Fortune prepared a probable cause affidavit for a 

search warrant. He included the information set forth above, except that he did 

not state in the affidavit that the informant was incarcerated on an Illinois arrest 

warrant at the time of the interview. Detective Fortune described his extensive 

training and experience in investigating methamphetamine manufacturing and 

explained what, in his experience, one would likely find at a location where 

methamphetamine is being manufactured.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 5 of 21

[11] Detective Fortune further stated that, in his opinion, the informant was credible 

because “given the information [the informant] has provided and given the fact 

that the description provided by [the informant] for the driving route to ‘Dave’s’ 

home was known by your affiant to be an accurate description for traveling to 

Dave or David Cartwright’s home.” Id. at 41.

[12] The court issued a search warrant for Cartwright’s property. Detective Fortune 

and other officers executed the warrant and found an active methamphetamine 

lab in Cartwright’s house. They also found digital scales, a glass pipe, and 

firearms. Officers found a burn pile on Cartwright’s property that contained 

stripped out battery casings. In addition, officers searched Cartwright’s garage 

and found numerous empty boxes that had contained pseudoephedrine-based 

pills. They also found a plastic bag that contained methamphetamine residue. 

Their search of the house yielded only $79 in currency.

[13] The officers arrested Cartwright at his house and read him his Miranda rights. 

Next, the officers took him to jail. During the trip, he acknowledged that he 

was manufacturing methamphetamine.

[14] At the jail, Cartwright signed a waiver of his Miranda rights and submitted to a 

recorded interview with the officers. He again acknowledged that he 

manufactured methamphetamine in his house. He also explained what stage of 

the process he was in at the time the police arrived. In addition, he described 

how he was using various items and chemicals in the manufacturing process. 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 6 of 21

Cartwright stated that he made and used methamphetamine to mitigate his 

back pain. He denied manufacturing methamphetamine to sell to others.

[15] The State charged Cartwright with the offenses described above, plus 

possession of marijuana. Cartwright filed a motion to suppress all evidence 

obtained as a result of the search warrant. The court denied Cartwright’s 

motion after a hearing.

[16] Cartwright waived his right to a jury trial. At the bench trial, he raised a 

continuing objection to the admission of evidence obtained from the execution 

of the search warrant. The State submitted testimony and photographs 

describing the methamphetamine lab in Cartwright’s house, his signed waiver 

of his Miranda rights, and the transcript of his interview, among other evidence. 

Next, the State dismissed the charge of possession of marijuana. The court 

determined that Cartwright was otherwise guilty as charged and sentenced him 

accordingly. This appeal followed.

Discussion and Decision

[17] Cartwright argues that the trial court erred in denying his motion to suppress. 

Because Cartwright appeals after a completed trial, the question of whether the 

trial court erred in denying the motion is no longer viable. Reinhart v. State, 930 

N.E.2d 42, 45 (Ind. Ct. App. 2010). Instead, the issue is more appropriately 

framed as whether the trial court abused its discretion when it admitted the 

evidence at trial. Id. When we review a trial court’s ruling on the admissibility 

of evidence resulting from an allegedly illegal search, we do not reweigh the 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 7 of 21

evidence, and we consider conflicting evidence most favorable to the trial 

court’s ruling. Id.

[18] Cartwright claims that all of the evidence resulting from the search of his house 

is inadmissible because there was no probable cause to issue the search warrant

in the first place. The Fourth Amendment to the United States Constitution 

provides:

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.

[19] The text of article I, section 11 of the Indiana Constitution contains nearly 

identical language. Indiana has codified these constitutional principles at 

Indiana Code section 35-33-5-2 (2005), as follows:

no warrant for search or arrest shall be issued until there is filed with 

the judge an affidavit:

(1) particularly describing:

(A) the house or place to be searched and the things to be searched for; 

or

(B) particularly describing the person to be arrested;

(2) alleging substantially the offense in relation thereto and that the 

affiant believes and has good cause to believe that:
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 8 of 21

(A) the things as are to be searched for are there concealed; or

(B) the person to be arrested committed the offense; and

(3) setting forth the facts then in knowledge of the affiant or 

information based on hearsay, constituting the probable cause.

(b) When based on hearsay, the 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.

[20] In deciding whether to issue a search warrant, the task of the issuing magistrate 

is simply to make a practical, common-sense 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. Hayworth

v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The duty of the reviewing 

court, which for these purposes includes both the trial court ruling on the 

motion to suppress and the appellate court, is to determine whether the 

magistrate had a substantial basis for concluding that probable cause existed. 

Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997). We review the trial court’s 

substantial basis determination de novo, but we afford significant deference to 

the magistrate’s determination. Brown v. State, 905 N.E.2d 439, 444 (Ind. Ct. 

App. 2009). We consider only the evidence presented to the issuing magistrate 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 9 of 21

and not additional justifications or facts presented after the search. Jaggers, 687 

N.E.2d at 182.

[21] The parties’ dispute focuses almost entirely upon the credibility of the 

confidential informant because the crucial portion of Detective Fortune’s 

probable cause affidavit is based on the informant’s hearsay statements and 

lacks any independent and corroborating investigation by law enforcement. An 

affidavit based on hearsay must contain reliable information establishing the 

informant’s credibility and a factual basis for the hearsay statements or 

information that, in the totality of the circumstances, corroborates the hearsay. 

Ind. Code § 35-33-5-2(b). Uncorroborated hearsay from a source whose 

credibility is itself unknown, standing alone, cannot support a finding of 

probable cause to issue a search warrant. Jaggers, 687 N.E.2d at 182 (citing 

Illinois v. Gates, 462 U.S. 213, 227, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

[22] The trustworthiness of hearsay for purposes of proving probable cause can be 

established in a number of ways, including demonstrating: (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. Methene v. State, 720 N.E.2d 

384, 388 (Ind. Ct. App. 1999).

[23] Cartwright argues that the probable cause affidavit failed to establish the 

informant’s credibility. We agree. The affidavit does not indicate that the 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 10 of 21

informant gave correct information in the past. At the time of the issuance of 

the search warrant, the affidavit states that the informant provided “drug 

information” to an Illinois police officer eight years prior to the interview, but 

there is no explanation of whether the information was correct, accurate, or had 

led to any arrests and convictions. At the suppression hearing, Detective 

Fortune later recalled that the informant’s information had resulted in an arrest 

in Illinois, but we do not consider supporting evidence that is offered after the 

warrant has been issued and acted upon. Jaggers, 687 N.E.2d at 182.

[24] In addition, the affidavit does not include independent police investigation that 

adequately corroborates the informant’s statements. The police confirmed that 

the informant adequately described the location of Cartwright’s house and that 

there was an RV in Cartwright’s front yard. However, those facts are readily 

available to the general public. See Hayworth, 904 N.E.2d at 696 (independent 

investigation inadequate to establish informant’s credibility where investigation 

corroborated only publicly available facts).

[25] The State notes that Detective Fortune had encountered sights and odors 

consistent with methamphetamine manufacturing at Cartwright’s property 

some four years prior to the interview with the informant and asserts that these 

observations corroborate the informant’s statements. However, our review of 

the record reveals that Detective Fortune’s request for a search warrant four 

years prior was rejected by the prosecutor for lack of probable cause. We 

further note that there is no evidence that he attempted to conduct an 

independent investigation to substantiate the allegations of odor that he 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 11 of 21

observed. Thus, we find that his four-year-old observations are stale and do not 

corroborate the informant’s information. See State v. Haines, 774 N.E.2d 984, 

990 (Ind. Ct. App. 2002) (informant’s testimony that he purchased cocaine at 

defendant’s home two to six weeks prior to probable cause hearing was stale 

information that could not support a finding of probable cause), trans. denied.

[26] Regarding the third factor, showing the basis for the informant’s knowledge, the 

affidavit establishes that the informant was generally familiar with the process 

of manufacturing methamphetamine. However, there is nothing in the affidavit 

to establish the informant’s knowledge of Cartwright’s activities other than the 

informant’s own statements. Finally, the informant did not predict conduct or 

activities by Cartwright that are not ordinarily easily predicted.

[27] The State contends that the informant’s credibility was established because his 

admission of involvement in methamphetamine sales was a statement against 

penal interest. A declaration against penal interest can furnish sufficient basis 

for establishing the credibility of an informant, but the declaration must have 

tended to subject the declarant to criminal liability such that a reasonable 

person in the declarant’s position would not have made the statement unless 

believing it to be true. Newby v. State, 701 N.E.2d 593, 599 (Ind. Ct. App. 

1998).

[28] Here, the informant told Detective Fortune, and the affidavit stated, that the 

informant had “purchased or obtained methamphetamine” from Cartwright, at 

Cartwright’s house, “within the last 3 or 4 months.” Appellant’s App. p. 31. 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 12 of 21

The informant had paid Cartwright for methamphetamine and had on another 

occasion given Cartwright boxes of pseudoephedrine-containing pills in

exchange for methamphetamine.

[29] The informant’s admission is not irrefutable evidence of criminal liability, 

particularly because he had not been charged with a crime and the admission

was offered three to four months after the fact, without any independent 

evidence. Indeed, Detective Fortune declined to arrest the informant after the 

interview because he “didn’t have any evidence” of the informant’s alleged 

admitted crimes, thus indicating that the detective believed that the informant’s 

mere statements were insufficient to support a criminal charge. Tr. p. 33. 

Furthermore, in the portion of the affidavit where Detective Fortune explained 

why he believed the informant to be credible, Detective Fortune cited the 

informant’s description of the location of Cartwright’s home, not the 

informant’s admission of criminal activity, as of proof of reliability.

[30] Under these circumstances, a reasonable person in the informant’s position 

could have concluded that, without any independent investigation or 

corroborating evidence from law enforcement, he or she was unlikely to be 

subjected to criminal liability for admitting to buying methamphetamine in the 

past. Argumentative and to the contrary, a person in the informant’s position

could conclude that assisting in an Indiana methamphetamine investigation 

might result in favorable treatment in the pending Illinois criminal matter. We 

cannot conclude that the informant’s statements were sufficiently against his 

penal interests to establish his credibility.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 13 of 21

[31] In the absence of proof of the informant’s credibility or corroboration under the 

totality of the circumstances, the informant’s hearsay statements were 

insufficient to establish probable cause, and the trial court should not have 

issued the search warrant. See Hayworth, 904 N.E.2d at 697 (affidavit did not 

establish probable cause for a search warrant where informant’s claims were 

uncorroborated).

[32] Nevertheless, lack of probable cause does not automatically require the 

suppression of evidence obtained during a search. Id. Indiana law provides:

(a) In a prosecution for a crime or a proceeding to enforce an 

ordinance or a statute defining an infraction, the court may not grant a 

motion to exclude evidence on the grounds that the search or seizure 

by which the evidence was obtained was unlawful if the evidence was 

obtained by a law enforcement officer in good faith.

(b) For purposes of this section, evidence is obtained by a law 

enforcement officer in good faith if:

(1) it is obtained pursuant to:

(A) a search warrant that was properly issued upon a determination of 

probable cause by a neutral and detached magistrate, that is free from 

obvious defects other than nondeliberate errors made in its 

preparation, and that was reasonably believed by the law enforcement 

officer to be valid; or

(B) a state statute, judicial precedent, or court rule that is later declared 

unconstitutional or otherwise invalidated; and

(2) the law enforcement officer, at the time he obtains the evidence, 

has satisfied applicable minimum basic training requirements
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 14 of 21

established by rules adopted by the law enforcement training board 

under IC 5-2-1-9.

Ind. Code § 35-37-4-5 (1983).

[33] Courts applying the statutory good faith exception have concluded that the 

good faith exception does not apply where:

(1) the warrant is based on false information knowingly or recklessly 

supplied; (2) the warrant is facially deficient; (3) the issuing magistrate 

is not detached and neutral; or (4) the affidavit or sworn testimony 

upon which probable cause rests is so lacking in indicia of probable 

cause as to render an official belief in the existence of the warrant 

unreasonable.

Brown, 905 N.E.2d at 445 (quoting Hirshey v. State, 852 N.E.2d 1008, 1013-14

(Ind. Ct. App. 2006), trans. denied). An officer’s reliance on the magistrate’s 

probable cause determination must be objectively reasonable. Id.

[34] In this case, there is no claim that the warrant was facially deficient or that the 

issuing magistrate was not detached and neutral. Cartwright claims Detective 

Fortune omitted material information from the affidavit, engaging in 

“deliberate, reckless, or grossly negligent conduct.” Appellant’s Br. p. 18. 

Specifically, Detective Fortune did not state in the affidavit that the informant 

was incarcerated in the Posey County Jail on an Illinois arrest warrant. 

Cartwright contends that this omission amounted to a misrepresentation that 

may have affected the reviewing magistrate’s consideration of the informant’s 

credibility.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 15 of 21

[35] Detective Fortune testified at the suppression hearing that he withheld the fact 

of the informant’s incarceration not out of any intent to mislead, but rather out 

of concern that the information would reveal the informant’s identity and place 

him in danger. In any event, we conclude that the good faith exception is 

inapplicable here because Detective Fortune’s affidavit is so lacking in indicia of 

probable cause as to render an official belief in the existence of the warrant 

unreasonable. The informant gave Detective Fortune information that was at 

least three to four months old. The officers corroborated only facts that were 

readily available to the general public, i.e., observing an RV parked at the 

home. They did not attempt to confirm the informant’s claim of an ongoing 

methamphetamine dealing operation by placing surveillance on Cartwright’s 

property. In addition, Detective Fortune also relied on his stale four-year-old 

prior observation of Cartwright’s home, which had been rebuffed by the 

prosecutor for lack of probable cause. The officers’ reliance on a warrant issued 

on essentially uncorroborated hearsay from an anonymous informant was 

objectively unreasonable. See Jaggers, 687 N.E.2d at 186.

[36] In the absence of probable cause justifying a search warrant, the officers’ search 

of Cartwright’s home violated his federal and state constitutional protections

against unreasonable search and seizure. Consequently, the trial court abused 

its discretion in admitting evidence obtained as a result of the search. See id.; see 

also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (search warrant 

unsupported by probable cause where police did not independently corroborate 

informant’s statements, so the subsequent search violated defendant’s federal 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 16 of 21

and state constitutional rights and the evidence was inadmissible). The 

erroneously admitted evidence includes Cartwright’s incriminating statements 

in the police car and the transcript of his post-arrest questioning at the jail, 

because the statements were the fruit of his arrest, and being informed of his 

Miranda rights prior to confessing in the police car and at the jail did not purge 

the taint of the unconstitutional search. See, e.g. Clark v. State, 994 N.E.2d 252, 

271 (Ind. 2013) (defendant’s confession to possession of marijuana was not 

admissible where it was not an act of free will and did not purge the taint of 

unlawful detention).

Conclusion

[37] We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

[38] Reversed and remanded.

[39] Mathias, J., concurs.

[40] Baker, J., dissents.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 17 of 21

I N T H E

COURT OF APPEALS OF INDIANA

David B. Cartwright,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

Court of Appeals Case No.

65A01-1404-CR-170

Baker, Judge, dissenting.

[41] I respectfully dissent. I agree with the majority’s conclusion that the probable 

cause affidavit failed to establish the CI’s credibility and, consequently, that 

there was a lack of probable cause. I part ways with the majority, however, in 

the application of the good faith exception.

[42] The good faith exception to the exclusionary rule was originally announced in 

United States v. Leon, 468 U.S. 897 (1984). As explained by our Supreme Court,

Leon held that where police officers rely in objective good faith on a 

warrant later found to be defective, so that suppression would not 

further the exclusionary rule’s objective of deterring police misconduct, 

the Fourth Amendment does not require that the evidence be 

excluded. However, the Supreme Court cautioned in Leon that certain 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 18 of 21

police conduct would not qualify for the exception, including 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.”

Figert v. State, 686 N.E.2d 827, 831 (Ind. 1997) (quoting Leon, 468 U.S. at 923).

[43] In this case, Detective Fortune’s affidavit included the following attestations:

 Detective Fortune spoke with a CI, who reported that a person named 

“Dave,” who lived in a farmhouse in northern Posey County, was 

involved in the manufacture of methamphetamine.

 The CI reported that s/he had purchased methamphetamine from 

“Dave” within the last three or four months.

 The CI reported that s/he had witnessed “Dave” trading 

methamphetamine to other persons in exchange for boxes of 

pseudoephedrine pills, money, and a muzzle loader firearm.

 The CI reported “Dave’s” farmhouse contained assault rifles, shotguns, 

and handguns.

 The CI reported that s/he personally observed “Dave” manufacture 

methamphetamine in the barn and farmhouse. 

 The CI also reported that “Dave” kept anhydrous ammonia, a common 

ingredient used to manufacture methamphetamine, on his property.

 The CI confirmed to Detective Fortune that s/he had experience in the 

illegal manufacture of methamphetamine and was familiar enough with 

the process to be able to identify it.

 The CI stated that s/he had provided useful information regarding drug 

activity to Officer Greg Hannish in southern Illinois approximately eight 

years ago. Detective Fortune contacted Officer Hannish, who confirmed 

the CI’s statement.

 The CI drew a general map of the area leading to “Dave’s” home and a 

map of the layout of the property itself.

 Detective Fortune was familiar with Cartwright, who lives in a 

farmhouse in northern Posey County. The location of Cartwright’s 

residence is consistent with the map drawn by the CI. The layout of 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 19 of 21

Cartwright’s property, including building locations, is consistent with the 

map drawn by the CI.

 Approximately four years earlier, Detective Fortune was driving in the 

area of Cartwright’s residence when he observed a “fog haze” emanating 

from the home and could smell anhydrous ammonia. At that time, the 

prosecutor declined to seek a search warrant based on that information.

Appellant’s App. p. 22-42. I agree that there was insufficient investigation done 

to establish the credibility of the CI. I also agree that each of these alleged facts, 

taken alone, does not establish probable cause. But I believe that the totality of 

these allegations easily exceed the threshold described by the United States 

Supreme Court in Leon. In other words, I do not believe that this affidavit is 

“so lacking in indicia of probable cause as to render official belief in its 

existence entirely unreasonable.” Leon, 468 U.S. at 923.2

[44] This conclusion does not end the inquiry, however, inasmuch as Detective 

Fortune was both the affiant and one of the police officials who executed the 

search warrant. Under certain circumstances, this overlap can render the good 

faith exception inapplicable. In Figert, our Supreme Court considered precisely 

this issue: “[b]ecause the same officer here filed the probable cause affidavit 

and participated in the execution of the warrant based on the affidavit, we must 

decide whether the officer’s reliance on the warrant was entirely unreasonable 

 

2 The fact that Detective Cartwright omitted the information that the CI was currently incarcerated in the 

Posey County Jail does not change my analysis. The detective was merely withholding that information in 

an attempt to protect the identity and safety of the CI, which seems entirely prudent given the threatening 

statements made by Cartwright in the CI’s presence.
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 20 of 21

notwithstanding the magistrate’s decision to issue the warrant.” 686 N.E.2d at 

831-32.

[45] The Figert Court noted that “[m]ost Indiana appellate decisions upholding the 

admission of evidence under the good faith exception involved reliance on 

hearsay whose credibility was later found to be inadequately established.” Id. at 

832. In Figert, however, “the officer obtained the warrant primarily based on 

his own observations and firsthand knowledge.” Id. Under those 

circumstances, “the officer’s own opinion . . . cannot be relied on to authorize a 

search not supported by the facts.” Id. at 833. Consequently, the Figert Court 

found that the officer’s reliance was not objectively reasonable under Leon, and 

the good faith exception was inapplicable.

[46] Here, as opposed to Figert, Detective Fortune was relying primarily on 

“technically flawed hearsay . . . that in hindsight might make reliance on the 

warrant objectively reasonable.” Id. at 832. The vast majority of allegations 

supporting the request for a search warrant rested solely on the CI. And while I 

ultimately agree that the credibility of the CI was insufficiently established such 

that the hearsay amounted to probable cause, Detective Fortune’s reliance on 

the CI’s allegations and the warrant itself were objectively reasonable. As a 

result, the fact that Detective Fortune both signed the affidavit and helped to 

execute the warrant do not render the good faith exception inapplicable. See

United States v. Kinison, 710 F.3d 678, 686-87 (6th Cir. 2013) (holding that where 

the government was not relying on subjective knowledge of the affiant, the fact 
Court of Appeals of Indiana | Opinion 65A01-1404-CR-170 | February 25, 2015 Page 21 of 21

that affiant also helped to execute the warrant does not prevent application of 

the good faith exception).

Because I believe that this warrant was executed in good faith, notwithstanding 

the lack of probable cause, I would affirm the trial court’s admission of the 

evidence seized in the execution of that warrant.