Court of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 1 of 10 A TTORNEY S FOR A PPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana A TTORNEY FOR A PPELLEE Jay T. Hirschauer Logansport, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

State of Indiana , Appellant

- Plaintiff , v. 

### Michael Stone , Appellee

- Defendant August 31, 2020 Court of Appeals Ca se No. 20A

- CR

- 421 Appeal from the Cass Superior Court The Honorable Lisa Swaim , Judge The Honorable Leo T. Burns, Senior Judge Trial Court Cause No. 09 D 0 2

- 1907

- F4

- 6

Altice , Judge . Case Summary

[1] The State appea ls from the trial court’s grant of Michael Stone’s motion to suppress evidence found following the execution of a search warrant at hisCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 2 of 10 residence. The trial court determined that the warrant was not supported by probable cause and that the officers executing the warrant did not rely on the warrant in good faith.

[2] We reverse and remand. Facts & Procedural History

[3] In May 2019 , Detective Joseph Nies with the Cass County Sheriff’s Department was investigating the theft of firearms from two local residences. The first involved a Sig Sau e r 9

- milimeter handgun owned by Cory Zeider and taken from a closet in his residence on or about March 7, 2019. Zeider reported no sign of forced entry and named two possible suspects

– Brad Bell and Cody Putnam

– who were friends of Zeider and knew where he kept a spare key.

[4] The other stolen firearm was reported by Thomas Prater on May 1, 2019. Prater reported that his Ruger P

- 94 had been stolen from h is house, and he named Putnam as a possible suspect. Putnam had previously lived with him and knew about Prater’s guns

.
[5] Detective Nies entered the serial numbers for the stole n firearms into a national database. He received a hit on the Ruger, which had been recovered during a traffic stop in Michigan on May 2, 2019

. Maverick Waltz was in possession of the Ruger at the time of the stop. Detective Nies traveled to Michigan on May 17, 2019, and he interviewed Waltz in jail. Waltz informed Detective Nies that he had received the Ruger from Putnam in exchange for debt forgiveness.Court of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 3 of 10 Because the firearm was worth more than the debt, Waltz reported that he also gave Putnam some cash in the exchange.

[6] After locating Putnam, Detectiv e Nies interviewed him on May 23, 2019. Putnam confessed to burglarizing both residences and taking the firearms. He indicated that he used a card to enter Zieder ’s residence and a spare key hidden outside to enter Prater’s residence. Regarding Waltz’s possession of the Ruger, Putnam indicated that he owed Waltz a debt, so he traded the Ruger for the debt and an additional sum of money. Additionally, Putnam reported that he had sold the Sig Sau e r to Stone for $400 about three weeks ago because Stone lik ed th e gun and wanted to keep it for himself. Putnam then identified Stone in a photo array. Though Detective Nies did not know him, Stone was known to the Cass County Drug Task Force and he had prior convictions for dealing methamphetamine and for a felony handgun charge. With information from other officers, Detective Nies determined Stone ’s address , which was a single

family home in Logansport.

[7] That same day , Detective Nies applied for a search warrant and testified at a p robable cause hearing to the facts set out above. After hearing the evidence, the trial court authorized a search of Stone ’s residence for a Sig Sauer P

- 320 9

- milimeter handgun. The search , which was conducted in the early morning hours of May 24, 2019, resulted in the discovery of multiple firearms , though not the Sig Sauer , as well as drugs and $6000 in cash

. Stone was arrested at the scene for possession of methamphetamine.Court of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 4 of 10 [8] On July 23 , 2019, the State charged S t one with Level 4 felony unlawful possess ion of a firearm by a serious violent felon and Level 5 felony possession of methamphetamine. In subsequent amendments, the State added charges of Level 5 felony possession of a narcotic drug (hydrocodone) and Class A misdemeanor theft

.
[9] Stone filed a motion to suppress all evidence seized as a result of the search

warran t, and the trial court held a suppression hearing on October 15, 2019. The trial court granted the motion to suppress on Dece mber 20, 2019 , expressly determining that “ [t]he analysis of the facts in this case is controlled by the Indiana Supreme court’s holding in State v. Spillers , 847 N.E.2d 949 (Ind. 2006). ” Appellant’s Appendix at 81. The State now appeals , arguing that the warrant was supported by probable cause and , thus, that the trial court erred in suppressing the evidence found during execution of the search warrant.
Discussion & Decision

[10] Both t he Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require probable cause for the issuance of a search warrant , which we have explained is a fluid concept incapable of precise definition and must be decided based on the facts of each case. State v. Shipman , 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013) . In deciding whether to issue a search warrant, a judge’s task is “ simply to make a practical, commonsense decision whether, given all the circumstances set forth in theCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 5 of 10 affidavit, there is a fair probability that evidence of a c rime will be found in a particular place. ” Id

. ; see also Spillers , 847 N.E.2d at 952

- 53

.
[11] On review, we consider whether the issuing judge had a substantial basis for concluding that probable cause existed. Spillers , 847 N.E.2d at 95 3. A substantial basi s requires the reviewing court, with significant deference to the issuing judge’s determination, to “ focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable
cause. ” Id

. While we give substantia l deference to the issuing judge’s determination, our review of the t rial court’s substantial basis determination following a motion to suppres s is reviewed by this court de novo. Id

. “In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant.” Smith v. State , 982 N.E.2d 393, 405 (Ind. Ct. App. 2013) (quoting Mehring v. State , 88 4 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied ) , trans
. denied

.
[12] Where a warrant is sought based on hearsay information, the probable cause affidavit (or testimony, as in this case) must either: (1) contain reliable information establishing the credi bility 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. Sp illers , 847 N.E.2d at 953

- 54 (citing Ind. Code § 35

- 33

- 5

- 2(b) and I.C. § 31

- 35

- 5

- 8(a)(1) ). The trustworthiness of hearsay in this context can be established in a number ofCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 6 of 10 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 demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. Id

. at 954. This list is not e xclusive and, depending on the facts, other considerations may come into play. Id

. Relevant here, an informant’s declaration against penal interest can furnish sufficient basis for establishing the informant’s credibility. S ee id

. ; Shipman , 987 N.E.2d at 112 7

.
[13] In Spillers , our Supreme Court considered whether the informant’s statement qualified as one against penal interest. Craib, the informant, had been caught by police with more than three grams of cocaine , which was found during the execution of a search warrant at his home

. Spillers , 847 N.E.2d at 956. After his arrest , Craib informed the detectives that Spillers was his drug source and that he had obtained cocaine from S pillers more than ten times over the last few months, most recently that same day. Craib also provided Spiller’s address and the make and model of his car , which were facts readily available to the general public.

[14] The Court observed that statements by inf ormants have qualif ied as against penal interest and been found sufficient to establish probable cause for issuance of a search warrant in cases where : the informant either volunteered inculpatory information after being arrested for a minor offense or for an offense only indirectly related to the information given to police, or theCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 7 of 10 informant was not under arrest at all and voluntarily gave police inculpatory information that the police would not otherwise have necessarily known or suspected

. Id

. at 95 5

. After noting several such cases, t he Court summarized , “ [t] he underlying thread binding these cases together is that an informant, after arrest or confrontation by police, admitted committing criminal offenses under circumstances in which the crimes othe rwise would likely have gone undetected. ” Id . at 956. Indeed, the Court recognized , people do not lightly admit a crime and place critical evidence in the hands of the police by their own admissions and, thus, such admissions carry an indicia of credibil ity sufficient to support a finding of probable cause to search. Id

.
[15] The Court found such indicia of credibility lacking in Spillers because Craib had been “caught ‘red handed ’ with drugs in his possession before naming his purported supplier.” Id . at 956. Though he admitted committing additional crimes of possession of cocaine, the Court noted that “ his tip was less a statement against his penal interest than an obvious attempt to curry favor with the police. ” Id

. (citing Williamson v. United States , 512 U.S. 594, 607

- 08 (1994) (“A person arrested in incriminating circumstances has a strong incentive to shift blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchange for cooperat ion.”) )

. Because the decision to reveal his source did not subject him to any additional criminal liability , the Court conclud ed that “ under the circumstances Craib ’ s declarations were not against his penal interest andCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 8 of 10 therefore did not demonstrate that Craib was a credible source of information. ” Id . at 956

- 57.

[16] Similarly, in th e case at hand, the trial court found that Putnam’s statements were not declarations against penal interest. We cannot agree , as the facts of this case are clearly distinguishabl e . Here, Putnam was not under arrest when he spoke with Detective Nies and the evidence against him was slim

– far from being caught red handed. Two victims had listed Putnam as a possible suspect in the separate thefts of firearm s because he was a friend who had access to each home. Further, the Ruger had been recovered shortly after it went missing in the possession of another individual

– Waltz, who, while in jail, named Pu tnam as the source of the firearm. This was the only actual evidence linking Putnam to the theft of the Ruger, and no evidence linked him to the theft of the Sig Sauer , which had occurred about two months earlier

.
[17] During the interview with Detective Nies, Putnam admitted to burglarizing both residences and stealing the firearms, and he p rovided incriminating details not known by police , including describing how he gained entrance to each residence

. Putnam also indicated that he transferred the Ruger to Wa ltz in exchange for debt forgiveness and cash, which was the same account given by Waltz. With regard to the Sig Sauer, Putnam reported that he sold the stolen firearm to Stone in exchange for $400

. Thus, Putnam not only informed police where the stolen Sig Sauer might be recovered, he also made himself subject to a new criminal charge, based on the criminal transfer of a firearm to a serious violent felon. See Ind. Code § 35

- 47

- 2.5

- 16(b)(1) (“A pers on who provides aCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 9 of 10 firearm to an individual who the person knows ... is ineligible to purchase or otherwise receive or possess a firearm for any reason other than the person ’ s age...commits criminal transfer of a firearm, a Level 5 felony.” ).

[18] Nothing about Putn am’s admissions indicates that he was attempting to shift blame , downplay his role in the offense s , or curry favor with the police. Rather, we find his statements to be true declarations against his penal interest , subjecting him to criminal liability and demonstrating that he was a credible source of information. The trial court erred in granting the motion to suppress based on Spillers

.
[19] Alternatively, Stone argues that e ven crediti ng Putnam’s statement, there was insufficient probable cause for issuance of the warrant because the State failed to establish a sufficient nexus between the Sig Sauer and his reside nce. He asserts that there is “absolutely nothing in the record to support a belief that Stone possessed the handgun at his residence .” Appellee’s Brief at 13.

[20] To obtain a search warrant, the State must establish a fair probability that the thing sought

– here the stolen Sig Sauer

– will be found in the particular location being searched. See Fry v. State , 25 N.E.3d at 237, 245

- 46 (In d. Ct. App. 2015) , trans. denied

. Here, Putnam indicated that Stone purchased the Sig Sauer from him three weeks earlier for $400 and that Stone liked the gun and wanted to keep it for himself. Under the circumstances , it was reasonable for Detective Nies to believe that the stolen gun would be found at Stone’s home

. See Allen v. State , 798 N.E.2d 490, 49 7

- 99 (Ind. Ct. App. 2003) (permittingCourt of Appeals of Indiana | Opinion 20A

- CR

- 421 | August 31, 2020 Page 10 of 10 search for murder weapon s at apartment of one suspect’s cousin where suspects began spending time after the series of murders that began two months prior to the execution of the search warrant and noting that “ handguns and rifles are the type of property that a person reasonably could be expected to keep for at least a period of a month and a half ”) ; Foster v. State , 633 N.E.2d 337, 345 (Ind. Ct. App. 1994) (finding that a handgun , unlike controlled substances that can be expected to be consumed or distributed, was the “sort of property that the perpetrator reasonably could be expected to keep” and concluding that warrant for search of suspect’s residence issued twenty
- eight days after murder was not stale ).

[21] In sum, we find that a reasonably prudent person cou ld make a practical,
common - sense determination, given all the circumstances set forth in Detective Nies’s testimony, that there was a fair probability the stolen Sig Sauer would be found at Stone ’s home

. Thus, the trial court erred in suppressing the evi dence seized during the execution of the search warrant
.
[22] Reversed and remanded.
Bailey, J. and Crone, J., concur.