Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 1 of 7

ATTORNEY FOR APPELLANT

Paul J. Podlejski

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kristopher M. Wainscott,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 16, 2023

Court of Appeals Case No.

22A-CR-1817

Interlocutory Appeal from the 

Madison Circuit Court

The Honorable David A. Happe, 

Judge

Trial Court Cause No.

48C04-2106-F1-1685

Opinion by Judge Weissmann

Judges Bailey and Brown concur.
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Weissmann, Judge.

[1] Police obtained a search warrant for Kristopher Wainscott’s phone based on his 

11-year-old niece’s accusation that Wainscott molested her. After police seized 

Wainscott’s phone—but before they analyzed its contents—the victim partially 

recanted her allegations against Wainscott. Doubting the veracity of the

recantation, the investigating detective and local prosecutor proceeded with 

analyzing Wainscott’s phone without informing the magistrate who issued the 

warrant of the new development. 

[2] Wainscott moved to suppress all evidence derived from the search warrant, 

arguing that the State’s failure to inform the magistrate of the victim’s

recantation constituted an omission of material facts that rendered the warrant 

invalid. The trial court denied Wainscott’s motion, and he filed this 

interlocutory appeal. We affirm the trial court’s judgment. Because the warrant 

had already been executed by the seizure of the phone, the State had no 

obligation to inform the magistrate of the partial recantation.

Facts

[3] In late December 2020, a father reported to police that his daughter (Victim)

had been molested. When Detective Dave Preston interviewed Victim, she told 

him the incident occurred at a birthday party at her grandmother’s house a few 

months earlier. According to Victim, Wainscott followed her into a bathroom 

and allegedly exposed himself and had sex with her. Victim also expressed 

anxiety that her actions would get Wainscott in trouble.
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[4] Detective Preston applied for a search warrant on January 5, 2023. The warrant

sought to search Wainscott’s residence for electronic devices capable of storing 

and creating child pornography, as well as images and videos from the subject 

birthday party. A magistrate judge approved the warrant, and law enforcement

seized Wainscott’s phone from his home two days later. 

[5] On February 1, Wainscott’s attorney informed Detective Preston that Victim

had recanted the allegations. In response, Detective Preston talked to Victim’s 

mother, who said she had “cornered” Victim, impressing upon her the 

importance of being truthful, warning Victim that the State might “put 

[Wainscott] in prison for 40 years” and “take him away from his family.” Tr., 

p. 26. In response, Victim said she had fabricated parts of the allegations against 

Wainscott. 

[6] Although Detective Preston did not believe Victim’s recantation, he contacted 

the prosecutor to explain the situation. Agreeing that the recantation seemed 

suspect, the prosecutor recommended against alerting the magistrate judge who 

issued the search warrant and to continue with the scheduled forensic analysis 

of Wainscott’s phone. A month later, law enforcement searched the phone and 

found voyeuristic images of Victim and, in total, 171 images of child 

pornography. The State subsequently filed charges against Wainscott alleging 

child molestation, possession of child pornography, and voyeurism.

[7] Before his trial, Wainscott moved to suppress the evidence obtained through the 

search warrant. At a hearing on the matter, Wainscott argued that when Victim
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partially recanted, the warrant was not fully executed because the contents of 

the phone had not yet been analyzed. Therefore, according to Wainscott,

Detective Preston had a duty to inform the magistrate of the newly discovered 

material fact, and his failure to do so destroyed the warrant’s basis for probable 

cause and rendered it invalid. The trial court denied the motion to suppress, and 

Wainscott now brings this interlocutory appeal.

Discussion and Decision

[8] We review a trial court’s denial of a motion to suppress “similar to other 

sufficiency issues.” Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005). “We 

determine whether substantial evidence of probative value exists to support the 

trial court's ruling.” Id. We do not reweigh the evidence and construe 

conflicting evidence towards upholding the trial court’s ruling. Id. However, 

unlike other sufficiency matters, we also consider uncontested evidence that is 

favorable to the defendant. Keeylen v. State, 14 N.E.3d 865, 871 (Ind. Ct. App. 

2014).

[9] “In deciding whether to issue a search warrant, ‘the 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.’” Query v. 

State, 745 N.E.2d 769, 771 (Ind. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 

238 (1983)). Reviewing courts must determine “whether the issuing magistrate 

had a substantial basis for concluding that probable cause existed.” Id. We 
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“focus on whether reasonable inferences drawn from the totality of the evidence

support the determination of probable cause.” Id. Significant deference is given

to the issuing magistrate’s judgment. Id.

Reverse Franks Claim

[10] In Franks v. Delaware, the United States Supreme Court held that when the 

defendant makes a substantial preliminary showing that the supporting affidavit 

for a search warrant knowingly or intentionally contains a false statement, or 

reflects a “reckless disregard for the truth,” the trial court must hold a hearing. 

438 U.S. 154, 155-56 (1978). If, at the hearing, the court determines that “the 

rest of the affidavit is insufficient to establish probable cause, ‘the search 

warrant must be voided’ and any evidence obtained from its fruits excluded.” 

Keeylen, 14 N.E.3d at 872 (quoting Franks, 438 U.S. at 156). A defendant makes 

a ‘reverse’ Franks claim when alleging that the State omitted information

material to the probable cause analysis. Keeylen, 14 N.E.3d at 872.

[11] Derivative of its Franks obligations, the State must update the judge that issued 

a warrant of any newly discovered material information between the warrant’s 

issuance and its execution. Query, 745 N.E.2d at 772 (“the magistrate must be 

made aware of any ‘material’ new or correcting information” before the 

warrant’s execution). “Material information” is information which has any 

tendency to “cast doubt on the existence of probable cause.” Id. Essentially, in 

the “situation where the police learned new information after receiving a 

warrant, but before executing the warrant,” the issuing magistrate must be made 
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aware of the information to ensure probable cause still supports the warrant. 

Ware v. State, 859 N.E.2d 708, 708 (Ind. Ct. App. 2007) (emphasis added).

[12] Wainscott seeks relief under this version of a reverse Franks claim. He argues

that Victim’s recantation happened before the search warrant had been fully 

executed because the contents of the phone seized through the warrant had not 

yet been analyzed. Assuming that Victim’s recantation is a material fact, this 

would have required the State to inform the magistrate judge of this 

development. But Indiana law contradicts this interpretation of a search 

warrant’s execution. “[A] warrant authorizing a search, testing, or other 

analysis of an item, tangible or intangible, is deemed executed when the item is 

seized by a law enforcement officer.” Ind. Code § 35-33-5-7(f) (2020) (emphasis 

added); see also Brown v. Eaton, 164 N.E.3d 153, 163-66 (Ind. Ct. App. 2021)

(interpreting and applying Ind. Code § 35-33-5-7(f)). Thus, police fully executed 

the search warrant by seizing Wainscott’s phone. Victim’s partial recantation 

occurred nearly a month after the phone’s seizure and consequently cannot 

affect the search warrant’s validity.

[13] Besides Victim’s partial recantation, Wainscott also argues that Detective 

Preston’s affidavit supporting the search warrant omitted material information

about Victim’s credibility. Wainscott alleges that the affidavit “cherry pick[ed]”

favorable facts and otherwise omitted facts that might have worked against a 

finding of probable cause. Appellant’s Br., p. 15. While Wainscott admits that

the affidavit described Victim as “worried that things weren’t true” and 

“worried about getting in trouble,” he still contends the affidavit misled the 
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magistrate. Exhs., p. 14. We disagree. The affidavit reflects a fair and accurate 

rendition of the events prompting Detective Preston’s request for a search 

warrant and supports a finding of probable cause. Wainscott has not met the 

high bar of proving that the State “engaged in a deliberate falsehood or reckless 

disregard for the truth.” Keeylen, 14 N.E.3d at 877.

[14] As the State had no duty to inform the magistrate about Victim’s partial 

recantation occurring after execution of the warrant and because probable cause 

otherwise supported the search warrant, we affirm. 

Bailey, J., and Brown, J., concur.