Court of Appeals of Indiana | Opinion 22A

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A TTORNEY FOR A PPELLANT Paul J. Podlejski Anderson, Indiana A TTORNEY S FOR A PPELLEE 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

Kri stopher M. Wainscott , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. May 16, 2023 Court of Appeals Ca se No. 22A

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- 1817 Interlocutory Appeal from the Madison Circuit Court The Honorable David A. Happe, Judge Trial Court Cause No. 48C04

- 2106

- F1

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Opinion by Judge Weissmann Judges Bailey and Brown concur.Court of Appeals of Indiana | Opinion 22A

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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 a ccusation that Wainscott molested her

. After police seized Wainscott’s phone

—

but before they analyzed its contents

— the v ictim 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 th e 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, t he State had no obligation to inform the magistrate of the partial recantation

. 

### Facts

[3] In late December 2020 , a f ather 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 h imself and ha d sex with her

. Victim also expressed anxiety that her actions would get Wainscott in trouble.Court of Appeals of Indiana | Opinion 22A

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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 pornograp hy, 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

m other , who said she had “cornered” Victim , impressing upon her the importance of being truthful, warn ing Victim that the State might “ put [Wainscott] in prison for 40 y ears ” and “take him away from his family

. ” Tr., p. 26. In response, Vict im said she had fabricated parts of the allegat ions against Wainscott.

[6] Although Detective Preston did not believe Victim’s recantation, he contacted the prosecutor to explain the sit uation

. A gree ing that the recantation seemed suspect , the prosecutor recommended against alerting the magistrate judge who issued the search warrant a nd to continue with the scheduled forensic analysis of Wainscott’s phone. A month later, law enforcement search ed the phone and found voyeuristic images of Victim and, in total, 171 images of child pornography

. The State subsequently filed cha rges against Wainscott alleging child molestation, possession of child pornography, and voyeurism

.

[7] Before his trial, Wainscott moved to suppress t he evidence obtained through the search warrant. A t a hearing on the matter, Wainscott argued that when VictimCourt of Appeals of Indiana | Opinion 22A

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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 Wainsco t t, 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

. T he 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 suppo rt 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 ma ke 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. WeCourt of Appeals of Indiana | Opinion 22A

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“focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause.” Id. Signif icant deference is given to the issuing magistrate’s judgment. Id.



### Reverse Franks Claim

[10] In Franks v. Delaware , the Uni ted States Supreme Court held that wh en 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, t he 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 t hat 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 bet ween 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 madeCourt of Appeals of Indiana | Opinion 22A

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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 argu es 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

. A ssuming 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 contradi cts 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 appl ying Ind. Code § 35

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- 5

- 7 (f) ). Thus, p olice 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 can not affect the search warrant’s validity.

[13] Besides Victim’s partial recantation, Wainscott also a rgues that Detective Preston’s affidavit supporting the search warran t omitted material information about Victim’s credibility. Wainscott alleges that the affidavit “cherry pick[ed]” favorable facts and otherwise omitted facts that might have work ed 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 theCourt of Appeals of Indiana | Opinion 22A

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magistrate. Ex hs., 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

.

Bail ey, J., and Brown, J., concur

.