Dolliver v. State

598 N.E.2d 525, 1992 Ind. LEXIS 205, 1992 WL 215545

• Court: Indiana Supreme Court
• Decided: September 9, 1992
• Docket: 30S00-9012-CR-823
• Status: Published

Opinions

KRAHULIK, Justice.

Larry A. Dolliver (Appellant-Defendant) seeks reversal of his convictions for possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, maintaining a common nuisance, and possession of a schedule IV controlled substance with intent to deliver. A jury found him guilty of all four counts and also determined that he was an habitual offender. The trial court sentenced him to concurrent sentences totalling 80 years.

Dolliver presents two issues for our review which we restate as follows:

(1) Whether the trial court erred by failing to grant Dolliver's requests for suppression of evidence, and

(2) Whether the 80-year sentence is manifestly unreasonable.

Because we hold that the trial court erred in failing to grant Dolliver's motions to suppress and that, therefore, Dolliver is entitled to a new trial, we do not need to determine whether or not the sentence imposed was manifestly unreasonable.

Facts

The pertinent facts in the case are that at approximately 9:00 a.m. on January 2, 1990, the State Police Post in Pendleton, Indiana, received an anonymous phone call. Detective Ken Houck took the call. Houck did not recognize the caller's voice and the caller did not identify himself, but proceeded to tell Houck that a man by the name of Larry Dolliver was selling cocaine. The unidentified caller gave Houck the approximate location of the trailer in which Dolliver lived and described Dolliver as being approximately 40 years old with brown hair and weighing approximately 175 pounds. The caller also told Houck that Dolliver had been in prison at the Pendleton Reformatory on two prior occasions. The caller then told Houck that the caller's sister was involved in this matter and that Dolliver was "f ___ing up" a lot of people's lives. He further told Houck that Dolliver was selling from his trailer, and that he travelled around in a Cadillac, and also drove a four-wheel drive truck. Additionally, the caller told Houck that the caller's ex-girl friend was into drugs "kind of heavy" and that the caller had found out that it was the same "m_ __r-f____ing guy" who had got ten his girl friend in trouble and caused the two of them to break up. The caller also told Houck that Dolliver didn't work, but merely sold drugs. Finally, the caller stated that his sister had been at the trailer the night before and that Dolliver had a lot of drugs in his trailer. No identification of the sister or information establishing her as a credible or reliable informant was asked for or given. The caller never stated that he had personally been in the resi-denee of Dolliver or that he personally had seen Dolliver either using or selling drugs and, finally, the caller continued to refuse to identify himself in any manner.

Following the telephone conversation, Houck investigated Dolliver by running a driver's license search, which revealed Dol-liver's address, social security number and date of birth. He also confirmed that Dol-liver had, in fact, been convicted of a felony and that other officers who were generally familiar with Dolliver considered him to be a professional criminal. No surveillance of the trailer was conducted and no information was obtained indicating any unusual amount of traffic to or from the trailer which would tend to confirm that drug sales were being transacted from Dolliver's residence.

Following this one or two-day investigation, Houck contacted the Hancock County Prosecutor's office and was given a request for search warrant form to fill out. He prepared the form and presented it to the Hancock County Court. A search warrant was issued and was executed on January 4, 1990.

When Houck and other state troopers served the warrant, Dolliver was not at home, but his sister was present and, after being presented with the warrant, permitted the officers to search the trailer. Marijuana and cocaine, as well as lockbox keys, were found in the trailer during the search. While the search was taking place, Dolliver returned and started to pull into his driveway, but upon seeing the officers immediately backed out and left. He was followed by Trooper Whitaker who initially lost sight of the vehicle, but eventually stopped a vehicle he believed to be the one he had seen at the residence. Whitaker arrested Larry Dolliver based on the presence of illegal drugs found in the Dolliver trailer during the search. Dolliver's car was towed to the State Police Post at Pen-dleton, Indiana, and five to six hours later a warrantless search of the car was conducted, during which additional drugs were found in the car. Cocaine was also found in Dolliver's pockets during the booking process at the Hancock County Jail. After the booking, Dolliver was advised of his Miranda rights prior to questioning, and he requested a lawyer; but, nevertheless, Houck continued the interrogation and received a statement from Dolliver. This statement was subsequently suppressed as being in violation of Dolliver's rights under the Sixth Amendment to the United States Constitution and was not admitted into evidence. During the trial, however, the drugs discovered at the residence, as well as the drugs discovered in the car and on Dolliver's person, were admitted into evidence over Dolliver's objections and after the court had denied Dolliver's motions to suppress such evidence.

The motions to suppress were premised on the fact that a recording of the anonymous telephone call to Houck had been made and, at Dolliver's request, transcribed. Dolliver's contention, both in the motions to suppress and in this appeal, is that the tape recording dramatically clashes with the facts alleged in the affidavit prepared by Trooper Houck to request a search warrant. In turn, Dolliver argues that the search conducted pursuant to this warrant was in violation of the Fourth Amendment to the United States Constitution and Article 1 Section 11 of the Indiana Constitution. Because of this violation of his constitutional rights, Dolliver contends that the evidence of the trailer search as well as the auto search and personal search should be suppressed. We agree.

Invalidity of the Search Warrant

In Callender v. State (1922), 193 Ind. 91, 138 N.E. 817, this Court held that evidence gained as a result of a constitutionally invalid search and seizure of property would not be admissible in a subsequent prosecution. This decision predated by approximately 40 years the United States Supreme Court opinion of Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 LEd.2d 1081, which required the states to exclude evidence obtained in violation of the Fourth Amendment to the United States Constitution. These two cases have been consistently followed by this Court to suppress evidence gained as a result of an unconstitutional search and seizure. We most recently recognized this principle in Benefiel v. State (1991), Ind., 578 N.E.2d 338, cert. den. (1992), - U.S. -, 112 S.Ct. 2971, 119 LEd.2d 591, and Everroad v. State (1992), Ind., 590 N.E.2d 567.

In Benefiel v. State, we recognized the above-cited principle as well as an exception to that principle in a situation where: the search is conducted under emergency circumstances involving injury or imminent danger to a person's life. However, in Benefiel we reiterated the general rule of law that if the affidavits presented to the trial judge requesting a search warrant contained "second-hand hearsay information", it would be insufficient as far as search for property was concerned. 578 N.E.2d at 344. Most recently, in Everroad v. State, we discussed the effect of an affidavit for probable cause based on hearsay and held that a search warrant could be based on hearsay only if the affidavit contained either "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 "information that establishes that the totality of the circumstances corroborates the hearsay." 590 N.E.2d at 570, quoting Ind. Code § 35-33-5-2(a-b). In Everroad, we held that neither of the above requirements was met and concluded that "the hearsay mountain is insurmountable, and does not constitute probable cause." 590 N.E.2d at 571. We must reach the same conclusion here.

A comparison of the recorded anonymous telephone call with the affidavit prepared by Houck reveals extreme discrepancies. In the search warrant affidavit, after describing the location to be searched, Houck swears "there is probable cause to believe that certain property is concealed in [such location] which constitutes unlawfully obtained property, contraband, evidence of a crime or other illegal property." We hold that the information received by Houck from the anonymous call, combined with the information gathered by Houck as a result of his investigation, could not amount to probable cause to believe the above statement. The caller did not identify himself and did not establish his personal knowledge of any of the claims that he made concerning Dolliver's possession of narcotics. Based on the information available to Houck, it was equally conceivable that Dolliver was a drug dealer or that the caller was angry at Dolliver for the perceived effect that Dolliver may have had on the caller's sister and ex-girl friend. The fact that Dolliver lived in a trailer, drove a Cadillac and a four-wheel drive vehicle, and had been previously convicted of a crime clearly did not constitute probable cause to believe that the anonymous caller was telling the truth. Perhaps more investigation by the state police officer, such as placing Dolliver's residence under surveillance, may have eventually resulted in probable cause to believe that narcotics were contained in the trailer; but, simply stated, the evidence that Trooper Houck had available to him at the time he prepared the affidavit did not constitute probable cause.

There are other discrepancies between the recorded telephone call and the search warrant affidavit. The affidavit states that the affiant had received information from "a reliable and confidential informant which facts the informant stated were within his personal knowledge." The recorded anonymous call simply does not comport with this allegation. The anonymous phone caller was by no stretch of the imagination a reliable informant. The transcript reveals that, contrary to the affidavit, the caller did not state that he was at Dolliver's residence and did not state that he personally observed 40 pounds of marijuana and a kilo of cocaine as alleged in the affidavit.

Clearly, when the facts in an affidavit requesting a search warrant are at such variance with the truth as revealed by the transcribed anonymous telephone call, a warrant issued pursuant to such affidavit is invalid. Equally obvious is that a search and seizure conducted pursuant to such invalid warrant violates the citizen's rights to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution and Article 1 Section 11 of the Indiana Constitution. Here the affidavit stated that the confidential informant was "reliable" when, in fact, there was no basis to conclude that the anonymous caller was reliable. Also, the affidavit swears that this reliable, confidential informant made personal observations of large amounts of drugs when, in fact, the anonymous caller made no such representation. Dolliver's constitutional rights were violated when the search warrant was issued pursuant to this misleading and unsubstantiated affidavit.

Effects of Ilegal Search

The State urges that we recognize and apply the "good faith" exception carved out by the United States Supreme Court in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 LEd.2d 677, reh'g. den. 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942. The State reasons that conceding the warrant to have been invalidly issued, the officers who executed it were acting in good faith. Therefore, the State contends that the evidence obtained should not be suppressed. We disagree.

In Blalock v. State (1985), 483 N.E.2d 439, this Court, in dicta, recognized the good faith exception to the exelusion-ary rule articulated in Leon. That good faith exception, however, cannot be so broadly construed as to obliterate the exclusionary rule. The Leon Court itself recognized the limited applicability of the "good faith" exception in holding that:

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.

468 U.S. at 923, 104 S.Ct. at 3421. The State urges that the trial judge should be the sole determiner of whether or not Houck had acted in good faith in preparing the affidavit. Although we agree with this general proposition, we also must fulfill our role as an appellate tribunal and determine whether the record reveals such inconsistencies between the anonymous telephone call and the allegations of fact sworn to by Houck that, at best, reveal a reckless disregard of the truth in the preparation of the affidavit. The facts contained in this record force us to conclude that the search warrant in this case was obtained as a result of an affidavit that Houck either knew was false or would have known was false but for a reckless disregard for the truth.

During the suppression hearing, Houck testified that he was unaware that the telephone conversation was being taped, and that he made "mistakes". Houck's testimony may very well have been truthful, but his lack of mens rea in preparing the affidavit cannot change the fact that the affidavit so flagrantly misrepresented the nature of Houck's knowledge so as to render the judge's issuance of a warrant based on such affidavit a nullity. Therefore, we must conclude that all evidence obtained as a result of the invalid warrant must be suppressed. This, logically, applies equally to the search of Dolliver's automobile and person because, as the State admits, neither would have occurred but for the discovery of drugs in Dolliver's trailer. Clearly, all of the evidence requested to be suppressed constitutes "fruit of the poisonous tree" and, therefore, should be excluded. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 LEd.2d 441.

Conclusion

We, therefore, hold that the trial court erred in denying Dolliver's motions to suppress and that such evidence should not have been admitted during the trial. This error requires that Dolliver's convictions be reversed. Consequently, Dolliver's conviec-tions are reversed and this cause is remanded to the trial court for a new trial.

SHEPARD, C.J., and DeBRULER and DICKSON, JJ., concur. GIVAN, J., dissents, with separate opinion.