FILED May 16 2023, 8:38 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Theodore E. Rokita Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristopher M. Wainscott, May 16, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-1817 v. Interlocutory Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-2106-F1-1685
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 1 of 7 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.
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 2 of 7 [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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 3 of 7 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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 4 of 7 “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).
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FILED May 16 2023, 8:38 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Theodore E. Rokita Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristopher M. Wainscott, May 16, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-1817 v. Interlocutory Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-2106-F1-1685
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 1 of 7 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.
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 2 of 7 [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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 3 of 7 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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 4 of 7 “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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 5 of 7 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
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 6 of 7 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.
Court of Appeals of Indiana | Opinion 22A-CR-1817 | May 16, 2023 Page 7 of 7