Matter of MRD

482 N.E.2d 306
CourtIndiana Court of Appeals
DecidedAugust 29, 1985
Docket2-485A105
StatusPublished

This text of 482 N.E.2d 306 (Matter of MRD) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of MRD, 482 N.E.2d 306 (Ind. Ct. App. 1985).

Opinion

482 N.E.2d 306 (1985)

In the matter of M.R.D., a Child Alleged to Be a Delinquent Child, State of Indiana, Petitioner-Appellant,
v.
M.R.D., Respondent-Appellee.

No. 2-485A105[1].

Court of Appeals of Indiana, First District.

August 29, 1985.
Rehearing Denied October 7, 1985.

*307 Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for petitioner-appellant.

S. Daniel Weldy, III, Gallivan, Hamilton, Hamilton, Seese & Patterson, Bluffton, for respondent-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

The State appeals from the judgment of the Wells Circuit Court granting M.D.'s Motion to Suppress. We reverse and remand.

FACTS

On July 27, 1984, an Affidavit for Search Warrant was filed in the Wells County Court. The affidavit stated, in relevant part, that:

"[Affiant] has good cause to believe that several individuals, under the age of twenty-one (21) years, are in possession or are consuming alcoholic beverages within the residence of David A. Willits, located at 3676E, 500S, Bluffton, Indiana.
"In support of said belief, your affiant states that on the 27th day of July, 1984, your affiant received a telephone call from a Mrs. Myers of Wells County, Indiana, indicating that her daughter had been invited to a party at the aforementioned residence in which alcoholic beverages were to be served to individuals under the age of twenty-one (21) years. Based upon this information, your affiant went to the Willits residence at approximately 9:00 p.m. and observed numerous vehicles in the driveway of the Willits residence and in the surrounding area. Your affiant's observations indicated to him that there was, indeed, a sizeable party going on at the Willits residence, which corroborates the information provided to him earlier by Mrs. Myers.
"Wherefore, based upon the above information, your affiant requests that a search warrant issue allowing him to enter the premises of David A. Willits, located at 3676E, 500S, and thereupon search for alcoholic beverages."

Record at 18. Based on the affidavit, the Wells County Court issued the following search warrant:

"You are authorized and ordered, in the name of the State of Indiana, with *308 the necessary and proper assistance to enter into or upon the residence located at 3676E, 500S, Bluffton, Indiana, and there diligently search for alcoholic beverages, controlled substances and individuals using said alcohol or controlled substances in an illegal manner. You ar[e] ordered to seize such property, or any part thereof, found on such search.
"Dated this 27th day of July, 1984, at the hour of 9:30 P.M.
/s/ Everett E. Goshorn Everett E. Goshorn, Judge"

Record at 19. Later that same evening, the warrant was executed. As a result of the ensuing search, a delinquency petition was filed in the Wells Circuit Court charging M.D. with possession of an alcoholic beverage while under the age of twenty-one.

On December 3, 1984, M.D. filed a Motion to Suppress. She asserted that the affidavit failed to establish probable cause rendering the search warrant invalid. The trial court subsequently granted M.D.'s motion and suppressed all evidence seized pursuant to the challenged warrant. Because the trial court's ruling effectively prevents further prosecution of the delinquency petition, the State perfected this appeal.

ISSUES

The State raises three issues for our consideration:

1. Whether M.D. lacks standing to challenge the constitutionality of the search.

2. Whether the affidavit, upon which issuance of the search warrant was based, sufficiently established the existence of probable cause.

3. Whether the "good faith" exception to the exclusionary rule applies in this case.

DISCUSSION AND DECISION

Issue One

The initial question in all cases implicating the Fourth Amendment is whether the aggrieved individual had any personal and legitimate expectation of privacy in the place searched. Johnson v. State (1985), Ind., 472 N.E.2d 892, 898; Burris v. State (1984), Ind., 465 N.E.2d 171, 182; Humes v. State (1981), Ind., 426 N.E.2d 379, 381. Clearly, the search M.D. challenges here was conducted at the residence of another. Consequently, she lacked standing to challenge the constitutionality of that search. Johnson, at 898; Burris, at 182; Smith v. State, (1984), Ind., 465 N.E.2d 1105, 1123; Hope v. State (1982), Ind., 438 N.E.2d 273; Humes, at 381.

The State has failed, however, to preserve any error in this regard. Its Motion to Correct Errors is devoid of any alleged error in the trial court's ruling on M.D.'s standing to challenge the search. Therefore, any error is deemed waived. Thacker v. State (1985), Ind. App., 477 N.E.2d 921, 924; Brunes v. State (1985), Ind. App., 475 N.E.2d 356, 358; Pirtle v. State (1983), Ind., 452 N.E.2d 968, 969.

Issue Two

The State next asserts that the trial court erred when it determined that the Affidavit for Search Warrant failed to establish probable cause. In the present case, the affidavit was based almost exclusively on hearsay. Consequently, there must be strict compliance with the statutory requirements.[2]Madden v. State (1975), 263 Ind. 223, 224, 328 N.E.2d 727, 728; Nash v. State (1982), Ind. App., 433 N.E.2d 807, 809; Mills v. State (1978), 177 Ind. App. 432, 434, 379 N.E.2d 1023, 1026.

At the time the search warrant challenged here was issued, the statute in effect *309 was Indiana Code section 35-33-5-2 (1982).[3] That provision stated in relevant part: "When based on hearsay, the affidavit shall contain 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." This was essentially a codification of the two-prong Aguilar/Spinelli analysis.[4]See Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. State of Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. We must determine then whether the affidavit contained sufficient information to satisfy both the veracity and basis of knowledge prongs of this analysis.

Clearly, the affidavit contains no information bearing directly either on the hearsay declarant's veracity or on her basis of knowledge. The affidavit identifies the informant only as "... a Mrs. Myers of Wells County, Indiana... ." It contains no information which would permit us to determine who "Mrs. Myers" is or what credibility she might have had. See Baker v. State

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Bluebook (online)
482 N.E.2d 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mrd-indctapp-1985.