Omid Petrelli v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 11, 2017
• Docket: 49A02-1704-MI-741
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 11 2017, 5:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Todd Ess Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Omid Petrelli, October 11, 2017 Appellant, Court of Appeals Case No. 49A02-1704-MI-741 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee. Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1606-MI-23088

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 1 of 6 Case Summary [1] After obtaining a search warrant, law enforcement opened a suspicious package

addressed to Omid Petrelli (“Petrelli”) that contained $19,740 in cash. The

State moved to transfer the money to the United States, and the trial court so

ordered. Petrelli now challenges the transfer order, arguing that the money was

unlawfully seized because of a defect in the underlying search warrant affidavit.

[2] We affirm.

Facts and Procedural History [3] On June 14, 2016, Detective Gary Hadden (“Detective Hadden”) and his

canine partner Leona examined several suspicious packages at an Indianapolis

shipping company. After sniffing a parcel addressed to Petrelli, Leona

indicated that she detected the odor of a controlled substance. Detective

Hadden then applied for a search warrant, which was issued, and a subsequent

search of the package revealed $19,740 in United States currency. The money

was confiscated as proceeds of narcotics trafficking and money laundering.

[4] Pursuant to Indiana Code Section 35-33-5-5(j), the State filed a motion seeking

to transfer the money to the United States. Petrelli opposed the motion,

arguing that the search was unlawful because the warrant was predicated upon

a deficient affidavit. Following a hearing, the trial court granted the motion.

[5] Petrelli now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 2 of 6 Discussion and Decision [6] The propriety of a transfer order under Indiana Code Section 35-33-5-5(j) is

dependent on the lawfulness of the search that led to the state obtaining the

property in question. Ind. Code § 34-24-1-2(a) (providing that “[p]roperty may

be seized . . . only if . . . the seizure is incident to a lawful . . . search”); Membres

v. State, 889 N.E.2d 265, 269 (Ind. 2008) (applying Indiana Code Section 34-24-

1-2(a) and concluding that “if the search or seizure . . . was unlawful, the

turnover must be reversed”). The lawfulness of a search is a question of law,

which we review de novo. Membres, 889 N.E.2d at 268.

[7] Petrelli argues that the search was unlawful because the search warrant was not

supported by a sufficient oath or affirmation. Both the Fourth Amendment to

the United States Constitution and Article 1, Section 11 of the Indiana

Constitution generally proscribe warrantless searches and require that a search

warrant issue only upon probable cause, supported by oath or affirmation. As

for the adequacy of the oath or affirmation, the Fourth Amendment and Article

1, Section 11 have similar concerns—namely, that the oath or affirmation

impress upon the swearing individual an appropriate sense of obligation to tell

the truth. See Wallace v. State, 199 Ind. 317, 157 N.E. 657, 660 (1927) (observing

that an oath or affirmation “must bear the countenance of truth, which is so

infallible that either an action for damages or a criminal charge of perjury may

be legally predicated thereon, if such statement is untrue”); State v. Holladay, 120

S.C. 154, 112 S.E. 827 (1922) (concluding that the oath requirement was

satisfied when the affiant stated to a magistrate judge, “I want to make this

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 3 of 6 affidavit before you,” when the affiant knew that he was making an oath); see

also United States v. Dunnigan, 507 U.S. 87, 97 (1993) (observing, in approving of

perjury statutes, that “[a]ll testimony . . . has greater value because of the

witness’[s] oath and the obligations or penalties attendant to it.”).

[8] Independent of these constitutional provisions, Indiana Code Section 35-33-5-1

provides that a warrant is properly issued “only . . . [when] supported by oath

or affirmation,” and a related code section states in pertinent part:

An affidavit for search substantially in the following form shall be treated as sufficient:

. . . A B swears (or affirms, as the case may be) that he believes and has good cause to believe (here set forth the facts and information constituting the probable cause) that (here describe the things to be searched for and the offense in relation thereto) are concealed in or about the (here describe the house or place) of C D, situated in the county of , in said state.

In accordance with Indiana Trial Rule 11, I affirm under the penalties for perjury that the foregoing representations are true.

(Signed) Affiant Date

I.C. § 35-33-5-2(c). Indiana Trial Rule 11(B) provides that an oath is sufficient

if the subscriber simply affirms the truth of the matter to be verified by an affirmation or representation in substantially the following language:

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 4 of 6 “I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.

(Signed) ”

[9] Here, at the bottom of the search warrant application, just above Detective

Hadden’s electronic signature, the application states as follows: “I swear or

affirm under the penalties for perjury that the foregoing is true.” Exh. 1.

Petrelli does not dispute that the application states as much, but argues that the

oath is rendered ineffective because of a statement made elsewhere in the

document. That is, the following language appears on the first page of the

application: “I swear (affirm), under penalty of perjury as specified by IC 35-44-2-

1, that the foregoing and following representations in this document are true.”

Id. (emphasis added). Petrelli points out that the cited code section was

repealed in 2012 and its content, which criminalizes the act of perjury, now

appears in Indiana Code Section 35-44.1-2-1. Thus, according to Petrelli,

“Detective Hadden’s oath contains an obvious defect that cannot be undone.”

Appellant’s Br. at 13.

[10] We disagree. Detective Hadden made an oath—in two places—under the

penalty for perjury, and the reference to the outdated code section amounts to

mere surplusage. See Frink v. State, 568 N.E.2d 535, 536 (Ind. 1991) (refusing to

reverse for technical error where “the purpose of the oath requirement was

fulfilled”). We conclude that the probable cause affidavit satisfied the oath

requirements set forth in the United States Constitution, Indiana Constitution,

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 5 of 6 and Indiana Code. Moreover, as Petrelli has alleged no other defect with the

search warrant or ensuing search, we hereby affirm the transfer order.

Conclusion [11] The probable cause affidavit contained an adequate oath to support the issuance

of the search warrant; thus, the search that produced the $19,740 was lawful

and the confiscated money was properly subject to the transfer order.

[12] Affirmed.

Baker, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-MI-741 | October 11, 2017 Page 6 of 6