Query v. State

725 N.E.2d 129, 2000 Ind. App. LEXIS 316, 2000 WL 276970
CourtIndiana Court of Appeals
DecidedMarch 15, 2000
DocketNo. 49A02-9910-CR-733
StatusPublished
Cited by2 cases

This text of 725 N.E.2d 129 (Query v. State) 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
Query v. State, 725 N.E.2d 129, 2000 Ind. App. LEXIS 316, 2000 WL 276970 (Ind. Ct. App. 2000).

Opinions

OPINION

SULLIVAN, Judge

Appellant, Louis David Query (Query), by this interlocutory appeal, challenges the trial court’s denial of his motion to suppress.

We reverse.

The facts reflect that on October 31, 1998, a confidential informant working with Detective Matthew Fillenwarth (Fil-lenwarth) of the Greenwood Police Department arranged to purchase methamphetamine from Query at his residence, 4140 El Lago Boulevard, Apartment A in Indianapolis. Detective Fillenwarth provided the informant with money and a wireless transmitter. The informant, while under observation, exchanged the money for a substance which the informant thought, based upon his experience as a user, was methamphetamine.

Detective Fillenwarth conducted two field tests on the substance. The substance tested negative for methamphetamine. He tested the substance again, and the substance tested positive for methamphetamine. Detective Fillenwarth believed that the first test’s results were affected by the use of a cutting agent. Detective Fillenwarth, apparently, sent the substance for testing by the forensic laboratory.

On November 2, 1998, Detective Fillen-warth prepared an affidavit for probable cause and submitted it to the Judge of the Johnson Circuit Court in order to obtain a search warrant for Query’s residence in Indianapolis.1 The affidavit described the events which occurred with the informant, but did not disclose the informant’s identity. The court issued the search warrant on that day.

On November 3, 1998, Detective Fillen-warth learned that the laboratory results [131]*131revealed that the substance did not contain methamphetamine. Detective Fillenwarth spoke with Brad Cooper (Cooper), a Deputy Prosecutor with the Johnson County Prosecutor’s Office concerning the laboratory results. Cooper advised Detective Fillenwarth that the laboratory results did not change the basis for probable cause. Even if Query did not sell methamphetamine to the confidential informant, he sold a substance represented as a drug. Under I.C. 35-48-4-4.5 (Burns Code Ed. Repl.1998), a person delivering a substance other than a controlled substance, which is represented as a controlled substance commits a class D felony. Neither Cooper nor Detective Fillenwarth informed the issuing judge of the laboratory results.

The search warrant was executed on November 4, 1998. Upon a search of Query’s residence, 81 grams of “uncut” cocaine and drug paraphernalia were found. Query was charged with Dealing in Cocaine,2 a Class A felony and Possession of Cocaine,3 a Class C felony. On January 26, 1999, Query moved to suppress the cocaine. On July 16, 1999, after a hearing, the trial court denied the motion to suppress.

The trial court, in its order, determined that Detective Fillenwarth was required to inform the issuing judge that some of the information in the probable cause affidavit was incorrect. Nevertheless, the trial court considered the effect of the laboratory report upon the finding of probable cause, and concluded that the warrant would have been valid even if the laboratory results were included in the affidavit because there was probable cause to believe Query was dealing in a look-a-like substance. On July 80, 1999, Query petitioned for certification of the trial court’s order for interlocutory appeal pursuant to Ind.App. Rule 4(B)(6), which we granted.

Upon appeal, Query contends that Detective Fillenwarth’s affidavit did not establish the probable cause required to issue a search warrant. Query maintains that the magistrate did not have a substantial basis to determine whether probable cause existed because Detective Fillen-warth failed to inform the magistrate of the negative laboratory results which were discovered after the search warrant was issued, but before its execution. We agree.

“In deciding whether to issue a search warrant, ‘[t]he 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.’ ” Jaggers v. State (1997) Ind., 687 N.E.2d 180, 181 (quoting Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527). The reviewing court,4 must then determine whether the magistrate had a substantial basis for reasoning that probable cause existed. Jaggers, supra at 181. This requires the reviewing court to decide whether reasonable inferences drawn from the totality of the evidence support the probable cause determination. Id. at 182. “In this review, we consider only the evidence presented to the issuing magistrate and not post hoc justifications for the search.” Id.

In the instant case, the judge was not given all of the relevant information to make a probable cause determination. Detective Fillenwarth failed to inform the judge of the circumstances surrounding the testing of the substance obtained from Query’s residence. The U.S. Supreme Court’s holding, in Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, prevents police officers from deliberately or recklessly presenting false [132]*132material information in a warrant application. Further, police officers may not deliberately or recklessly omit material information from the application. See U.S. v. Pace (1990) 7th Cir., 898 F.2d 1218, 1232. Detective Fillenwarth knowingly omitted the negative laboratory results from the judge’s consideration when he failed to update his affidavit which included a positive field test. The result was that the judge had less than full information to assess whether a search warrant should be issued.

When relevant information is omitted from an affidavit providing the probable cause for a search, we must analyze the information’s likely effect upon the determination of probable cause as if the information had been included. See Pace, supra, 898 F.2d at 1232. If the negative laboratory results, the relevancy of which is undisputed, had been included in Detective Fillenwarth’s affidavit, then a finding of probable cause based upon that affidavit would not have been proper.

Here, the trial court held that even with the inclusion of the laboratory results, the judge had probable cause to issue the search warrant because Query’s suspected conduct could constitute dealing in a look-a-like substance. The trial court erroneously speculated on what the issuing judge would have decided had he known all of the relevant information. Even if the judge had reasoned that Query’s conduct might be consistent with dealing in a look-a-like substance, at minimum, he would have been required to deny the issuance of the warrant based upon Detective Fillenwarth’s affidavit. The affidavit submitted, however, provided no support to suspect Query was dealing in a look-a-like substance. In fact, Detective Fillenwarth.asserted in the affidavit that he suspected the substance seized from Query’s residence was methamphetamine.

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Related

Query v. State
745 N.E.2d 769 (Indiana Supreme Court, 2001)

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Bluebook (online)
725 N.E.2d 129, 2000 Ind. App. LEXIS 316, 2000 WL 276970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/query-v-state-indctapp-2000.