MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 14 2016, 8:56 am
Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John L. Tompkins Gregory F. Zoeller The Law Office of John L. Tompkins Attorney General of Indiana Indianapolis, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert McDade, December 14, 2016
Appellant-Defendant, Court of Appeals Case No. 49A04-1606-MI-1414
v. Appeal from the Marion Superior Court State of Indiana, The Hon. Michael Keele, Judge The Hon. Kimberly Dean Mattingly, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49D07-1512- MI-42105
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 1 of 7 Case Summary [1] On May 25, 2016, the trial court signed an order transferring property to the
United States government. Appellant-Defendant Robert McDade appeals the
order transferring the property, contending that the boilerplate language in the
warrant application used to seize the property is insufficient to provide adequate
specific facts to support the issuance of the warrant. Concluding that the
warrant application was correctly and adequately completed, we affirm.
Facts and Procedural History [2] On July 3, 2015, Detective Brian Thorla and others from the Indianapolis
Metropolitan Police Department entered a shipping facility and visually
inspected a number of parcels. The detectives were looking for certain
indicators of suspicious packages, including “going to a source State, heavily
taped box, paid for by cash for overnight delivery, no signature, no phone
numbers, handwriting on the box.” Appellee’s Brief at 6. Detective Thorla
discovered a package that was addressed to a source state, California, and was
sealed then taped. Detective Thorla, a certified K9 handler, used a certified K9
to exam the suspicious parcel and several other similar ones. The K9 gave a
positive indication to the suspicious parcel consistent with the presence of a
controlled substance.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 2 of 7 [3] Later that day, Detective Thorla applied for and received a warrant to search
McDade’s parcel at the shipping company. On the warrant application,
Detective Thorla described the parcel as a “‘White FedEx Box’ with trafficking
number 8077 7767 2789… [that] was suspicious because it was to be shipped to
California, a state known to be a source state, and it was sealed then taped.”
Brief for Appellee at 7. Additionally, Detective Thorla averred that he had
probable cause to believe that the parcel contained controlled substances based
on the above description and the fact that his certified canine indicated that it
had the odor of a controlled substance.
[4] The search warrant authorized Detective Thorla to search the parcel described
in the application with the same trafficking number and the same
sender/addressee information as provided. After searching, Detective Thorla
and the other detectives found a total of $28,895 in the parcel, but nothing else.
[5] On December 22, 2015, the Appellee-Plaintiff, the State of Indiana (the
“State”), filed a complaint for forfeiture. The next day the State filed a notice
and motion to transfer seized property to the United States. On January 6,
2016, McDade filed his answer. On January, 14, 2016, McDade filed his
objection to notice and motion to transfer seized property to the United States.
[6] Following trial, which was conducted based on the filings, the trial court signed
the order transferring property to the United States. The order authorized the
State to transfer the seized $28,895 in U.S. currency to the appropriate federal
authority.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 3 of 7 Discussion and Decision [7] On appeal, McDade argues that the warrant application did not contain
adequate specific facts to support the issuance of a warrant to seize the parcel
because it used boilerplate language to describe the item to be seized.
Additionally, McDade argues that this Court should not assume that a neutral
and detached magistrate reviewed the warrant application because the
description of the item to be seized was not completed as required by the
warrant application form.
[8] McDade raises the following issues on appeal: (1) whether the warrant
application was sufficient and set out adequate specific facts to support the
issuance of a search warrant and (2) whether it can be presumed that a neutral
and detached magistrate reviewed the warrant application when a material
section of the application requiring the description of the item was not
completed correctly. The second issue McDade addresses in his appeal is a
reframing of the first issue, but still involves the potential problem of the
description of the item to be seized not being completed as required. We will
address the two issues as one and state it as whether the warrant application
had adequate specific facts to support the issuance of a search warrant.
[9] In reviewing the issuance of a search warrant, “the reviewing court is to
determine whether the issuing magistrate had a substantial basis for concluding
that probable cause existed.” Johnson v. State, 32 N.E.3d 1173, 1177 (Ind. Ct.
App. 2015) (quoting Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App. 2010),
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 4 of 7 trans. denied), trans. denied. The standard of review for this Court is de novo, but
we will give “significant deference to the issuing magistrate’s determination and
focus on whether reasonable inferences drawn from the totality of the evidence
support the finding of probable cause.” Id. The issuing magistrate’s task in
deciding whether to issue a search warrant is to simply “make a practical,
common-sense decision whether … a fair probability exists that evidence of a
crime will be found in a particular place.” Id. at 758-59. Finally, “doubtful
cases should be resolved in favor of upholding the warrant.” Id. (quoting State
v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013)).
[10] Indiana Code section 35-33-5-2 provides, in relevant part, as follows:
(a) … no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for ... (2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) the things sought are concealed there … (3) setting forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause.
[11] McDade argues that the warrant application submitted by Detective Thorla
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 14 2016, 8:56 am
Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John L. Tompkins Gregory F. Zoeller The Law Office of John L. Tompkins Attorney General of Indiana Indianapolis, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert McDade, December 14, 2016
Appellant-Defendant, Court of Appeals Case No. 49A04-1606-MI-1414
v. Appeal from the Marion Superior Court State of Indiana, The Hon. Michael Keele, Judge The Hon. Kimberly Dean Mattingly, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49D07-1512- MI-42105
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 1 of 7 Case Summary [1] On May 25, 2016, the trial court signed an order transferring property to the
United States government. Appellant-Defendant Robert McDade appeals the
order transferring the property, contending that the boilerplate language in the
warrant application used to seize the property is insufficient to provide adequate
specific facts to support the issuance of the warrant. Concluding that the
warrant application was correctly and adequately completed, we affirm.
Facts and Procedural History [2] On July 3, 2015, Detective Brian Thorla and others from the Indianapolis
Metropolitan Police Department entered a shipping facility and visually
inspected a number of parcels. The detectives were looking for certain
indicators of suspicious packages, including “going to a source State, heavily
taped box, paid for by cash for overnight delivery, no signature, no phone
numbers, handwriting on the box.” Appellee’s Brief at 6. Detective Thorla
discovered a package that was addressed to a source state, California, and was
sealed then taped. Detective Thorla, a certified K9 handler, used a certified K9
to exam the suspicious parcel and several other similar ones. The K9 gave a
positive indication to the suspicious parcel consistent with the presence of a
controlled substance.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 2 of 7 [3] Later that day, Detective Thorla applied for and received a warrant to search
McDade’s parcel at the shipping company. On the warrant application,
Detective Thorla described the parcel as a “‘White FedEx Box’ with trafficking
number 8077 7767 2789… [that] was suspicious because it was to be shipped to
California, a state known to be a source state, and it was sealed then taped.”
Brief for Appellee at 7. Additionally, Detective Thorla averred that he had
probable cause to believe that the parcel contained controlled substances based
on the above description and the fact that his certified canine indicated that it
had the odor of a controlled substance.
[4] The search warrant authorized Detective Thorla to search the parcel described
in the application with the same trafficking number and the same
sender/addressee information as provided. After searching, Detective Thorla
and the other detectives found a total of $28,895 in the parcel, but nothing else.
[5] On December 22, 2015, the Appellee-Plaintiff, the State of Indiana (the
“State”), filed a complaint for forfeiture. The next day the State filed a notice
and motion to transfer seized property to the United States. On January 6,
2016, McDade filed his answer. On January, 14, 2016, McDade filed his
objection to notice and motion to transfer seized property to the United States.
[6] Following trial, which was conducted based on the filings, the trial court signed
the order transferring property to the United States. The order authorized the
State to transfer the seized $28,895 in U.S. currency to the appropriate federal
authority.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 3 of 7 Discussion and Decision [7] On appeal, McDade argues that the warrant application did not contain
adequate specific facts to support the issuance of a warrant to seize the parcel
because it used boilerplate language to describe the item to be seized.
Additionally, McDade argues that this Court should not assume that a neutral
and detached magistrate reviewed the warrant application because the
description of the item to be seized was not completed as required by the
warrant application form.
[8] McDade raises the following issues on appeal: (1) whether the warrant
application was sufficient and set out adequate specific facts to support the
issuance of a search warrant and (2) whether it can be presumed that a neutral
and detached magistrate reviewed the warrant application when a material
section of the application requiring the description of the item was not
completed correctly. The second issue McDade addresses in his appeal is a
reframing of the first issue, but still involves the potential problem of the
description of the item to be seized not being completed as required. We will
address the two issues as one and state it as whether the warrant application
had adequate specific facts to support the issuance of a search warrant.
[9] In reviewing the issuance of a search warrant, “the reviewing court is to
determine whether the issuing magistrate had a substantial basis for concluding
that probable cause existed.” Johnson v. State, 32 N.E.3d 1173, 1177 (Ind. Ct.
App. 2015) (quoting Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App. 2010),
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 4 of 7 trans. denied), trans. denied. The standard of review for this Court is de novo, but
we will give “significant deference to the issuing magistrate’s determination and
focus on whether reasonable inferences drawn from the totality of the evidence
support the finding of probable cause.” Id. The issuing magistrate’s task in
deciding whether to issue a search warrant is to simply “make a practical,
common-sense decision whether … a fair probability exists that evidence of a
crime will be found in a particular place.” Id. at 758-59. Finally, “doubtful
cases should be resolved in favor of upholding the warrant.” Id. (quoting State
v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013)).
[10] Indiana Code section 35-33-5-2 provides, in relevant part, as follows:
(a) … no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for ... (2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) the things sought are concealed there … (3) setting forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause.
[11] McDade argues that the warrant application submitted by Detective Thorla
used boilerplate language that failed to adequately describe the item to be
searched and seized. The warrant application form has several auto-fill
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 5 of 7 prompts indicated by the term “PARCEL(S)” that Detective Thorla did not
change to represent the specific details of the package in question. In one
instance, Detective Thorla mentions the specific package, or the
“PARCEL(S),” along with three other similar packages without designating
specifically what package or packages out of the four packages would be
searched. However, Detective Thorla does describe adequately the specific
package at the top of the second page of the application as indicated above and
this description was used when the search warrant was issued.
[12] There is no reason to believe that the issuing magistrate lacked a “substantial
basis for concluding that probable cause existed” based on the warrant
application. Johnson v. State, 32 N.E.3d 1173, 1177 (Ind. Ct. App. 2015)
(quoting Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App. 2010), trans. denied),
trans. denied. The package was described in detail and the application provided
a number of reasons that Detective Thorla might have probable cause to believe
that the package contained something illegal. It is a reasonable inference that
the term “PARCEL(S)” in the warrant application referred to the package
described in detail on the second page of the application. It is not a reasonable
inference that the term “PARCEL(S)” referred to some random package or
packages that the detectives used as controls to ensure the accuracy of the
certified K9’s positive indication of the package given that a detailed description
had already been given.
[13] In Rios v. State, we rejected a similar argument with similar facts. 762 N.E.2d
153 (Ind. Ct. App. 2002). The officers in Rios were examining packages in a
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 6 of 7 shipping facility where they noticed a suspicious package similar to the one in
question here. Id. at 156. One of the officers then placed the suspicious package
next to a few others and a certified K9 alerted to the suspicious package. In the
warrant application, the officer left much of the boilerplate language in the
application alongside “facts particular to Rios’ package inserted in bold by a
word processing program.” Id. at 160. We found the affidavit sufficient
because it had facts “specific to Rios’ package as it describes the package and
who found it … in detail, states that the dog sniffed the package and alerted to
it.” Id.
[14] Based on the ruling in Rios and the facts of the warrant application submitted by
Detective Thorla, it is clear that the description Detective Thorla gave in the
warrant application is sufficient to meet the requirements of Indiana Code
section 35-33-5-2 and provides adequate facts to support the issuance of the
warrant.
[15] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-MI-1414 | December 14, 2016 Page 7 of 7