Troy Bell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2018
• Docket: 75A03-1710-CR-2554
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 12 2018, 10:04 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Blair Todd Curtis T. Hill, Jr. Law Office of Blair Todd Attorney General of Indiana Winamac, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Troy Bell, June 12, 2018 Appellant-Defendant, Court of Appeals Case No. 75A03-1710-CR-2554 v. Appeal from the Starke Circuit Court State of Indiana, The Honorable Kim Hall, Judge Appellee-Plaintiff. Trial Court Cause No. 75C01-1604-F2-4

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 1 of 14 Case Summary and Issue [1] Following a jury trial, Troy Bell was convicted of dealing in methamphetamine,

a Level 2 felony; maintaining a common nuisance, a Level 6 felony; and

possession of paraphernalia, a Class C Misdemeanor. Bell also pleaded guilty

to possession of methamphetamine, a Level 3 felony, and the trial court

sentenced Bell to an aggregate term of twenty-five years in the Indiana

Department of Correction. Bell now appeals his convictions, raising only one

issue for our review which we restate as whether the trial court abused its

discretion in admitting evidence. Concluding the trial court did not abuse its

discretion, we affirm.

Facts and Procedural History [2] At approximately 9:00 a.m. on April 14, 2016, Detective Robert Olejniczak of

the Starke County Sheriff’s Office, in the company of other officers, executed a

search warrant on the residence Bell shared with his wife, Natasha. Among

other evidence, the search warrant produced:

dime-sized bags with white residue, a gold grinder with a green leafy substance in it, glass smoking devices, a television screen with live video surveillance of the outside of the residence, a scale with white residue on it, an unmarked pill bottle with a green leafy substance in it, and two plastic bags containing 223.35 grams of crystal methamphetamine. The total street value of the methamphetamine found in the two bags was approximately $23,000 to $24,000.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 2 of 14 Brief of Appellee at 9-10.

[3] Thereafter, Bell was charged with dealing in methamphetamine, a Level 2

felony; possession of methamphetamine, a Level 3 felony; maintaining a

common nuisance, a Level 6 felony, two counts of possession of a controlled

substance, both Class A misdemeanors; possession of marijuana, a Class B

misdemeanor; and possession of paraphernalia, a Class C misdemeanor.

[4] On September 21, 2016, Bell filed a motion to quash the search warrant and

suppress evidence, alleging the search warrant lacked probable cause under

Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment of

the United States Constitution. The affidavit of probable cause underlying the

search warrant provided:

Robert Olejniczak swears and affirms, under the penalties of perjury, that he believes and has good cause to believe that the following are facts and information relevant to the determination of the existence of probable cause for the issuance of a search warrant.

1. I am the Chief Detective with the Starke County Sheriff’s Office.

2. I have received information from two different sources since September 2015 that Troy and Natasha Bell have been selling illegal drugs out of the residence located [in] Starke County, Indiana.

3. The information I received states that Troy goes to South Bend to pick up Heroin and also states that at

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 3 of 14 their residence it smells like they are cooking methamphetamine. It states that there is traffic in and out of the residence once Troy gets back.

4. My source stated, on one occasion Troy and Natasha were fighting outside and yelled “I gave you $500 to buy drugs, where are my drugs”.

5. It is believed that Troy is involved with the Aryan Brotherhood.

6. I have personally seen subjects frequenting the residence but have not been able to stop any vehicles or subjects leaving.

7. On February 4, 2016, Starke County Probation drug tested Natasha Long and her results were positive for Methamphetamine.

8. On April 4, 2016, I conducted a trash pull from the residence. In the trash was several dime sized plastic bag [sic] with residue, glass smoking devices with residue, empty scale box, burnt foil, prescription pill bottles with Troy Bell’s name, mail with Natasha Long [sic] name on it, 223 bullet, 22 bullet and a spent 45 round.

9. The pipes and a small plastic bag with residue were tested. It [sic] field tested positive for methamphetamine.

10. On April 6, 2016, I was advised by a neighbor that there has been traffic at the residence during the

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 4 of 14 night time hours. They stated that people are staying for only a few minutes and leaving.

11. Due to my training and experience this is known to be associated with a subject selling illegal narcotics.

12. On April 6, 2016, I also was contacted by Indiana State Police Officer Bikowski with the Bremen Post and he stated that he received information from Brian Collins that he has known Bell since he was a kid and he is a major drug dealer.

13. On April 7, 2016, I was advised that Natasha was on Probation and is possibly on Home Detention. I called Starke County Community Corrections and they advised me that she was on pretrial home detention.

14. On April 11, 2016, I conducted a second trash pull from the residence. In the trash was mail belonging to Troy Bell, two glass smoking pipes with residue, a light bulb with one end removed with white residue inside it, foil and a pen tube with white residue.

15. I then took the evidence to the jail and conducted field tests on the items. The items tested positive for Methamphetamine.

16. On April 13, 2016, I was contacted by Hamlet Officer Kholes. He stated that he received information that Natasha was packaging methamphetamine during the day and going to a hotel at night to manufacture it.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 5 of 14 17. I believe that the statements of the Hamlet Officer Kholes, Starks County Probation, Indiana State Trooper Bikowski, and Brian Collins are truthful and creditable.

18. Under the totality of the circumstances I believe that probable cause exists to search the residence, . . ., burn pits, trash and curtilage located [in] Starke County, Indiana.

19. I respectfully request a search warrant be issued ....

Appellant’s Appendix, Volume II at 30-31. After a hearing on October 10,

2016, the trial court denied Bell’s motion.

[5] On July 25, 2017, Bell pleaded guilty to possession of methamphetamine, a

Level 3 felony, in exchange for the State dismissing two counts of possession of

a controlled substance, both Class A misdemeanors. During a jury trial on the

remaining charges conducted on July 26-27, Bell objected to the introduction of

the evidence found in the residence during the execution of the search warrant.

Following the State’s presentation of evidence, the trial court granted Bell’s

motion for judgment on the evidence regarding possession of marijuana, a

Class B misdemeanor, but denied the same motion for maintaining a common

nuisance, a Level 6 felony. At the conclusion of the trial, the jury found Bell

guilty of dealing in methamphetamine, a Level 2 felony; maintaining a

common nuisance, a Level 6 felony; and possession of paraphernalia, a Class C

misdemeanor. The trial court later imposed an aggregate sentence of twenty-

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 6 of 14 five years to be executed in the Indiana Department of Correction. Bell now

appeals.

Discussion and Decision I. Standard of Review [6] Generally, we review a trial court’s ruling on the admissibility of evidence for

an abuse of discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005).

Where, as here, a search warrant was sought and granted, the search warrant is

presumptively valid and the defendant bears the burden of overcoming such

presumption. Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003). Our supreme

court explained in State v. Spillers that:

In deciding whether to issue a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, common-sense 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.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The duty of the reviewing court is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. Id. at 238-39. A substantial basis requires the reviewing court, with significant deference to the magistrate’s determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. A reviewing court for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Although we review de novo the trial court’s substantial basis determination, we nonetheless afford significant deference to the magistrate’s determination as we focus on whether reasonable

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 7 of 14 inferences drawn from the totality of the evidence support that determination.

847 N.E.2d 949, 953 (Ind. 2006) (some citations and quotations omitted).

II. Search Warrant [7] On appeal, Bell argues that the trial court erroneously admitted evidence

obtained from the execution of a search warrant lacking probable cause.1

[8] The Fourth Amendment to the United States Constitution provides, “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” Article 1, Section 11 of the Indiana Constitution contains nearly

identical language as the Fourth Amendment but “interpretations and

applications vary between them.” Holder v. State, 847 N.E.2d 930, 935 (Ind.

2006).

[9] Trash searches are one of the ways that Article 1, Section 11 has been

interpreted to provide broader protections than the Fourth Amendment. In the

1 By pleading guilty, Bell has waived any challenge to his conviction of possession of methamphetamine, a Level 3 felony. It is well-established that a defendant who pleads guilty forfeits a “plethora of substantive claims and procedural rights,” and a defendant cannot go on to challenge pre-trial orders on appeal. Alvey v. State, 911 N.E.2d 1248, 1250-51 (Ind. 2009) (holding a defendant cannot plead guilty and later challenge the trial court’s denial of a pre-trial motion to suppress).

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 8 of 14 oft-cited case of Litchfield v. State, 824 N.E.2d 356, 363 (Ind. 2005), our supreme

court held that for a search of a suspect’s trash to be reasonable under Article 1,

Section 11, the search must be based on reasonable suspicion, despite no such

Fourth Amendment prohibition. Herein lies the basis of Bell’s appeal: Bell

alleges that the search warrant affidavit “contained a two tiered basis for

attempting to establish probable cause,” in which the first portion of the

affidavit contained “multiple statements of hearsay” used to demonstrate

reasonable suspicion to “justify two trash pulls from Bell’s residence.” Brief of

Defendant-Appellant at 8-9. Because police failed to corroborate the hearsay

information, Bell argues, police lacked the requisite reasonable suspicion to

conduct the trash searches at his residence, and therefore the “trash pull

evidence” should not have been considered by the trial court in its

determination of probable cause. Id. at 9.

[10] While much of our jurisprudence regarding hearsay information in search

warrant affidavits considers whether the information constituted probable

cause, see, e.g., Scott v. State, 883 N.E.2d 147, 154 (Ind. Ct. App. 2008), here,

Bell alleges that the hearsay information was insufficient to constitute

reasonable suspicion—a lower standard. See Clark v. State, 994 N.E.2d 252, 261

(Ind. 2013). In turn, the State admits the hearsay information was derived from

“anonymous hearsay sources,” but argues that the reliability of the information

was established through independent police investigation. Br. of Appellee at

18. We agree with the State.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 9 of 14 [11] Probable cause to search a premises “is established when a sufficient basis of

fact exists to permit a reasonably prudent person to believe that a search of

those premises will uncover evidence of a crime.” Helsley v. State, 809 N.E.2d

292, 295 (Ind. 2004). In Alabama v. White, the United States Supreme Court

explained:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, [407 U.S. 143 (1972),] demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. [Id. at 147]. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

496 U.S. 325, 330 (1990) (some citations omitted).

[12] Here, the search warrant affidavit stated that police had “received information

from two different sources since September 2015 that [Bell] and Natasha Bell

have been selling illegal drugs out of the residence . . .” Appellant’s App., Vol.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 10 of 14 II at 30. The “sources” explained that Bell would frequent South Bend in order

to retrieve heroin, traffic in and out of the residence would increase upon his

return, the residence “smells like they are cooking methamphetamine,” and that

on one occasion, Bell and Natasha were heard outside fighting when one yelled

“I gave you $500 to buy drugs, where are my drugs[?]” Id.

[13] As the supreme court explained in Alabama v. White, the “totality of the

circumstances—the whole picture,” must be taken into account when

evaluating reasonable suspicion. 496 U.S. at 330. Although the sources may

have been known to Detective Olejniczak, he makes no such allegation in the

search warrant affidavit. Therefore, we find it appropriate, as the State admits

on appeal, State’s Br. of Appellee at 18, to view the hearsay information as

originating from anonymous sources and, as is well-known in criminal law, “an

anonymous tip alone is not likely to constitute” reasonable suspicion. Lampkins

v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Alabama, 496 U.S. at 329-30).

However, we note that because there was more than one source and both

sources reported having observed the criminal activity firsthand, the tips are

entitled to “greater weight than might otherwise be the case.” McGrath v. State,

95 N.E.3d 522, 528 (Ind. 2018).

[14] Nevertheless, in Sellmer v. State, our supreme court explained that in order for

an anonymous tip to constitute reasonable suspicion, at least two conditions

must be met:

First, significant aspects of the tip must be corroborated by the police. Such corroboration requires that an anonymous tip give Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 11 of 14 the police something more than details regarding facts easily obtainable by the general public to verify its credibility. Second, an anonymous tip, if it is to be considered reliable enough to constitute reasonable suspicion to conduct an investigatory stop, must also demonstrate an intimate familiarity with the suspect’s affairs and be able to predict future behavior.

842 N.E.2d 358, 361 (Ind. 2006) (citation and quotations omitted).

[15] Here, the anonymous sources displayed familiarity with Bell, explained that his

residence “smell[ed] like they [were] cooking methamphetamine,” and

described his behavior—specifying that Bell retrieved heroin from South Bend

and that traffic in and out of his residence increased upon his return.

Appellant’s App., Vol. II at 30. Thereafter, Detective Olejniczak undertook

investigative steps to corroborate the information, first contacting Natasha’s

probation officer, learning that Natasha had tested positive for

methamphetamine, and then conducting surveillance and observing “subjects

frequenting the residence.” Id.

[16] In turn, Bell alleges that the “facts provided by [Detective Olejniczak] in an

attempt to corroborate the anonymous tips suffered from a lack of timeliness.”

Br. of Defendant-Appellant at 11. Although “[i]t is a fundamental principle of

search and seizure law that the information given to the magistrate or judge in

the application for a search warrant must be timely,” Breitweiser v. State, 704

N.E.2d 496, 499 (Ind. Ct. App. 1999), Bell’s argument misunderstands the

relevant standard. Br. of Defendant-Appellant at 10. Bell cites only one case,

Ashley v. State, 241 N.E.2d. 264, 368 (Ind. 1968), which involved probable

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 12 of 14 cause, and alleges that stale information, such as Natasha’s two-month old

positive methamphetamine test, was insufficient to constitute probable cause.

However, as is the premise of Bell’s appeal, the hearsay information and its

corroboration need only show reasonable suspicion for the subsequent trash

searches, not probable cause for the issuance of the search warrant.

Accordingly, we view the evidence under this lesser standard, and “staleness of

the information must be judged by the facts and circumstances of each case.”

Breitweiser, 704 N.E.2d at 499. On the facts presented here, we do not believe

the information obtained by Detective Olejniczak was too “stale” to provide

corroboration of the underlying hearsay information. See Scott v. State, 883

N.E.2d 147, 155 (Ind. Ct. App. 2008) (noting that a detective smelling ether at a

residence within the proceeding two-month period corroborated details of

hearsay information).

[17] Therefore, mindful that we are to view the facts under the totality of the

circumstances, we conclude that Detective Olejniczak possessed reasonable

suspicion to conduct searches of Bell’s trash. See Love v. State, 842 N.E.2d 420,

425 (Ind. Ct. App. 2006) (concluding anonymous tip with independent indicia

of reliability and corroboration constituted reasonable suspicion for the purpose

of a trash search). As such, and in the absence of argument that the probable

cause affidavit lacked probable cause when including the fruits thereof, Bell has

failed to overcome the presumption the search warrant is valid.

Conclusion Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 13 of 14 [18] Concluding the trial court did not abuse its discretion in admitting evidence

obtained as the result of the search warrant, we affirm.

[19] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 75A03-1710-CR-2554 | June 12, 2018 Page 14 of 14