Dunkle v. State

¶1dissenting.

¶2I respectfully dissent from the majority opinion insofar as it holds the affidavit for a search warrant in this case to be sufficient.

¶3The issuance of a search warrant must be done in strict compliance with the constitutional and statutory law pertaining thereto. Layman v. State, (1980) Ind.App., 407 N.E.2d 259, trans. denied; Rohlfing v. State, (1949) 227 Ind. 619, 88 N.E.2d 148. Article I, § 11 of the Indiana Constitution, which is based upon the fourth amendment of the Constitution of the United States,1 reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

¶4*189Relevant Indiana statutory law pertaining to issuance of search warrants provides:

“(a) Except as provided in subsection (c) of this section, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declar-ants of the hearsay and establishing that there is a factual basis for the information furnished.

“(c) In lieu of an affidavit or in addition thereto, a search or arrest warrant may be issued upon sworn testimony of the same facts required for affidavits in a nonadversary hearing before a judge; the proceeding shall be recorded or transcribed by a court reporter or recording device.”

¶5Ind.Code 35-1-6-2.

¶6As we said in Layman“[t]he affidavit is to apprise the magistrate ‘of the underlying facts and circumstances tending to show that there is probable cause.’ ” 407 N.E.2d at 262. The determination of probable cause must be made by a detached, impartial magistrate rather than by the police. Layman v. State, supra. Our statute, IC 35-1-6-2, allows the use of credible hearsay in affidavits for search warrants, but requires the affidavit to “contain reliable information establishing the credibility of the source ... of the hearsay and establishing that there is a factual basis for the information furnished.” In Madden v. State, (1975) 263 Ind. 223, 328 N.E.2d 727, our supreme court held that the affidavit must contain facts establishing the credibility of the person who supplied the information and whether that person supplied the information from facts within his personal knowledge. Justice Prentice, writing in Madden, 328 N.E.2d at 729, stated: “The function of the affiant in this situation is primarily one of relaying factual information from the person who has personal knowledge of it to the person who is to make the ‘probable cause’ determination. The judgments are to be those of the issuing authority and not merely those of the seeker of the war-rant_”

¶7Thus, when the affidavit is based upon hearsay, it must state facts establishing the reliability of the declarant, which reliability must be established before a finding of probable cause can be made. Pawloski v. State, (1978) 269 Ind. 350, 380 N.E.2d 1280. Reliability can be established either by the informer’s past record of reliability or by extrinsic facts proving his information reliable. Pawloski v. State, supra. Various facts have been held to establish the credibility of the person supplying the information. Victims of the crime have generally been regarded as reliable informers. Pawloski v. State, supra; Mann v. State, (1979) Ind.App., 389 N.E.2d 352. Likewise, cooperative citizens who have witnessed a crime and wish to assist law enforcement have been regarded as reliable. Pawloski v. State, supra. In addition, persons making statements which are against their own penal interest have been considered reliable on the ground that persons are unlikely to make such a damaging admission unless true. United States v. Harris, (1971) 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117, cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979). But see Knaub v. State, (1979) Ind.App., 394 N.E.2d 201.

¶8With these criteria in mind, the affidavit for a search warrant here must be examined to determine if the statutory requirements are met. That affidavit provided:

*190“Comes now Drew Wright, Randolph County Deputy Sheriff, and being duly sworn upon his oath swears that he has good cause to believe and believes that on September 16, 1979, at approximately 10:45 p. m., Affiant was informed by William York who resides at Randolph County Road 1000 South, just east of Indian Trial [sic] Road Randolph County, Indiana, that he heard a truck with a loud muffler out at his barn. Upon investigation, Affiant proceeded to the barn of William York and found fresh blood at and around the pig pen. William York informed Affiant that he was missing at least one black and white mixed breed hog, of an estimated value of one hundred fifty dollars ($150.00), which was tagged on the left ear and had three or four rings in the nose. Later during his investigation, at about 12:10 a. m., Affiant was at the intersection of United States Highways 35 and 36 (approximately 4-5 miles from the York residence) and observed a brown pickup truck with a loud muffler. Affiant stopped said pickup truck and saw two recently slaughtered hogs laying in the open rear bed of the pickup truck. Affi-ant determined the driver of said truck was Nelson E. Dilk and a passenger, his wife, Linda S. Dilk, of Daleville, Indiana. Affiant observed two hogs in the truck, one a black and white mixed breed hog and an all white hog, and that the left ears of the two hogs in the truck had been partially cut off. The Dilks informed Affiant that they had got the hogs from Roy Dunkle who lived on Randolph County Road 400 West.

“Affiant then notified William York, who also told Affiant that another hog had been stolen; William York came to the scene and identified the black and white mixed breed hog, which was the pet of his wife, Betty York, he also identified the white hog.

“Betty York also informed Affiant that the black and white mixed breed hog was pregnant and should be full of piglets. “Affiant believes that at or about the residence and property of Roy Dunkle located on Randolph County Road 400 West, they will find remains of organs of hogs and parts of two ears with orange tags on said parts of ears, and hog blood. (R. 107 and 108)”

¶9While the affidavit is replete with factual statements implicating the Dilks with the crime of theft, the only statement making reference to Dunkle is the statement that “[t]he Dilk’s informed affiant that they had got the hogs from Roy Dunkle who lived on Randolph County Road 400 West.” There is absolutely no statement of facts supporting the credibility of either of the Dilks contained in the affidavit. Nowhere is their past record of reliability stated.2 No extrinsic facts are given which would support their credibility. The Dilks were not the victims of the crime. Their statement is not against their own penal interest, but instead is an attempt to exculpate themselves and place the blame, if any, on Dun-kle. Dilks did not state, so far as the affidavit reveals, that they obtained the hogs from Dunkle at Dunkle’s residence, that they had seen the hogs there, or that they had witnessed the gutting of the animals at that location. The example given by Prof. Bruce Berner in his article, Search and Seizure: Status and Methodology, 8 Val.U.L.R. 471, 497 (1974), is relevant: “So if A tells the police, ‘D possesses heroin,’ the statement contains no facts indicating A’s competency; but if A says T saw D place heroin in his pocket,’ competency, for this purpose is shown.... ” (See also, Mann v. State, supra, where the owner of hogs, the victim of the crime, observed the hogs on defendant’s premises and identified them as his own.) Further, the statement of the Dilks does not establish a factual foundation for the belief that such statements were trustworthy. The credibility of the Dilks has not been established.

¶10I submit also that the statement of the Dilks as reported in the affidavit is totally *191insufficient to establish probable cause for believing the hog entrails, etc., would be found on Dunkle’s premises. Neither of the Dilks so stated, so far as the affidavit reveals, and the affidavit does not state any other facts which establish this fact. (See McClain v. State, (1980) Ind., 410 N.E.2d 1297, for an example of other facts in the affidavit establishing credibility of the declarant.) Here, all the other facts in the affidavit are related to the Dilks and their involvement in the crime. None of the other facts point to Dunkle. Certainly the incriminating circumstances as to the Dilks cast suspicion upon their credibility, Pawloski v. State, supra, and render them unreliable absent other corroborating facts.

¶11In addition, when determining whether the facts stated in the affidavit support a finding that the informant is credible the court may not look beyond the affidavit itself. Knaub v. State, supra.3Likewise, the determination of probable cause must be made from the factual information on the face of the affidavit, Layman v. State, supra, that being the only evidence presented here to support issuance of the search warrant. The fruits of the search can never be used to justify a search. The right to issue a search warrant depends upon the facts existing at the time the showing is made for issuance of the warrant. Ferry v. State, (1970) 255 Ind. 27, 262 N.E.2d 523; Ashley & Taylor v. State, (1968) 251 Ind. 359, 241 N.E.2d 264. Thus, the deficiencies in the affidavit here cannot be supplied by evidence of what was found in the search.

¶12If the basis for the search warrant, whether affidavit or testimony, does not provide a sufficient foundation for finding probable cause, the warrant is defective and evidence sensed and obtained through the warrant is inadmissible at the trial. McClain v. State, supra; Layman v. State, supra. Since neither the credibility of the Dilks nor a factual basis for determining probable cause were established by the affidavit, it was insufficient and the warrant issued pursuant to such affidavit was defective. Here, a proper motion to suppress and proper objections to the evidence were made. Thus, admission of the evidence was error. Further, admission of such evidence was clearly prejudicial in view of the conflicts in the evidence and questions of credibility involved. I would reverse the judgment and grant a new trial.