Donald Snover v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 30 2015, 9:40 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Kevin R. Hewlate Chandra K. Hein
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Snover, October 30, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1505-PC-320
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff. Shewmaker, Judge
Trial Court Cause No.
20C01-0611-PC-28
Brown, Judge.
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[1] Donald Snover appeals the denial of his petition for post-conviction relief.
Snover raises one issue which we revise and restate as whether Snover was
denied the effective assistance of appellate counsel. We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Snover’s direct appeal from his convictions of
dealing in methamphetamine as a class A felony and possession of marijuana as
a class D felony follow:
On November 12, 2003, a routine traffic stop in Elkhart, Indiana,
led to the arrest of the driver, Kelly Hammond, who had
outstanding warrants for his arrest. Upon his arrest, Hammond
admitted he had methamphetamine in the car, and a police
search recovered four grams of methamphetamine. After
Miranda warnings, Hammond gave a written and signed
confession. Thereafter, without the police making any promises
regarding his prosecution, Hammond told the police his source
for the drugs was Donald Snover. Hammond reported Snover
had additional drugs in his second floor bedroom at his house on
Laurel Street in Elkhart.
That same day, police prepared a search warrant affidavit that
provided:
The undersigned Affiant swears upon his oath that
he believes and has good cause to believe that:
Certain evidence involved in the commission of the
crime of possession of and/or use of and/or dealing
in methamphetamine, cocaine, marijuana, or other
controlled substances, or drug paraphernalia in
violation of I.C. 35-48-4 et seq. is concealed in, on, or
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about a residence situate[d] at 821 Laurel St., City of
Elkhart, Elkhart County, State of Indiana, said
premises being more particularly described as
follows: 821 Laurel St. is believed to be the residence
of Donald W. Snover and is a two-story single family
dwelling. The house has gray vinyl siding with white
trim around the windows and doors and is on the
southeast corner of Laurel and Plum. There are
landscape timbers and bushes on the north side of the
house, which surround a wooden porch. The
numbers “821” are black and affixed vertically to the
right of the front door. There is a black metal
mailbox to the right side of the door and underneath
the numbers. There is a wooden deck on the south
side of the house. There is an attached garage on the
east side of the house.
This Affiant bases his belief and cause for belief on
the fact that:
1. The affiant is [a] police officer with the Elkhart
Police Department and has been employed in that
capacity for six (6) years. The affiant has participated
in approximately twenty (20) drug investigations and
arrests during his tenure. These investigations have
led to the seizure of methamphetamine, crack
cocaine and marijuana.
2. The affiant attended a gang conference and
seminar in Chicago, Illinois. The gang school
included training on numerous types of narcotics and
hidden compartments. The affiant has also attended
a seminar for drug investigations for the patrol
officer.
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3. On July 31, 2003, Investigator William Wargo
from the Elkhart County Prosecutor’s Office received
drug intelligence in reference to 821 Laurel St. The
intelligence was provided by a confidential source
who had provided information in the past which was
determined to be credible and reliable. The CS stated
that Don Snover of 821 Laurel St. was dealing
ounces of methamphetamine from his residence,
indicating that this was an ongoing long-term
operation.
4. On November 12, 2003, the affiant executed a
traffic stop at the intersection of Nappanee St. and
W. Beardsley in Elkhart County, Indiana. The
affiant arrested the driver, Kelly Hammond, with a
date of birth of July 8, 1960, on an outstanding
Elkhart County warrant. During the search incident
to lawful arrest, the affiant located a lunch box on the
passenger’s side floorboard. The lunch box
contained a plastic bag containing approximately 4.0
grams of suspected methamphetamine. The
methamphetamine later tested positive with the
MDMA/methamphetamine test kit. Thereafter, after
being advised of his statutory and constitutional
rights, Kelly Hammond gave a statement against his
own penal interests to Cpl. Ballard and Cpl.
Buchmann. This statement was made after his arrest
and without any promises or consideration being
given to him by any law enforcement officer. In the
statement, Kelly Hammond stated that the
methamphetamine was his and it was one-eighth of
an ounce. Kelly Hammond stated that he purchased
the methamphetamine from Donald Snover for
$125.00 just prior to the traffic stop. Kelly
Hammond stated that he purchased the
methamphetamine in an upstairs bedroom at
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Snover’s residence at 821 Laurel Street. Kelly
Hammond further stated that at the same time of the
purchase, he observed Donald Snover in possession
of an additional quantity of controlled substances
which he estimated to be approximately three-
quarters of a pound of methamphetamine and one
pound of marijuana.
5. The affiant researched the Elkhart Police
Department RMS and located Donald Snover.
Donald Snover is described as a white male with a
date of birth of December 13, 1959. Donald Snover
is also described as being 5’6”, 135 lbs., with brown
hair and green eyes. Donald Snover listed 821 Laurel
St., Elkhart, Indiana as his address. The affiant also
ran an Interstate identification Index/Criminal
History on Donald Snover. The Criminal History
stated that Donald Snover was arrested for Felony
Possession of Marijuana on October 4th, 1999.
6. All of the aforesaid facts are within the personal
knowledge of the Affiant and/or have been
corroborated by the information and investigation
specified above for the offenses of dealing in and/or
possession of and/or use of methamphetamine and
other controlled substances and that evidence of same
is concealed in or about the above described premises
which is within the County of Elkhart, State of
Indiana. Further, the affiant has probable cause to
believe that the information provided by Kelly
Hammond is truthful and accurate based upon (1) the
corroboration from the prior CS whose information
indicated the presence of long-term drug trafficking
by Donald Snover at his residence on Laurel Street
and (2) the fact that the information was provided by
Hammond without any consideration, included
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statements made which were against his penal
interests, and were provided by him with the
knowledge that his identity would be disclosed.
7. Based upon the foregoing the affiant verily believes
that a search of the residence identified in the
paragraphs above will disclose the existence of:
methamphetamine, cocaine, marijuana, narcotic
drugs or other controlled substances, drug
paraphernalia, drug ledgers or records of dealing in
such controlled substances, money, scales used for
weighing controlled substances, packaging materials
for such substances, documents of residency, and/or
other physical evidence indicative of possession of
and/or use and/or dealing of cocaine,
methamphetamine, marijuana, or controlled
substances and paraphernalia.
(App. at 23-24.)
Based on that affidavit, a judge issued the search warrant. Police
executed the warrant the night of November 12th and the early
morning of November 13th. In Snover’s bedroom, they found
280.70 grams of marijuana, 46.07 grams of methamphetamine,
464.42 grams of amphetamine, a triple-beam scale, an electronic
scale, baggies, a tile with a line of drugs and a straw, $1,400 in
cash, and a notebook resembling a drug ledger. Snover had $350
on his person.
Snover v. State, 837 N.E.2d 1042, 1045-1047 (Ind. Ct. App. 2005).
[3] On November 17, 2003, the State charged Snover with dealing in
methamphetamine as a class A felony and possession of marijuana as a class D
felony. Id. at 1047. On December 28, 2004, Snover filed a motion to suppress
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evidence and argued that the search warrant was not based upon reliable and
credible information, was based upon stale information, and violated his rights.
[4] On January 3, 2005, the court held a hearing on the motion to suppress, and
Snover’s trial counsel argued as set forth in the motion, and stated that the issue
was whether “the officers exercised bad faith in obtaining the search warrant.”
Trial Transcript at 182. The court asked what evidence of bad faith existed, and
defense counsel responded that part of the information in the affidavit for the
search warrant was stale and was used to “bootstrap the argument that a person
who’s reliability is unknown is sufficient . . . .” Id. at 183.
[5] After some discussion, the prosecutor asserted that paragraph 3 of the affidavit
was not included to “bootstrap or to anything else as it relates to reliability of
the information provided by Kelly Hammond other than to simply report to the
magistrate that there had been other intelligence.” Id. at 187. The prosecutor
also argued that “it’s not in any way used to attempt to mislead the magistrate
or attempt to indicate that the reliability of the information provided by
Hammond should be enhanced because of the information from July 31, 2003.”
Id. at 188. The prosecutor also noted that paragraph 4 of the affidavit included
Hammond’s identity and referred to a statement against his penal interest. The
following day, the court denied the motion to suppress.
[6] A jury found Snover guilty of both counts. 837 N.E.2d at 1047. The court
imposed concurrent sentences of thirty-five years for dealing methamphetamine
and one-and-a-half years for possession of marijuana. Id.Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015 Page 7 of 22
[7] On direct appeal, Snover’s appellate counsel filed a brief on June 6, 2005, and
argued that the trial court should have suppressed the evidence found in
Snover’s home because the judge issuing the search warrant did not have a
substantial basis to believe the statements in the affidavit in support of the
application for the warrant established probable cause. Appellate counsel also
argued that the good faith exception to the exclusion doctrine did not apply
because the warrant was based on an affidavit so lacking in indicia or probable
cause as to render belief in its existence unreasonable. The State argued that
the warrant was either supported by probable cause or the evidence seized was
admissible under the good faith exception in United States v. Leon, 468 U.S. 897,
104 S. Ct. 3405 (1984).
[8] This court observed that the credibility of an informant could be established by
declarations against penal interest. 837 N.E.2d at 1048-1049. The court agreed
with Snover that Hammond’s statement was not against his penal interest and
thus did not demonstrate he was a credible source of information, and that no
other information in the affidavit demonstrated Hammond’s credibility. Id. at
1049. The court observed that Corporal Ballard learned Snover had been
arrested four years earlier for possession of marijuana but noted that an arrest
without a conviction is not proof of prior possession. Id. The court then
observed that the only remaining evidence was the four-month-old report from
an unnamed confidential source indicating Snover was selling
methamphetamine from his residence and that while stale information alone
may not support a finding of probable cause, it may be considered as part of the
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totality of the circumstances creating probable cause. Id. at 1049-1050. The
court held that Corporal Ballard provided no evidence by which the issuing
judge could have determined the confidential informant had credibility. Id. at
1050. The court further held that “[b]ecause the affidavit did not demonstrate
the credibility of either Hammond or the confidential informant, and did not
contain other information corroborating their reports, probable cause did not
exist to support issuing a search warrant for Snover’s house.” Id.[9] The court then addressed the good faith exception, concluding that “[w]hile we
find the warrant on which police relied to search Snover’s residence was not
supported by probable cause, we cannot characterize it as so facially deficient
that the executing officers could not reasonably presume it to be valid.” Id. at
1050-1051. The court affirmed the admission of the evidence found at Snover’s
house. Id.[10] Judge Kirsch concurred in result and concluded that Hammond’s statements to
police qualified as statements against penal interest. Id. at 1052. He also stated
that even if neither “the statements made by the confidential informant nor by
Hammond individually provide a sufficient basis for the determination of
probable cause, taken together they are sufficient for a reasonably prudent
person to conclude that a search of Snover’s residence would produce evidence
of a crime as, indeed, it did.” Id.[11] In 2014, Snover filed an amended petition for post-conviction relief and argued
that his appellate counsel was ineffective for failing to argue that the State
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waived the issue of whether the good faith exception applied because it did not
assert the argument prior to appeal.
[12] On January 8, 2015, the post-conviction court held a hearing. At the hearing,
Snover’s appellate counsel testified that he did not know whether he was aware
of the case of Merritt v. State at the time he was working on the appeal and that
he did not recall if he considered citing Merritt.
[13] On April 28, 2015, the post-conviction court denied Snover’s petition for relief.
The order states in part:
30. In the instant case, [appellate counsel] testified that he did
not recall being aware of the case of Merritt v. State, 803 N.E.2d
257 (Ind. Ct. App. 2004), and could not recall whether he
considered it when filing the appeal . . . . There was, however,
no additional questioning or testimony as to whether [appellate
counsel] was unaware of the proposition of law that [Snover]
claims Merritt stands for; to-wit: the good faith exception
argument is waived if it is not raised by the State at the
suppression hearing.
31. It is [Snover’s] position that Merritt would have led to a
winning argument on appeal had [appellate counsel] cited the
case. This is not necessarily true. When reviewing a trial court’s
ruling on the validity of a search and seizure, the reviewing court
considers the evidence most favorable to the ruling and any
uncontradicted evidence to the contrary to determine whether
there is sufficient evidence to support the ruling. Melton v. State,
705 N.E.2d 564, 566 (Ind. Ct. App. 1999). A trial court’s ruling
on a motion to suppress may be affirmed if it is sustainable on
any legal grounds apparent in the record. (Emphasis added).
Robinson v. State, 730 N.E.2d 185, 192 (Ind. Ct. App. 2000),
citing Alford v. State, 699 N.E.2d 247, 250 (Ind. 1998).
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32. Similarly, in the instant case, this court found that probable
cause existed in the search warrant affidavit; the Indiana Court of
Appeals disagreed; however, determined that the evidence was
admissible under another legal ground apparent in the record.
Two [judges] found it admissible under the good faith exception,
and C.J. Kirsch, writing separately, agreed with the trial court’s
determination that probable cause existed owing to statements in
[sic] penal interests. Snover, 837 N.E.2d 1051-52. Essentially,
the Court found that the search warrant in [Snover’s] case was
not so facially deficient that the executing officers could not
reasonably presume it to be valid. Snover at 1051.
33. While the post conviction record establishes that [appellate
counsel] was not aware of the Merritt decision, he did address a
legal theory on appeal that was apparent in the trial record. The
circumstances in the instant case are somewhat distinguishable
from those in Merritt as the need to raise the good faith exception
was not so obvious that the State or counsel would have
reasonably raised it at the suppression hearing. This is
particularly true since the trial judge and the three Indiana Court
of Appeals [judges] who reviewed this case did not agree on the
appropriate legal theory of admissibility, although all agreed the
evidence was admissible. Therefore, it cannot be said that
[appellate counsel] was ineffective for not challenging the
admissibility of the evidence on every legal theory available. For
these reasons, the court concludes that [Snover] has not met his
burden of proving that there was a reasonable likelihood of a
different outcome had [appellate counsel] done so. Accordingly,
[Snover] has failed to prove that he received ineffective assistance
of appellate counsel.
Appellant’s Appendix at 115-116.
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Discussion
[14] Before discussing Snover’s allegations of error, we observe that the purpose of a
petition for post-conviction relief is to raise issues unknown or unavailable to a
defendant at the time of the original trial and appeal. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). A post-conviction petition is not a substitute for an
appeal. Id. Further, post-conviction proceedings do not afford a petitioner a
“super-appeal.” Id. The post-conviction rules contemplate a narrow remedy
for subsequent collateral challenges to convictions. Id. If an issue was known
and available but not raised on appeal, it is waived. Id.[15] We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id. Further,
the post-conviction court in this case entered findings of fact and conclusions
thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a showing
of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless
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clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[16] Snover argues that his appellate counsel was ineffective because he failed to
argue that the good faith exception was waived, noting that his appellate
counsel failed to cite Merritt v. State, 803 N.E.2d 257 (Ind. Ct. App. 2004),
which held that the State’s argument on appeal that seized evidence was
admissible under the good faith exception to the warrant requirement was
waived because the State did not advance the argument in its memorandum in
opposition to the motion to suppress or at the suppression hearing. Snover
points out that Merritt was decided on February 13, 2004, well before his
appellate counsel filed a brief on June 6, 2005. He asserts that no other case
contradicts the holding in Merritt and that the State did not raise the good faith
exception to the trial court. He contends that his appellate counsel should have
cited Merritt and argued that the issue was waived, that his appellate counsel’s
failure to raise Merritt was not strategic, and that he was prejudiced.
[17] The State argues the post-conviction court appropriately observed that appellate
counsel’s lack of familiarity with Merritt does not equate with ignorance about
when a waiver argument is available, and that it did not waive its good faith
claim because it asserted it at the suppression hearing. The State also argues
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that Merritt appears to be inconsistent with Ind. Code § 35-37-4-51 and that the
statute places an obligation on the trial court, in its discretion, to exclude
evidence if it finds that officers did not act in good faith, concluding that
appellate counsel was not deficient for not arguing waiver because it was
unclear whether the State was required to affirmatively assert good faith. It also
posits that Snover was not prejudiced because a trial court’s decision to admit
or exclude evidence is sustainable on any basis in the record and that this court
was free to affirm Snover’s convictions based on good faith regardless of
whether the State affirmatively asserted it.
1
Ind. Code § 35-37-4-5 is titled “Evidence unlawfully obtained by officer in good faith; exclusion” and
provides:
(a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an
infraction, the court may not grant a motion to exclude evidence on the grounds that the search
or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a
law enforcement officer in good faith.
(b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith
if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon a determination of probable
cause by a neutral and detached magistrate, that is free from obvious defects other
than nondeliberate errors made in its preparation, and that was reasonably believed
by the law enforcement officer to be valid; or
(B) a state statute, judicial precedent, or court rule that is later declared
unconstitutional or otherwise invalidated; and
(2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable
minimum basic training requirements established by rules adopted by the law enforcement
training board under IC 5-2-1-9.
(c) This section does not affect the right of a person to bring a civil action against a law
enforcement officer or a governmental entity to recover damages for the violation of his rights
by an unlawful search and seizure.
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[18] In his reply brief, Snover states that any argument by the prosecutor focused on
the actions of police in obtaining the search warrant and that this argument was
based on Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), which is an
entirely separate argument from the good faith exception based on United States
v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), and which focuses on the action
of the police after the search warrant is issued.
[19] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. To meet the appropriate test for prejudice, the petitioner must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
We apply the same standard of review to claims of ineffective assistance of
appellate counsel as we apply to claims of ineffective assistance of trial counsel.
Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,
531 U.S. 1128, 121 S. Ct. 886 (2001).
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[20] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).
[21] Ineffective assistance of appellate counsel claims fall into three categories: (1)
denial of access to an appeal; (2) waiver of issues; and (3) failure to present
issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997), reh’g denied,
cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). Snover asserts that his
appellate counsel was ineffective because he did not “competently present the
issue of whether the evidence seized as part of the execution of the search
warrant was properly admitted.” Appellant’s Brief at 6. He states that his
appellate counsel properly raised the suppression issue and “just failed to argue
that the good faith exception was waived.” Id. at 7. He concedes that “[c]laims
of inadequate presentation of certain issues, when such were not deemed
waived in the direct appeal, are the most difficult to advance.” Id. (citing
Bieghler, 690 N.E.2d at 195).
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[22] Indeed, in Bieghler, the Indiana Supreme Court held that “[c]laims of
inadequate presentation of certain issues, when such were not deemed waived
in the direct appeal, are the most difficult for convicts to advance and reviewing
tribunals to support.” Bieghler, 690 N.E.2d at 195. The Court expressed two
reasons for this proposition. First, “these claims essentially require the
reviewing tribunal to re-view specific issues it has already adjudicated to
determine whether the new record citations, case references, or arguments
would have had any marginal effect on their previous decision,” and “this kind
of ineffectiveness claim, as compared to the others mentioned, most implicates
concerns of finality, judicial economy, and repose while least affecting
assurance of a valid conviction.” Id. “Second, an Indiana appellate court is not
limited in its review of issues to the facts and cases cited and arguments made
by the appellant’s counsel.” Id. The Court expanded on the second reason by
stating:
We commonly review relevant portions of the record, perform
separate legal research, and often decide cases based on legal
arguments and reasoning not advanced by either party. While
impressive appellate advocacy can influence the decisions
appellate judges make and does make our task easier, a less than
top notch performance does not necessarily prevent us from
appreciating the full measure of an appellant’s claim, or amount
to a “breakdown in the adversarial process that our system
counts on to produce just results,” Strickland, 466 U.S. at 696,
104 S.Ct. at 2069.
Id. at 195-196 (some internal citations omitted). “For these reasons, an
ineffectiveness challenge resting on counsel’s presentation of a claim must
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overcome the strongest presumption of adequate assistance.” Id. at 196.
“Judicial scrutiny of counsel’s performance, already ‘highly deferential,’
Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995), is properly at its highest.”
Id. “Relief is only appropriate when the appellate court is confident it would
have ruled differently.” Id.[23] In Merritt, this court addressed whether a trial court erred in denying the
defendant’s motion to suppress. 803 N.E.2d at 258. We observed that the State
argued on appeal that even if probable cause was lacking, the evidence seized
was admissible under the good faith exception to the warrant requirement. Id.
at 261. We also observed that the State did not advance this argument in its
memorandum in opposition to the motion to suppress or at the suppression
hearing and that, “[a]ccordingly, the issue is waived.” Id. (citing Taylor v. State,
710 N.E.2d 921, 923 (Ind. 1999) (finding that a party is limited to the specific
grounds argued to the trial court and cannot assert new bases for admissibility
for the first time on appeal)).
[24] Even assuming that appellate counsel was deficient in failing to cite Merritt, we
cannot say that the prosecutor failed to argue good faith or waived the
argument. The good faith exception was enunciated in United States v. Leon, 468
U.S. 897, 104 S. Ct. 3405 (1984). Generally, the exclusionary rule “does not
require the suppression of evidence obtained in reliance on a defective search
warrant if the police relied on the warrant in objective good faith.” Jackson v.
State, 908 N.E.2d 1140, 1143 (Ind. 2009) (citing United States v. Leon, 468 U.S.
897, 104 S. Ct. 3405 (1984)). The good faith exception is not available in some
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situations, including where (1) the magistrate is “misled by information in an
affidavit that the affiant knew was false or would have known was false except
for his reckless disregard of the truth,” or (2) the warrant was based on an
affidavit “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. (quoting Leon, 468 U.S. at 923, 104 S. Ct.
3405).
[25] To the extent Snover asserts that the argument made by the prosecutor focused
on the actions of the police in obtaining the search warrant and Franks v.
Delaware, and not the good faith exception which focuses on the police actions
after the search warrant is issued and is based upon United States v. Leon, we will
discuss these cases.
[26] In Franks, the United States Supreme Court addressed whether a defendant in a
criminal proceeding ever has the right under the Fourth and Fourteenth
Amendments, subsequent to the ex parte issuance of a search warrant, to
challenge the truthfulness of factual statements made in an affidavit supporting
the warrant. 438 U.S. at 155, 98 S. Ct. at 2676. The Court held:
where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary
to the finding of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant’s request. In the event
that at that hearing the allegation of perjury or reckless disregard
is established by the defendant by a preponderance of the
evidence, and, with the affidavit’s false material set to one side,
the affidavit’s remaining content is insufficient to establish
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probable cause, the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
Id. at 155-156, 98 S. Ct. at 2676.
[27] In Leon, the United States Supreme Court addressed “whether the Fourth
Amendment exclusionary rule should be modified so as not to bar the use in the
prosecution’s case in chief of evidence obtained by officers acting in reasonable
reliance on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause.” 468 U.S. at 900, 104 S.
Ct. at 3409. The Court cited Franks multiple times and discussed the good faith
of the officers applying for the warrant as well as the officers executing the
warrant. The Court held that the suppression of evidence obtained pursuant to
a warrant should be ordered only on a case-by-case basis and only in those
unusual cases in which exclusion will further the purposes of the exclusionary
rule. Id. at 918, 98 S. Ct. at 3418. The Court observed that where the official
action was pursued in complete good faith, the deterrence rationale behind the
exclusionary rule loses much of its force. Id. at 919, 98 S. Ct. at 3418-3419.
The Court held that once the warrant issues, there is literally nothing more the
policeman can do in seeking to comply with the law. Id. at 921, 98 S. Ct. at
3419. The Court also observed that penalizing the officer for the magistrate’s
error, rather than his own, could not logically contribute to the deterrence of
Fourth Amendment violations. Id. The Court noted:
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References to “officer” throughout this opinion should not be
read too narrowly. It is necessary to consider the objective
reasonableness, not only of the officers who eventually executed
a warrant, but also of the officers who originally obtained it or
who provided information material to the probable-cause
determination. Nothing in our opinion suggests, for example,
that an officer could obtain a warrant on the basis of a “bare
bones” affidavit and then rely on colleagues who are ignorant of
the circumstances under which the warrant was obtained to
conduct the search.
Id. at 923 n.24, 98 S. Ct. at 3420 n.24. The Court cited Franks and held:
“Suppression therefore remains an appropriate remedy if the magistrate or
judge in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard of the truth.” Id. at 923, 98 S. Ct. at 3421 (citing Franks, 438 U.S.
154, 98 S. Ct. 2674). The Court concluded: “In the absence of an allegation
that the magistrate abandoned his detached and neutral role, suppression is
appropriate only if the officers were dishonest or reckless in preparing their
affidavit or could not have harbored an objectively reasonable belief in the
existence of probable cause.” Id. at 926, 98 S. Ct. at 3422.
[28] At the hearing on Snover’s motion to suppress, the prosecutor responded to the
argument of Snover’s trial counsel that the officers exercised “bad faith” in
obtaining the search warrant. Trial Transcript at 182. Specifically, the
prosecutor argued that paragraph 3 of the affidavit was not included to
“bootstrap or to anything else as it relates to reliability of the information
provided by Kelly Hammond other than to simply report to the magistrate that
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there had been other intelligence.” Id. at 187. The prosecutor also argued that
“it’s not in any way used to attempt to mislead the magistrate or attempt to
indicate that the reliability of the information provided by Hammond should be
enhanced because of the information from July 31, 2003.” Id. at 188. The
prosecutor also maintained that paragraph 4 of the affidavit included
Hammond’s identity and referred to a statement against his penal interest.
Given the discussion in Leon, we cannot say that the prosecutor failed to raise
the good faith exception. Accordingly, we cannot say that Snover
demonstrated a reasonable probability that, but for appellate counsel’s failure to
cite Merritt, the result of the proceeding would have been different.
Conclusion
[29] For the foregoing reasons, we affirm the post-conviction court’s denial of
Snover’s petition for post-conviction relief.
[30] Affirmed.
Riley, J., and Altice, J., concur.
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