Brandon McGrath v. State of Indiana , 81 N.E.3d 655 ( 2017 )

FILED
Jul 31 2017, 5:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian J. Johnson Curtis T. Hill, Jr.
Danville, Indiana Indiana Attorney General
Jodi Kathryn Stein
Laura R. Anderson
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon McGrath, July 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1610-CR-2270
v. Appeal from the
Marion Superior Court.
State of Indiana,
The Honorable
Appellee-Plaintiff. Jose D. Salinas, Judge.
Trial Court Cause No.
49G14-1404-FD-21182
Kirsch, Judge
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Statement of the Case 1
[1] After law enforcement officers followed up on a tip from CrimeStoppers, they
requested a warrant to use thermal imaging technology to gain additional
evidence to confirm whether an active indoor marijuana grow operation existed
at the location designated in the tip. The warrant was granted and the results of
the imaging showed higher than normal heat signatures emanating from an
upstairs area of the house at that address. Officers requested a search warrant
for the premises based on evidence presented in both search warrant
applications.
Issue
[2] The dispositive question here is whether the evidence presented with respect to
the first search warrant application sufficiently established probable cause to
support further investigation. We reverse and remand.
Facts and Procedural History
[3] At McGrath’s bench trial, the parties stipulated that in April 2014, an
anonymous call to CrimeStoppers alerted IMPD of a possible active marijuana
grow operation located at 5926 North Crittenden Avenue in Indianapolis. The
1
We commend counsel for their willingness to present their arguments on appeal at oral argument held at
Trine University, in Angola, Indiana, before this year’s group of attendees at Hoosier Boys State. Counsels’
capable written and oral advocacy has greatly aided this court in the disposition of the appeal. We also
extend our gratitude to those at Trine University and all those, including the American Legion members,
who support Hoosier Boys State, for their hospitality.
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017 Page 2 of 31
tipster identified the house by the street address, its color, and the first names of
the occupants, Brandon and Kelsey. The tipster added that an odor of
marijuana often emanated from the house and a bright light was visible from a
window nightly.
[4] Detective Sergeant Kerry Buckner of IMPD, following up on the tip, conducted
surveillance on the house during daylight hours, verifying the address and color
of the house provided by the tipster. The physical marking of the address was
only observable near the house, not from the street. He also noted that though
the home had a central air conditioning system, there were individual air
conditioning units in both upstairs windows and several of the windows had a
dark covering—consistent with an indoor marijuana grow operation, a
conclusion reached based on Detective Buckner’s training and experience.
[5] Later that evening, Detective Buckner continued his surveillance and observed
a light of an “apparent difference” emanating from an upstairs window. Ex.
Vol. p. 8. Based on the officer’s training and experience, he concluded that the
high intensity glow of the light was consistent with the type of lights used for
indoor grow operations. The officer had also confirmed through police
databases, which were not accessible by the public, that the occupants of the
house were a male named Brandon McGrath and a female named Kelsey
Bigelow. Bigelow was listed as the owner of the house. BMV records, which
were also restricted from public access, indicated that 5926 North Crittenden
Avenue was the listed address on both McGrath’s and Bigelow’s driver’s
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licenses. Detective Buckner did not detect the odor of marijuana upon his
evening inspection of the residence.
[6] Next, Detective Buckner applied for a search warrant to use a forward looking
infrared, or FLIR, which is a thermal imaging detection system mounted to an
2
aircraft to detect the presence of a heat signature consistent with an active
indoor marijuana grow operation. His application read as follows:
I am a police officer with the Indianapolis Metropolitan Police
Department (IMPD). I have been a police officer in
Indianapolis/Marion County since 1991. I am a “law
enforcement officer” as that term is defined in I.C. 35-31.5-2-185.
I am currently the supervisor of the Violent Crimes Unit of the
Indianapolis Metropolitan Police Department and have been so
assigned since 2007. In connection with my official duties, I am
involved in investigations relating to violations of the Indiana
controlled substances laws.
I have received training relating to enforcement of the Indiana
controlled substances laws, including the following:
1. My initial training at the Indiana Law Enforcement
Academy in 1991. I have satisfied the minimum basic
training requirements established by rules adopted by the
law enforcement training board under I.C. 5-2-1-9 and
described in I.C. 35-37-4-5.
2. Basic Detective School, through the Marion County
Sheriffs[sic] Department in 1997;
3. Hotel/Motel Interdiction/Hidden compartment training
in March of 2002;
2
The record is unclear whether the “aircraft” was a drone, helicopter, or plane.
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4. Highway Interdiction training through the U.S.
Department of Justice Drug Enforcement Administration
July 1998;
5. Drug Enforcement Administration basic cannabis
Investigations course June 1997;
6. Undercover Narcotics Schools and Narcotics Detection
Schools hosted by Indiana State Police, IDEA, FBI, and
DEA
7. Monthly operational and legal update training by the
Marion County Prosecutor’s Office.
8. Yearly in-service training.
Based upon my training and experience, I am familiar with the
methods employed by individuals engaged in the trafficking of
controlled substances including the following:
1. Detective Sergeant Kerry Buckner, swears or affirms that he believes
and has good cause to believe that a controlled substance, to wit: Marijuana,
Cannabis, the possession of which is unlawful, is being unlawfully
manufactured and cultivated at an indoor grow operation, located at 5926
Crittenden Ave, Indianapolis, Marion County, Indiana.
Your affiant is seeing a search warrant to use a thermal imaging
device on and at the residence located at 5926 Crittenden Ave,
Indianapolis, Marion County, Indiana.
The use of a thermal imaging device will assist your Affiant in
developing more facts in this investigation of the offense under the Uniform
Controlled Substances Act, in violation of Indiana Code 35-48-4-10
manufacturing or cultivation of marijuana, and to indicate the presence of
artificial lighting for the cultivations[sic] of marijuana. Based on my training,
experience and participation in numerous indoor grow investigations, and
based on my experience from other experienced narcotics officers, including
those officers that trained in the use of thermal image technology, with whom
I’m associated, your Affiant knows that:
A) With respect to indoor marijuana cultivation and propagation
operations, suspects routinely utilize the following items and
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methods, among others, in their attempts to avoid detection from
the law enforcement authorities:
1.) Blackened out or covered windows, doors and other visibly
detectable areas to avoid outsiders from identifying any portion
of the grow operation.
2.) Guard dogs are used to protect their growing operations from
theft and to alert them to subjects, including law enforcement,
who are on or are approaching their property.
3.) Fixed, movable, or other type of venting systems, usually
located upon high areas of buildings to vent heat, fumes and
odors escaping the cultivation structure.
4.) Fictitious names and/or social security numbers on utility
records.
5.) Theft of electrical power by alteration of electrical systems on
the property by bypassing the utility meter so that excess usage
caused by indoor grow lighting equipment does not register with
the utility company.
6.) Use of portable top large scale combustible fuel generators to
develop power for indoor lighting equipment to avoid registering
high bills with the local utility company.
7.) The use of deodorizers and masking agent systems to mask
the odor of growing marijuana that is emitted from the venting
system.
8.) Remote locations and outbuildings which are detached from
the main residence to prevent discovery and aid in concealment.
This can also include room built underground to house the
growing operation.
9.) The use of high intensity grow lights that produce large
amounts of heat in enclosed areas and use large amounts of
electricity.
B.) That marijuana Cultivation is a complex enterprise that:
1.) Takes at least 7-10 days to plant from clone to vegetative
stage, can take 3-8 weeks to take plant from vegetative to
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flowering stage, and takes at least 3-6 weeks to take the plant
from flowering stage to harvest.
2.) Takes approximately 3 gallons of potting soil per plant and
that the soil is used only once and then discarded.
3.) If hydroponically grown, no soil is required. This method
would require the roots to be suspended in medium to large
quantities of water and water soluble fertilizer.
4.) Requires a high heat, high humidity or tropical type
environment to thrive.
5.) Uses a high intensity halide or high pressure sodium lights
that require large amounts of power and emit a very bright white
light and high amount of heat. The heat from these halide lights
often causes visible differences in the moisture collection on the
roof of the structure in which the grow operation is located.
6.) Causes some of the heat from the environment to dissipate
into other objects and the structure in which the growing
operation is being conducted. As a result of this, the temperature
on the outside of the walls of the portions of the property
containing the grow operation are substantially higher that [sic]
the outside of the walls of the portion of the structure used for
normal living or storage space.
7.) Needs to be vented to allow some heat to escape and fresh air
to enter. This vent or the high heat dissipating through the
structure can be detected using thermal imaging. Thermal
imaging is a technique of using non-contact, non-intrusive, non-
destructive scanning equipment that detects invisible infrared
radiated heat at surface levels and converts this energy into
visible light.
8.) Are commonly divided into two or more rooms for different
stages of growing operation, i.e. growing rooms, drying rooms,
supply rooms.
9.) The odor associated with growing marijuana has been
compared to an odor which is a “skunk” or a “pungent sweet
musty” like smell.
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The information that is set forth below in this Search Warrant
Affidavit is either information known personally to me,
information that I obtained from other law enforcement sources,
information obtained from public records, or information from a
source otherwise identified in this Search Warrant Affidavit.
THE INVESTIGATION
During the month of April 2014, this affiant received
information from an anonymous source concerning the house
and occupants located at 5926 Crittenden Ave. A residence that
is particularly described as a multiple story, single family
dwelling that has a yellow siding type covering. The house has
brown gutters and trim with a gray roof. There are no numbers
visible near the front door which is a dark color. The house is
situated between addresses 5920 and 5930 and is located on
Marion County parcel number 8014228.
The information indicated that there was possibly a
marijuana grow [operation] inside of the residence. The tipster
described the residence as being yellow. They stated that there
was a male and female occupant of the residence. The male was
only identified as “Brandon” and the female was identified as
“Kelsey”. The anonymous person indicated that on a nightly
basis the odor of marijuana can be smelled from outside of the
house, and that bright light can be seen from outside the
residence.
On April 14, 2014 this affiant initiated an independent
investigation on 5926 Crittenden Ave. I conducted day time
surveillance on the residence and noted that the house is yellow.
I also observed that several of the house windows had dark
covering on them which is consistent with person(s) that operate
indoor grow operations.
The residence has a central air conditioning system, but
the windows of the upstairs portion have independent air
conditioning units. When individuals operate indoor grow
operations, they must keep the plants’ growing temperature
between 70 and 80 degrees Fahrenheit. Artificial lighting is used
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during the indoor grow process. The lights that are normally
used are High Pressure Sodium or Metal Halide lights. These
lights produce high temperatures that have the possibility of
burning the marijuana before it could grow. Growers typically
use air conditioning units or high speed fans to balance the
temperature in the grow room.
Later in the evening on April 14, 2014 this affiant
conducted surveillance on 5926 Crittenden Ave. During my
surveillance I noted that the north, upstairs window had a light
emitting through the window covering. When I visually
compared the light emitting from the north upstairs window with
the lighting emitting from the west upstairs window, there was an
apparent difference. Through my experience and training I
recognized the high intensity glow coming from the north
upstairs window as being consistent with light that emits from
High Pressure Sodium light and Metal Halide lights.
This affiant learned through research using police data
bases that the occupants of the house are Brandon McGrath and
Kelsey Bigelow. I also learned that Kelsey Bigelow is listed as
the owner of the house and property located at 5926 N
Crittenden.
Upon checking the Indiana Bureau of Motor Vehicle
records, this affiant found that the address listed on Brandon
McGrath and Kelsey Bigelows [sic] Indiana drivers’ license is
5926 N Crittenden Ave.
REQUEST FOR SEARCH WARRANT
Based off the above stated facts and attending
circumstances this affiant believes and has good cause to believe
that Brandon McGrath and Kelsey Bigelow are cultivating
marijuana. This affiant believes that they are using their
residence located at 5926 N Crittenden Avenue Indianapolis,
Indiana (Pictures as attachment A) to grow marijuana. This
affiant requests that a search warrant be issued to utilize an
aircraft mounted thermal imaging detection system to view the
residences and outbuildings on or about the curtilage of the
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property to detect the presence of a heat signature commensurate
with an indoor marijuana growing operation.
Appellant’s App. pp. 13-17.
[7] After the first warrant application was granted, the search was executed by
Detectives Michael Condon and Sergeant Edwin Andersen, whose experience
and training are not apparent from the record, but upon whose experience
Detective Buckner relied. Nevertheless, Detective Condon informed Detective
Buckner that he observed from the upstairs of the address a heat signature that
he recognized through his training and experience as being consistent with the
heat signature put off by an active indoor marijuana grow operation.
[8] Based on this additional information, Detective Buckner applied for a second
search warrant for the residence and property. After the warrant was granted,
the search revealed an elaborate, active, marijuana grow operation of 67.5
pounds of marijuana plants (180 individual plants) and over five pounds of
marijuana leaves. Officers also discovered plant fertilizer, heat lamps,
dehydrators, deodorizing machines, and drying racks. McGrath, who had been
Mirandized, told officers that he was unemployed and “that’s why he worked
inside the house.” Tr. p. 64.
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3
[9] The State charged McGrath with one count of dealing in marijuana as a Class
4
D felony and one count of possession of marijuana as a Class D felony.
5
McGrath requested a Franks hearing and filed a motion to suppress,
challenging the search warrants under both state and federal constitutions,
claiming a lack of probable cause. A hearing was held during which McGrath’s
Franks hearing arguments were incorporated but not specifically ruled upon.
The trial court denied the motion to suppress, and McGrath subsequently filed
a motion to correct error, which was apparently denied during a pre-trial
conference on October 23, 2015. After the conclusion of his bench trial, during
which the seized evidence was admitted over objection, McGrath was found
guilty as charged and sentencing was stayed pending this appeal.
Discussion and Decision
[10] When an appellant has lodged an unsuccessful motion to suppress evidence and
then proceeds to trial, the issue for appellate review is whether the trial court
abused its discretion by admitting the evidence against the logic and effect of
3
Ind. Code § 35-48-4-10 (2013).
4
Ind. Code § 35-48-4-11 (2013).
5
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), provided that if, after a hearing, a
defendant establishes by a preponderance of the evidence that the false statement was included in the
affidavit sworn to by a law enforcement officer, knowingly and intentionally, or with reckless disregard for
the truth, and the false statement was necessary to the magistrate’s finding of probable cause to issue the
warrant, the warrant is void and the fruits of the search are excluded as evidence at trial.
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the facts and the circumstances affecting a party’s substantial rights. Clark v.
State, 994 N.E.2d 252, 259 (Ind. 2013).
[11] We begin our discussion by acknowledging the extreme care used by the law
enforcement officers in this case in their attempts to adhere to proper
procedures in conducting this investigation. The law related to the use of
thermal imaging, like the technology it represents, is dynamic and developing.
For example, in this jurisdiction, in a case of first impression, the Seventh
Circuit of the United States Court of Appeals held that thermal imaging
scanning was not a search within the meaning of the Fourth Amendment,
joining the Eighth and Eleventh Circuits in doing so. U.S. v. Myers, 46 F.3d
668, 668 (7th Cir. 1995). The thermal imaging scanner in that case did not
penetrate the viewed object. The Court’s analysis focused on whether Myers
had a subjective expectation of privacy in the heat emitted from his home and
whether society recognized that expectation as reasonable.
[12] The holding in that case, however, later was abrogated by the United States
Supreme Court opinion in Kyllo v. U.S., 533 U.S. 27, 121 S. Ct. 2038, 150 L.
Ed. 2d 94 (2001). In this appeal from the Ninth Circuit, an agent used a
thermal imager to detect heat emissions from a home, without first seeking a
warrant. An evidentiary hearing established that the thermal imager was a non-
intrusive device, emitting no beams or rays, and showed a crude visual image of
the heat being radiated as was detectable from outside the house. The device
could not penetrate walls or windows to reveal human conversations or
activities, nor were intimate details of the home observed. Following the
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hearing, a search warrant was issued for the house based, in part, on the
scanning evidence.
[13] The U.S. Supreme Court reversed the denial of the motion to suppress the
evidence seized after the scanning had occurred stating, “Where, as here, the
Government uses a device that is not in general public use, to explore details of
the home that would previously have been unknowable without physical
intrusion, the surveillance is a ‘search’ and is presumptively unreasonable
without a warrant.” 533 U.S. at 40. The matter was remanded to the district
court to determine if the search warrant for the house was supported by
probable cause minus the evidence provided by the thermal imaging scanner.
Id.[14] Here, Detective Buckner correctly recognized that the use of the thermal
imaging scanner was a search and applied for a warrant to conduct that search.
“Generally, to be reasonable, a search must be conducted pursuant to a
properly-issued warrant supported by probable cause.” Pinner v. State, 74
N.E.3d 226, 229 (Ind. 2017). Many of the reported cases across the country
discussing the use of thermal imaging scanners, or FLIR, are appeals from the
use of that technology without first obtaining a search warrant for the use of the
technology. Those appeals come from decisions on motions to suppress or the
admission of evidence at trial, of evidence seized by way of the warrant to
search the residence, using the warrantless imaging information to establish
probable cause for that subsequent search.
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[15] Nonetheless, a warrant for the use of thermal imaging scanners is necessary and
must be supported by probable cause. “‘The 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.’”
Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009) (citing State v.
Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006), quoting Illinois v. Gates, 462 U.S.
213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) (emphasis added).
Regarding the levels of review, “The duty of the reviewing court is to determine
whether the magistrate had a ‘substantial basis’ for concluding that probable
cause existed.” McCollum v. State, 63 N.E.3d 5, 9 (Ind. Ct. App. 2016) (quoting
Illinois v. Gates, 462 U.S. at 238-39, 103 S. Ct. 2317) (emphasis added).
“‘[S]ubstantial 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.” Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997) (quoting Houser v.
State, 678 N.E.2d 95, 99 (Ind. 1997)).
[16] The definition of a reviewing court includes the trial court ruling on the motion
to suppress and an appellate court reviewing that decision. Jaggers, 687 N.E.2d
at 182. On appellate review, we consider only the evidence presented to the
issuing magistrate and not post hac justifications for the search. Id. “We
review the trial court’s substantial basis determination de novo.” McCollum, 63
N.E.3d at 9 (citing Jaggers, 687 N.E.2d at 182).
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[17] In Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied,
(internal citation omitted), in a case involving a traffic stop, not the issuance of
a search warrant, a panel of this court acknowledged both the substantial
deference given to courts that rule on motions to suppress and our de novo
review as follows:
Although a trial court’s determination of historical facts is
entitled to deferential review, we employ a de novo standard
when reviewing the trial court’s ultimate determinations of
reasonable suspicion and probable cause. In other words, when a
trial court has admitted evidence alleged to have been discovered
as the result of an illegal search or seizure, we generally will
assume the trial court accepted the evidence presented by the
State and will not reweigh that evidence, but we owe no
deference as to whether that evidence established the
constitutionality of a search or seizure.
[18] “Probable cause has long been described as a fluid concept incapable of precise
definition. It is to be decided based on the facts of each case.” McCollum, 63
N.E.3d at 9 (quoting Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997)). “The
level of proof necessary to establish probable cause is less than that necessary to
establish guilt beyond a reasonable doubt.” Id. (quoting Jellison v. State, 66
N.E.2d 532, 534 (Ind. Ct. App. 1995)). “Probable cause means a probability of
criminal activity, not a prima facie showing.” Id. (quoting Fry v. State, 25
N.E.3d 237, 245 (Ind. Ct. App. 2015), trans. denied).
[19] McGrath argues with respect to the first warrant that there was insufficient
evidence to corroborate the anonymous tip that there was ongoing criminal
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activity at his house such that search warrants were supported by probable
6
cause. We agree.
[20] Indiana Code section 35-33-5-2(b) (2005) provides in pertinent part that when
the supporting affidavit is based on hearsay, the affidavit must contain reliable
information establishing the credibility of the source and establishing that there
is a factual basis for the information furnished, or contain information that
establishes that the totality of the circumstances corroborates the hearsay.
However, “uncorroborated hearsay from a source whose credibility is itself
unknown, standing alone, cannot support a finding of probable cause to issue a
search warrant.” Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997) (citing Illinois
v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). According to
Gates, as relevant to this appeal, the reliability of hearsay, for purposes of
probable cause, may be established by independent police investigation
corroborating the informant’s statements. Id. Additionally, “probable cause
means a probability of criminal activity, not a prima facie showing.” Seltzer v.
State, 489 N.E.2d 939, 941 (Ind. 1986) (citing Brinegar v. U.S., 338 U.S. 160, 69
S. Ct. 1302, 93 L. Ed. 2d 1879 (1949)).
6
We acknowledge the perspective in Judge Bradford’s dissent but part ways in our analysis. The dissent
would not reach the question of probable cause before analyzing the good faith efforts of law enforcement in
assessing the admissibility of the evidence ultimately seized from the residence. The majority sees this
differently, reviewing probable cause for the issuance of the first warrant, while recognizing the considerable
and diligent efforts made by law enforcement in this investigation of the anonymous informant’s tip to them.
The evidence presented to the magistrate and the trial court, while sufficiently setting forth what
corroborating information was gathered, insufficiently established probable cause of criminal activity to
warrant further searches, beginning with the FLIR search.
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[21] Here, Detective Buckner conducted an independent investigation, verifying all
details provided by the tipster save for the smell of marijuana emanating from
the premises. McGrath, on the other hand, presented photographic evidence
that in the area in which he lives, it is not uncommon for houses to have both
central air conditioning and independent air conditioning units, due to the age
of the houses. McGrath further argued that it was not uncommon for people to
have coverings over their windows—drapes, blinds, or blankets—in lower
income areas, which he characterizes his as being, in college dorms, or when
residents are out of town. McGrath additionally argued that it is not
unreasonable for someone to use two diverse styles of light bulbs differing in
light strength, noting that many varieties can be purchased in home
improvement stores.
[22] McGrath challenges the adequacy of the police investigation supporting the
search of his house relying on Jaggers. In Jaggers, the anonymous tipster
provided law enforcement with information that: (1) he had personally seen
marijuana in and around Jaggers’ house on numerous occasions over the course
of several years, and most recently in the prior week; and, (2) Jaggers was
growing marijuana on two plots of land away from his residence. The caller
also provided a description of the house and the location of the offsite plots,
including approximately how many marijuana plants would be found there.
Following up on the tip, law enforcement officers verified the accuracy of the
caller’s description of the house and ascertained that a truck in the driveway of
the house was registered to Jaggers. The officer drove to each of the off-site
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plots and found marijuana growing there, with each plot easily accessible to the
public. After the search warrant for the house was granted, a substantial
quantity of marijuana and related paraphernalia was discovered.
[23] Jaggers was convicted in a bench trial and he appealed, presenting claims only
under the Fourth Amendment and Indiana Code section 35-33-5-2. On
transfer, the Supreme Court held that under Fourth Amendment analysis, “the
only factor cutting toward crediting the tip in this case was that the caller
claimed to have personally witnessed the criminal activity.” 687 N.E.2d at 183.
The caller, however, gave no information that would allow a neutral magistrate
to assess the credibility of the claimed observation. “The caller’s assertion of
personal knowledge carries little weight in light of the total lack of
corroboration of the claim and no basis for concluding that the caller was a
credible source.” Id. The Court concluded by stating, “[I]f any anonymous
caller’s allegation, uncorroborated by anything beyond public knowledge, could
justify a search, every citizen’s home would be fair game for a variety of
innocent and not so innocent intrusions.” Id. The same observation was made
under state statutory analysis, concluding that there must be something beyond
information in the public domain offered to support the credibility of the
anonymous source. Id. at 184.
[24] In addition to the discussion in Jaggers, we find persuasive the rationale
expressed in a decision from California in which a police officer sought a search
warrant for the use of a thermal imaging scanner to corroborate a tip received
from an anonymous informant. In People v. Gotfried, 131 Cal. Rptr. 2d 840 (Cal.
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Ct. App. 2003), the issuance of a search warrant for the use of thermal imaging
and whether there was sufficient evidence of probable cause to support the
warrant was considered as a matter of first impression. The application for the
warrant in Gotfried set forth the following:
Affiant is a Deputy Sheriff for the Monterey County Sheriff’s
Office and has been so employed since 1982. Since December,
1993, affiant has been assigned full-time to the County of
Monterey Marijuana Eradication Team which specifically targets
the detections, arrest and prosecution of marijuana growers.
Affiant has received formal training in the investigation of
narcotics violations, including special classes from the
Department of Justice, and Drug Enforcement Administration.
Affiant has also had extensive in-service training from the
Sheriff’s Office and veteran deputy sheriffs who have specialized
in narcotics law enforcement for many years. Affiant has
participated in the investigation, surveillance, arrest, and search
for contraband in numerous cases involving marijuana, cocaine,
and heroin. Affiant has assisted the Monterey County Sheriff’s
Office Special Enforcement Detail in the eradication of several
marijuana gardens and was a primary investigator in the
detection, arrest, and prosecution of a case involving a major
indoor marijuana garden of 492 plants.
Affiant has also read various written materials concerning
narcotic law violations, especially relating to the cultivation and
sales of marijuana. Affiant has further spoken with experts in the
field as well as drug users concerning the methods of operation of
marijuana growers and sellers and sellers of other illicit drugs.
Based on training and experience, affiant is thoroughly familiar
with the manner in which marijuana is grown, harvested,
packaged, sold and used. Through training and experience,
affiant is familiar with the appearance and odor of marijuana in
both its live and dried forms.
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Your affiant has had formal training in cannabis aerial
observation from the Department of Drug Enforcement
Administration and has observed 65 cannabis gardens resulting
in the seizure of 11,120 cannabis plants.
Your affiant has had formal training in Thermal Imagery from
the Department of Drug Enforcement Administration, and has
been the investigating officer in 8 investigations of indoor
marijuana cultivation cases involving the use of the Thermal
Imager. Your affiant has testified as an expert in the use of
the Thermal Imager in the detection of indoor marijuana
cultivation.
On 9-23-98 your affiant received the following information from
an anonymous informant. He/She stated that Frederic [sic ]
Gotfried was growing marijuana at his place of residence, that
being 70450 Chadwick, space # 21, Jolon Road, Lockwood in
the County of Monterey.
He/She told affiant Frederic [sic ] Gotfried has been growing
marijuana for 3 to 4 years in a room approximately 12 feet by 12
feet which is located to the rear of his trailer. Frederic [sic ]
Gotfried is growing 80 to 120 marijuana plants under four high
pressure lights.
He/She told affiant Frederic [sic ] Gotfried moved to the remote
area of Monterey County to keep from being detected by aerial
overflights with infrared cameras. He/She stated Frederic [sic ]
Gotfried diverted the electricity prior to the meter, in order to
keep the high usage of electricity from being detected. He/She
told affiant Frederic [sic ] Gotfried has been diverting electricity
for over 3 years.
He/She told affiant Frederic [sic ] Gotfried sells his marijuana for
$2,800 a pound to his clients in Santa Cruz.
He/She told affiant Frederic [sic ] Gotfried has been evicted from
the trailer park, and will be moving the marijuana cultivation
operation to another location. He/She stated Frederic [sic ]
Gotfried drives a Volvo with the California license number
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399VNR, and a Ford Bronco with the California license number
3LQG447.
9-23-98, 2200 hrs your affiant and Investigator Doug Dahmen
drove to vicinity of 70450 Chadwick, Jolon Road, Lockwood at
which time we were followed by a Ford Bronco with the
California license number 3LQG447 which drove to space # 21
and parked. While Investigator Doug Dahmen and affiant
driving [sic ] through the trailer park, the driver of the Bronco
confronted affiant and Investigator Doug Dahmen in front of
space # 21, and questioned us as to our business at the trailer
park. We explained we were [looking] for a friend, he told us the
subject we were looking for was no longer at the trailer park and
should leave due to the fact we were bothering the neighbors.
The driver matched the description given by the informant and
that in the DMV records.
Prior to departing the area Investigator Doug Dahmen saw a
Volvo with the California license plate number 399VNR parked
next to the trailer at space # 21.
Your Affiant checked the criminal history for Frederic [sic ]
Gotfried through the Monterey County Sheriff’s Department’s
record section and found no prior criminal convictions.
A driver’s license check of Frederic [sic ] Gotfried through the
Department of Motor Vehicles showed his address as being 2636
17th Avenue # 159 Santa Cruz, with the above two vehicles
registered to him at that address.
Your affiant knows from training and experience that people
who grow marijuana indoors, grow it in rotating cycles. Your
affiant believes that marijuana is still being grown, and or drying.
Your affiant knows from my training and experience that
growing marijuana indoors requires the use of artificial lighting,
and that the majority of indoor marijuana cultivators utilize 400
to 1,000 watt metal halide and/or high pressure sodium lighting
systems which produce a significant amount of heat. This heat is
then vented from thermal gaps in the structure or it heats up the
surface of the entire structure. Most indoor marijuana cultivators
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utilize heat venting systems to ventilate the heat away from the
grow room area. Heat ventilation systems are used to exhaust
excessive heat, which is damaging to growing marijuana plants.
Your affiant knows from training and experience
that thermal imaging devices can detect temperature differences
indicative of indoor marijuana cultivation in each of the above
described instances.
Declarant requests judicial authorization, as outlined in People v.
Deutsch (1996) 44 Cal. App. 4th 1224, 52 Cal. Rptr. 2d 366, for
the use of a thermal detection device to detect the differences in
the temperature of the heat emanating from the structures on the
above described property.
The thermal imaging device to be used is a passive, non-intrusive
system which detects differences in temperature of an object
being observed. This system does not send any beams or rays
into an area, nor does it enter any structure. The system only
detects differences in the surface temperatures of an object.
The use of this device for detecting indoor marijuana cultivation
is most effective in the early morning or late evening hours when
the surface temperature is minimally affected by solar heat
loading, and man-made heat sources will be highlighted by a
contrasting color with cooler surfaces.
It is therefore requested that the use of
the thermal imaging device be authorized between the hours of
10:00 PM. to 7:00 AM[.]
Similar thermal imaging devices have been used by public
agencies and private industry for other applications such as
locating missing persons in a forest, identifying heat inefficient
building insulation, detecting overloaded power lines, detecting
forest fire lines through smoke, and detecting hot spots in wild
fires.
Declarant does not request any entry be made into the structures
or property described above. Nothing will be seized from the
property. I request only that law enforcement be authorized to
utilize thermal imaging from outside the curtilage of the property
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to observe the surface temperature of the structures on the
property.
It is declarant’s belief, based on the above facts, and your
declarant’s training and experience, that the use of the thermal
imager at 70450 Chadwick, Jolon Road, Lockwood in the
County of Monterey, will assist in the investigation of the
violation of Section 11358 of the Health and Safety Code,
Cultivation of Marijuana.
131 Cal. Rptr. 2d at 841-43.
[25] Reversing, the court quoted People v. Johnson, 220 Cal. App. 3d 742, 749 (1990),
discussing what level of corroboration was sufficient for reliance on information
provided by an untested, anonymous, or unreliable informant. The court stated
as follows:
Because unverified information from an untested or unreliable
informant is ordinarily unreliable, it does not establish probable
cause unless it is “corroborated in essential respects by other
facts, sources or circumstances.” For corroboration to be
adequate, it must pertain to the alleged criminal activity;
accuracy of information regarding the suspect generally is
insufficient. Courts take a dim view of the significance of
“pedestrian facts” such as a suspect’s physical description, his
residence and his vehicles. However, the corroboration is
sufficient if police investigation has uncovered probative
indications of criminal activity along the lines suggested by the
informant. Even observations of seemingly innocent activity
provide sufficient corroboration if the anonymous tip casts the
activity in a suspicious light. “It is only where . . . neither the
veracity nor basis of knowledge of the informant is directly
established, the information is not so detailed as to be self-
verifying and there is no logistical or other reason verification
from other sources cannot be achieved, that the failure to
corroborate may be indicative that it was objectively
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unreasonable for the officer to believe in the existence of probable
cause.”
Gotfried, 131 Cal. Rptr. 2d at 845-46 (quoting, Johnson, 220 Cal. Rptr. 3d at
749).
[26] Indiana follows the same rationale in holding that “Although the anonymous
tip in this case provided the police with some information that was not readily
knowable by a member of the general public—i.e., the suspended driver’s
license—it lacked any information that would allow the police to corroborate
the caller’s claim that illegal activity was afoot.” Richardson v. State, 848 N.E.2d
1097, 1103 (Ind. Ct. App. 2006) (citing Sellmer v. State, 842 N.E.2d 358 (Ind.
2006), citing Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000) (observing that reasonable suspicion “requires that a tip be reliable in
its assertion of illegality, not just in its tendency to identify a determinate
person.”)).
[27] We recognize Detective Buckner’s extensive training and experience in the
investigation of illegal drug operations and the magistrate’s understandable
deference to that expertise. Such was also the case of the law enforcement
agents in People v. Gotfried. However impeccable the training and experience of
law enforcement officers in such matters, that training and experience cannot
provide a portion of the basis for, or the missing piece needed to establish,
probable cause for the issuance of the warrant authorizing the use of a thermal
imaging device.
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[28] In the present case, Detective Buckner did not corroborate information from the
anonymous tipster about criminal activity. The display of lightbulbs differing in
intensity or brightness is not criminal activity, nor is covering one’s windows.
Further, the use of additional air conditioning units is not criminal activity.
What was lacking was corroboration of the distinctive smell of marijuana
emanating from the house, which would have provided corroboration of the tip
that criminal activity likely was occurring at that location. In short, a
detective’s determination that there is a probability that evidence of criminal
activity will be found at a particular place based upon his or her training and
experience without evidence that corroborates a tip that criminal activity has
occurred or is occurring at a particular location, does not establish probable
cause for the issuance of a search warrant. The decision of the existence of
probable cause to issue the warrant lies in the hands of the magistrate or judicial
official entrusted with that determination.
[29] Clearly, there is a level of respect accorded those who have extensive training in
these kinds of investigations. However, there must be evidence of criminal
activity presented to the magistrate to establish probable cause to justify the
issuance of the warrant. We decide this appeal entirely cognizant of law
enforcement’s ultimate finding of a considerable, active, marijuana grow
operation, which is in violation of our state laws. Nevertheless, finding that the
evidence of probable cause to support a search utilizing a thermal imaging
scanner was lacking, we are constrained to reverse McGrath’s conviction.
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Conclusion
[30] In light of the foregoing, we reverse and remand the decision of the trial court.
[31] Reversed and remanded.
[32] Crone, J., concurs.
[33] Bradford, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017 Page 26 of 31
IN THE
COURT OF APPEALS OF INDIANA
Brandon McGrath,
Appellant-Defendant, Court of Appeals Case No.
49A04-1610-CR-2270
v.
State of Indiana,
Appellee-Plaintiff.
Bradford, Judge, dissenting.
[34] I respectfully disagree with the majority’s disposition of this case. Without
reaching the question of probable cause, I believe at the very least that the good
faith exception applies to render the evidence collected from McGrath’s
residence admissible. Consequently, I respectfully dissent.
[T]he 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. United States
v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d
677, 698 (1984); [Jaggers v. State, 667 N.E.2d 180, 184 (Ind.
1997)]. The good faith exception has been codified at Indiana
Code § 35-37-4-5(a), which provides that “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
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017 Page 27 of 31
unlawful if the evidence was obtained by a law enforcement
officer in good faith.”
….
The good faith exception cannot be so broadly construed as to
obliterate the exclusionary rule. Dolliver v. State, 598 N.E.2d 525,
529 (Ind. 1992). Accordingly, certain police conduct does not
qualify for this exception, including where: (1) the magistrate is
misled by information in the affidavit that the affiant either knew
was false or would have known was false except for his reckless
disregard for the truth, or (2) the warrant was based on an
affidavit so lacking in indicia of probable cause as to render belief
in its existence unreasonable. Jaggers, 687 N.E.2d at 184 (citing
Leon, 468 U.S. at 923, 104 S. Ct. at 3421, 82 L. Ed. 2d at 699);
[State v. Johnson, 669 N.E.2d 411, 412 (Ind. Ct. App. 1996), trans.
denied].
Newby v. State, 701 N.E.2d 593, 602-03 (Ind. Ct. App. 1998).
I. The FLIR Warrant
[35] Here, the record clearly supports the conclusion that the police acted in good
faith in executing the FLIR warrant. I acknowledge, as does the majority, the
extreme care exercised by law enforcement during the investigation in this case.
There is no suggestion that any information set forth by Detective Buckner in
his affidavit is false, much less that he knew it to be false or showed reckless
disregard for the truth. McGrath’s entire argument seems to be that Detective
Buckner’s affidavit was incomplete, and therefore apparently impermissibly
misleading, by failing to note that other houses in the area had both central and
auxiliary air-conditioning units and/or window coverings of some sort.
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[36] While it is true that “when there is a material omission of fact, this amounts to
deliberate, reckless, or grossly negligent conduct[,]” Hayworth v. State, 904
N.E.2d 684, 699 (Ind. Ct. App. 2009), McGrath has not established that any
omission was material. First and foremost, the fact that some of the things
Detective Buckner observed can have innocuous explanations does nothing to
undercut the fact that dark window coverings and additional air conditioning
units are, in fact, indications of illegal activity, which McGrath does not
dispute. Second, very few, if any, of the nearby houses’ windows appear to
have “dark coverings,” as on McGrath’s house. (Defendant’s Ex. D). Because
it may be inferred that Detective Buckner is referring to window coverings
intended to block all light, coverings that are not completely opaque are not
suspicious, and one would not expect Detective Buckner to mention them, even
if he had noticed them on other houses. Last, Detective Buckner was
responding to a report of possible illegal activity at one address; his failure to
examine the entire neighborhood for other houses with window coverings or
suspiciously excessive air conditioning did not show a reckless disregard for the
truth. The record does not support a conclusion that the magistrate was misled
by Detective Buckner by any alleged omissions. I would conclude that police
relied on the FLIR warrant in good faith.
II. The Second Warrant
[37] McGrath also contends that the warrant to search McGrath’s house, obtained
by Detective Buckner using the results of the FLIR inspection conducted by
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Detective Condon and Sergeant Andresen, was so lacking in indicia of probable
cause as to render belief in its existence unreasonable. McGrath specifically
argues that Detective Buckner’s affidavit is defective because it did not describe
Detective Condon’s qualifications or experience or the FLIR system in
sufficient detail. Detective Buckner averred in his application for the second
warrant that Detective Condon told him that, based on Detective Condon’s
experience and training, the heat signature from McGrath’s house was
consistent with a marijuana-growing operation. As a general proposition, it is
well-settled that “as long as participating officers seeking the issuance of a
search warrant collectively have probable cause, their individual knowledge can
be imputed to the officer signing the affidavit in support of the search warrant.”
Utley v. State, 589 N.E.2d 232, 236 (Ind. 1992). As such, there is nothing about
reliance on the expertise of fellow police officers that undercuts probable cause.
[38] McGrath points to no authority for the proposition that Detective Condon’s
experience and training should have been spelled out in detail, and I am aware
of none. Moreover, I believe that it is perfectly reasonable to infer that
“Detective Condon” is a fellow police officer of Detective Buckner, especially
in the context of the warrant application. Nor is there any authority requiring
the FLIR system’s operations to be described in detail, as McGrath argues
should have been done. In summary, because the second warrant is not so
lacking in indicia of probable cause as to render reliance on it unreasonable,
police relied on it in good faith. I would affirm the judgment of the trial court
Court of Appeals of Indiana | Opinion | 49A04-1610-CR-2270 | July 31, 2017 Page 30 of 31
on the basis that the good faith exclusion applies to the two warrants in this
case.7
7
Because I would decide the case based on the officers’ good-faith reliance on the search warrants, I would
not reach the question of whether the warrants were, in fact, supported by sufficient probable cause.
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