Jesse R. Bunnell v. State of Indiana ( 2020 )

FILED
Dec 18 2020, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dylan A. Vigh Curtis T. Hill, Jr.
Law Offices of Dylan A. Vigh, LLC Attorney General of Indiana
Indianapolis, Indiana Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse R. Bunnell, December 18, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-981
v. Interlocutory Appeal from the
Greene Superior Court
State of Indiana, The Honorable Dena A. Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1804-F6-83
Mathias, Judge.
[1] In this interlocutory appeal, Jesse Bunnell challenges the Greene Superior
Court’s summary denial of his motion to suppress evidence allegedly obtained
through an unlawful search and seizure of his home. On the unique facts of this
case, we find that the search-warrant affidavit failed to provide the warrant-
issuing judge with a substantial basis for its probable-cause determination.
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Because there was no probable cause to issue the warrant, the search of
Bunnell’s home was unlawful.
[2] We reverse.
Facts and Procedural History
[3] Jesse Bunnell rented a home where he lived with Amber Richardson and two
children. On the afternoon of April 11, 2018, Alexandria Odell called the
Greene County Sheriff’s Department to request a welfare check at Bunnell’s
home. Odell told police that her fiancé, Ivan Stetter—who was deployed
overseas at the time—was receiving text messages from Richardson indicating
that she had been battered by Bunnell inside the residence.1
[4] Deputy David Elmore responded, and upon arriving at the home, he noticed a
recreational vehicle (RV) and a jeep parked on the property. Deputy Elmore
approached the front door and knocked multiple times, but no one answered. He
then walked toward the back of the house. On the way, he noticed a cable
running from one of the home’s ground-level windows into the RV. He knocked
on the RV, but no one answered. Deputy Elmore then continued to the back of
the home where he noticed two doors: one on the ground level and one at the top
of exterior stairs. He first knocked on the ground-level door, but again, no one
answered. So, he proceeded up the exterior stairs to the other door.
1
Richardson is Stetter’s “child’s mother.” Appellant’s App. p. 25.
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[5] At the top of the stairs, Deputy Elmore made two observations. First, he
noticed “an exterior security camera with wires going into the home through
the door jam.” Appellant’s App. p. 16. Second, he observed “through [his]
training and experience the smell of raw Marijuana emitting from the door.” Id.
Meanwhile, Deputy Christopher Anderson had arrived to assist; he also
“advised through his training and experience [that] he smelled raw Marijuana .
. . emitting from the door at the top of the exterior stairs.” Id. Deputy Elmore
knocked on this door as well, but no one answered.
[6] After knocking on the home’s three doors, Deputy Elmore spoke with
Richardson over the phone and confirmed that she and the children were safe at
a domestic violence shelter. Deputy Elmore also advised dispatch that he was
applying for a search warrant “due to the odor of raw Marijuana coming from
the residence.” Id. at 26. That warrant sought authorization to search the home,
the RV, the jeep, and a detached garage for “any and all illegal substances and
paraphernalia associated with illegal substances.” Id. at 15–16.
[7] About eight minutes after submitting the search-warrant affidavit, a judge
signed off on the warrant but limited its scope to the house. Id. at 17–18. Inside,
officers found approximately nine pounds of marijuana, multiple marijuana
plants (in the basement), smoking pipes, syringes, and other drug paraphernalia.
Deputy Elmore subsequently applied for and was granted a search warrant for
the RV, where he found additional marijuana. As a result, the State charged
Bunnell with one count each of Level 6 felony dealing in marijuana, Level 6
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felony possession of marijuana, Level 6 felony maintaining a common
nuisance, and Class C misdemeanor possession of paraphernalia.
[8] Bunnell filed a motion to suppress the evidence recovered from the home and
RV alleging that the search and seizure violated both the Fourth Amendment to
the United States Constitution and Article 1, Section 11 of the Indiana
Constitution. More specifically, Bunnell made two claims: (1) the exterior
stairwell and upstairs door “were not the normal means of entry-or-exit to and
from” the home, and thus Deputy Elmore’s detection of marijuana “within this
area” constituted a warrantless search, id. at 36–39; and (2) the search warrant
was not supported by probable cause because there was no evidence that the
officers had “the requisite training and experience in detecting the odor of raw
marijuana emanating from a [h]ome,” id. at 39–42.
[9] After a hearing, the trial court summarily denied Bunnell’s motion. Burnell filed
a motion requesting the trial court to certify its denial for interlocutory appeal,
which the court granted. This court then accepted jurisdiction over the appeal.
Discussion and Decision
[10] Bunnell presents several arguments on appeal, one of which we find dispositive:
whether the initial search-warrant affidavit supplied the issuing judge with a
substantial basis for concluding there was probable cause to search his home.2
2
Because we find this argument dispositive, we do not address Bunnell’s other contentions.
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[11] Both the Fourth Amendment to the United States Constitution and Article 1,
Section 11 of the Indiana Constitution require search warrants based on
probable cause. U.S. Const. amend. IV; Ind. Const. art. 1, § 11. This
constitutional requirement is codified in Indiana Code section 35-33-5-2, which
specifies the information that must be included in an affidavit supporting a
search warrant. One requirement is that the affidavit set “forth the facts known
to the affiant through personal knowledge . . . constituting the probable cause.”
I.C. § 35-33-5-2(a)(3).3
[12] In deciding whether there is probable cause, “[t]he task of the issuing magistrate
is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). In reviewing that decision, our job is to
determine whether the affidavit provided the warrant-issuing judge with a
“substantial basis” for finding probable case. Id. at 238–39 (citation omitted).
And though we afford a probable-cause determination “great deference,” id. at
236, it “is not boundless,” United States v. Leon, 468 U.S. 897, 914 (1984). We
must ensure that the judge “perform his neutral and detached function and not
serve merely as a rubber stamp for the police.” Id. (cleaned up). A warrant
3
The State argues that Bunnell “has waived his claim that the deputies’ discovery of the raw marijuana smell
violated Article 1, Section 11 of the Indiana Constitution.” Appellee’s Br. at 20. We do not address this
argument because we resolve the case on whether the search-warrant affidavit provided the warrant-issuing
judge with a substantial basis for finding probable cause—the standard for applying Section 35-33-5-2. See
State v. Spillers, 847 N.E.2d 949, 953 & n.3 (Ind. 2006).
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issued without probable cause is invalid, and thus any subsequent search based
on the warrant is illegal. Heuring v. State, 140 N.E.3d 270, 273 (Ind. 2020).
Generally, under the exclusionary rule, any evidence obtained directly and
derivatively from the illegal search must be suppressed. Id.
[13] Here, Bunnell argues that the initial search-warrant affidavit failed to provide
the judge with a substantial basis for finding probable cause. More specifically,
he notes that “the only evidence that supports” probable cause is the deputies’
detection of the odor of raw marijuana, which was based on their “training and
experience.” Appellant’s Br. at 20–21. But because there is no information
about either deputies’ relevant training or experience in detecting the odor of
raw marijuana, Bunnell contends that the affidavit is insufficient to establish
probable cause. He thus asserts that the seized evidence pursuant to both the
initial search warrant and the subsequently issued warrant must be suppressed.
The State disagrees, maintaining that “the odor of raw marijuana with an
identifiable source justified the magistrate’s initial probable-cause
determination.” Appellee’s Br. at 13.4
4
The State argues in the alternative that, even if the warrant was issued without probable cause, suppression
is not required because the good-faith exception to the exclusionary rule applies. Appellee’s Br. at 22–23; see
I.C. § 35-37-4-5. Yet, as Bunnell points out, the State raised the exception’s applicability for the first time on
appeal: it did not file a memorandum in opposition to Bunnell’s motion to suppress, and it did not advance
an admissibility argument under the good-faith exception at the suppression hearing. Our supreme court has
held 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.” Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999). Thus, because the
State has raised the good-faith exception as a basis for admissibility for the first time on appeal, any argument
regarding the exception’s applicability is waived. Moore v. State, 872 N.E.2d 617, 621 n.2 (Ind. Ct. App. 2007)
(citing Merritt v. State, 803 N.E.2d 257, 261 (Ind. Ct. App. 2004)), trans. denied; see Darring v. State, 101 N.E.3d
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[14] On these unique facts and circumstances, we agree with Bunnell. To explain
why, we address a narrow issue of first impression: whether law enforcement’s
detection of the odor of marijuana based on unspecified “training and
experience” by itself provides a warrant-issuing judge with a substantial basis
for concluding that probable cause exists to search a home.
A. The odor of marijuana emanating from a residence may be sufficient by itself to
establish probable cause for issuing a search warrant.
[15] Over seventy years ago, the Supreme Court of the United States declared that
“the presence of odors” can establish probable cause to issue a search warrant if
two conditions are met: (1) the issuing judicial officer “finds the affiant qualified
to know the odor”; and (2) the odor “is one sufficiently distinctive to identify a
forbidden substance.” Johnson v. United States, 333 U.S. 10, 13 (1948).
[16] In the years since Johnson, this court has consistently held, beginning with State
v. Hawkins, 766 N.E.2d 749, 751–52 (Ind. Ct. App. 2002), trans. denied, that
when a trained and experienced police officer detects the distinctive odor of a
drug—such as raw or burnt marijuana—coming from a vehicle, the officer has
probable cause to search that vehicle. See Marcum v. State, 843 N.E.2d 546, 548
(Ind. Ct. App. 2006); see also Shorter v. State, 144 N.E.3d 829, 838–39 (Ind. Ct.
App. 2020) (detection of burnt synthetic drugs), trans. denied. Notably, however,
in each of those decisions law enforcement’s qualifications to detect the odor
263, 269 (Ind. Ct. App. 2018); United States v. Lara, 815 F.3d 605, 612–13 (9th Cir. 2016); United States v.
Wurie, 728 F.3d 1, 13–14 (1st Cir. 2013); United States v. Archibald, 589 F.3d 289, 301 n.12 (6th Cir. 2009).
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were either not contested, Hawkins, 766 N.E.2d at 752, or were sufficiently
established, Marcum, 843 N.E.2d at 548; Shorter, 144 N.E.3d at 839. The same
was not true in State v. Holley, 899 N.E.2d 31 (Ind. Ct. App. 2008), trans. denied.
[17] In Holley, officers pulled over a vehicle and subsequently searched it after
detecting “the smell of raw marijuana emanating” from the occupants. Id. at 32.
The trial court granted Holley’s pretrial motion to suppress the evidence seized
from the car. Id. at 33. On the State’s appeal, we noted that—unlike in Hawkins
or Marcum—“the qualifications of the officers” to detect the odor “were in
issue.” Id. at 35. And the lack of evidence for those qualifications was
dispositive: “While there was evidence that [the officer] had encountered
marijuana during the course of his duties, there was no evidence that he was
qualified to know its odor or able to distinguish its odor from that of other
substances.” Id. Thus, because the search was without probable cause, we
affirmed the trial court. Id.
[18] Yet, unlike the decisions cited above, this case involves probable cause to issue
a search warrant for a residence. While we acknowledge that a warrantless
search of a vehicle must be based on the same degree of probable cause that
would otherwise be sufficient to issue a search warrant for a residence, see
California v. Carney, 471 U.S. 386, 394 (1985), there are differences in who
makes the probable-cause determination and how that decision is later
reviewed, see, e.g., 2 Wayne R. LaFave, Search & Seizure § 3.1(d) (6th ed. 2020).
We thus find additional guidance from three Indiana cases that have addressed
law enforcement’s sense of smell and its impact on probable cause in this
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context: Johnson v. State, 32 N.E.3d 1173 (Ind. Ct. App. 2015), trans. denied;
Darring v. State, 101 N.E.3d 263 (Ind. Ct. App. 2018); and Ogburn v. State, 53
N.E.3d 464 (Ind. Ct. App. 2016), trans. denied.
[19] In Johnson and Darring, this court found that search-warrant affidavits, each of
which included information about law enforcement’s detection of the odor of
marijuana, established probable cause to issue a search warrant for a home.
Johnson, 32 N.E.3d at 1177–78; Darring, 101 N.E.3d at 269–70. Importantly,
however, the detection of marijuana in each case only supported the probable-
cause determination: the affidavits included additional evidence to establish
probable cause. For example, the affidavit in Johnson contained “information
that illegal drug activity was taking place” at the residence. 32 N.E.3d at 1177.
And in Darring, the affidavit indicated that officers found two marijuana plants
by the homeowner’s shed, and it also included incriminating information from
a neighbor. 101 N.E.3d at 266, 269–70. Further, the affiant–officer listed the
relevant training and experience of the law-enforcement officials who detected
the odor of marijuana. Id. at 266.
[20] In Ogburn, on the other hand, we held that an officer’s detection of the “odor of
burnt marijuana alone” did not establish probable cause to search an apartment
for evidence of dealing in controlled substances. 53 N.E.3d at 472–73. The
panel reached this conclusion after making three observations: (1) there was no
reported drug activity at the apartment; (2) no one had spoken with anyone at
the apartment who appeared under the influence of marijuana; and (3) the
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affiant–officer failed to explain why he believed the odor emanated from
Ogburn’s apartment, rather than a neighbor’s apartment. Id. at 473.
[21] Read together, these decisions demonstrate that, while law enforcement’s
detection of the odor of marijuana can provide sufficient probable cause for a
search, there is no per se rule giving police carte blanche authority to search—
with or without a warrant—based solely on the odor. Like in Johnson and
Darring, the odor coupled with other evidence may establish probable cause. Or
like in Holley and Ogburn, there may be circumstances that undermine the
otherwise strong inference of implied criminal activity—such as a lack of
information about law enforcement’s relevant training or experience in
identifying and distinguishing a particular odor, Holley, 899 N.E.2d at 35; see
Edwards v. State, 832 N.E.2d 1072, 1080 n.11 (Ind. Ct. App. 2005) (recognizing
that that detection of the smell of marijuana must be “by a trained and
experienced police officer” to “support probable cause”); cf. Neuhoff v. State, 708
N.E.2d 889, 891 (Ind. Ct. App. 1999) (finding that a drug-sniffing dog’s alert
“was sufficient in itself” to establish probable cause when the search-warrant
affidavit detailed the dog’s relevant qualifications, experience, and training);
Rios v. State, 762 N.E.2d 153, 159–60 (Ind. Ct. App. 2002) (same); Hoop v. State,
909 N.E.2d 463, 471 n.7 (Ind. Ct. App. 2009) (same), trans. denied. And this
lack of information is particularly concerning in cases where detection of an
odor is the only information in the affidavit “constituting probable cause.” I.C.
§ 35-33-5-2(c).
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[22] In short, we recognize that the smell of marijuana emanating from a residence,
when detected by law enforcement that is qualified to identify and distinguish
the odor, by itself can establish probable cause for issuance of a search warrant. 5
But when the smell of marijuana is the only evidence constituting probable
cause, the search-warrant affidavit—or information otherwise before the issuing
judge—must include some information regarding the detecting officers’ relevant
qualifications, experience, or training in identifying and distinguishing the
odor.6
[23] To conclude otherwise would sanction a categorical presumption that every
law-enforcement official is adequately trained in detecting and distinguishing
the smell of marijuana. But such a presumption would conflict with Johnson’s
mandate that a warrant-issuing judge find the “affiant qualified to know the
odor” to constitute probable cause, 333 U.S. at 13, which must “be decided
based on the facts of each case,” Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997).
While we are mindful that search warrants should not be invalidated by
5
Several decisions from other jurisdictions have reached a similar conclusion. See Commonwealth v. Barr, ---
A.3d ----, 2020 WL 5742680, at *7 (Pa. Sep. 25, 2020); State v. Hubbard, 430 P.3d 956, 969 (Kan. 2018);
Tingey v. State, 387 P.3d 1170, 1183 (Wyo. 2017); State v. Watts, 801 N.W.2d 845 (Iowa 2011) (collecting
cases); State v. Kazmierczak, 771 S.E.2d 473, 478–79 (Ga. Ct. App. 2015) (collecting cases); see also LaFave, §
3.6(b) (“It appears to be generally accepted that the smell of marijuana in its raw form or when burning is
sufficiently distinctive to come within the rule of the Johnson case.”).
6
We find support for this minimal requirement in decisions from this court, see Holley, 899 N.E.2d at 34–35;
Neuhoff, 708 N.E.2d at 891, as well as decisions from other jurisdictions, see Poolaw v. Marcantel, 565 F.3d 721,
732 & n.10 (10th Cir. 2009); Hervey v. Estes, 65 F.3d 784, 790 (9th Cir. 1995); United States v. Sweeney, 688
F.2d 1131, 1137–38 (7th Cir. 1982); United States v. Pond, 523 F.2d 210, 212–13 (2d Cir. 1975); Watts, 801
N.W.2d at 855; Davis v. State, 202 S.W.3d 149, 157 (Tex. Crim. App. 2006); State v. Moore, 734 N.E.2d 804,
808 (Ohio 2000); State v. Cole, 906 P.2d 925, 941 (Wash. 1995); Kazmierczak, 771 S.E.2d at 478; see also
LaFave, § 3.6(b).
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interpreting affidavits “in a hypertechnical, rather than a commonsense,
manner,” we must also “conscientiously review the sufficiency of affidavits on
which warrants are issued” to ensure probable cause is not “a mere ratification
of the bare conclusions of others.” Gates, 462 U.S. at 236, 239. We believe our
holding today strikes the appropriate balance.
[24] With these principles in hand, we now turn to the search-warrant affidavit here
to determine whether it provided the issuing judge with a substantial basis for
concluding that there was probable cause to search Bunnell’s home.
B. The affidavit does not demonstrate that the officers were qualified to identify and
distinguish the odor of raw marijuana.
[25] As noted above, a search-warrant affidavit must set “forth the facts known to
the affiant through personal knowledge . . . constituting the probable cause.”
I.C. § 35-33-5-2(c). The purpose of this requirement is “to keep the state out of
constitutionally protected areas until it has reason to believe that a specific
crime has been or is being committed.” Berger v. New York, 388 U.S. 41, 59
(1967).
[26] Here, the initial search warrant authorized law enforcement to search Bunnell’s
residence for “any and all illegal substances and paraphernalia associated with
illegal substances.” Appellant’s App. p. 15. To establish probable cause that
“illegal substances” would be found in Bunnell’s home, Deputy Elmore’s
affidavit included the following facts:
I am a Deputy with the Greene County Sheriff’s Department.
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….
I [] observed through my training and experience the smell of raw
Marijuana emitting from the [second-floor exterior] door.
Deputy Christopher Anderson arrived on scene to assist me and
advised through his training and experience he smelled raw
Marijuana as well emitting from the door at the top of the
exterior stairs.
Id. at 15–16.
[27] Thus, probable cause to search Bunnell’s home must be established solely by
the deputies’ detection of the odor. 7 But the affidavit does not include any
information regarding the deputies’ relevant qualifications, experience, or
training that demonstrates either deputy can identify or distinguish the smell of
raw marijuana.8 There is no information on how long either deputy had been in
law enforcement. There is no information on either deputy’s involvement in
investigating marijuana offenses or in making marijuana-related arrests. And
there is no information about specialized training that either deputy had
7
Deputy Elmore also noted that, at the top of the stairs, he “observed an exterior security camera with wires
going into the home through the door jam.” Appellant’s App. p. 16. We agree with the State that the
presence of this camera “could support a reasonable inference that guests had used the backdoor in the past,”
Appellee’s Br. at 19; yet we find no basis—and the State does not argue—that the presence of a home-
security camera could also support a finding of probable cause that Bunnell’s home contained “illegal
substances.”
8
We acknowledge that, during the suppression hearing, the trial court heard information about the officers’
specific training and experience in detecting the odor of raw marijuana. Our inquiry, however, is focused on
whether the warrant-issuing judge had a substantial basis for concluding that probable cause existed—a
determination that is made based on the information presented at the time the warrant is issued. See, e.g.,
Heuring, 140 N.E.3d at 273 (citing Figert, 140 N.E.3d at 830); United States v. Rees, 957 F.3d 761, 765–66 (7th
Cir. 2020).
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undergone in detecting the odor of raw marijuana. Simply put, the search-
warrant affidavit is devoid of particular information or evidence from which the
warrant-issuing judge could find that either Deputy Elmore or Deputy
Anderson were “qualified to know the odor” of raw marijuana emanating from
the second-floor door of Bunnell’s residence. Johnson, 333 U.S. at 13; see United
States v. Ventresca, 380 U.S. 102, 108–09 (1965) (observing that probable cause
cannot “be made out by affidavits which are purely conclusory, stating only the
affiant’s . . . belief that probable cause exists without” providing detailed
circumstances on which the belief is based).
[28] We acknowledge that Deputy Elmore cites both his and Deputy Anderson’s
“training and experience” generally; and we give “due weight to inferences
drawn from . . . local law enforcement officers,” Ornelas v. United States, 517
U.S. 690, 699 (1996). See United States v. Floyd, 740 F.3d 22, 35 (1st Cir. 2014)
(recognizing that “a law enforcement officer’s training and experience may
yield insights that support a probable cause determination”) (emphasis added).
Yet, by not including any information about relevant training or experience—
and with no other incriminating evidence or information from which to draw a
reasonable inference of criminal activity—a judicial officer reviewing the
affidavit must resort to multiple inferences, resulting in a tenuous rather than a
substantial basis for finding probable cause. Indeed, if we were to conclude that
unspecified “training and experience” alone provides the requisite substantial
basis, we would be granting the three words talismanic qualities. See State v.
Benters, 766 S.E.2d 593, 603 (N.C. 2014) (finding an affidavit “insufficient to
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establish probable cause” when concluding otherwise would require “such a
heavy reliance upon officers’ training and experience”). And in doing so, we
would be abdicating our role to ensure that warrant-issuing judges do “not serve
merely as a rubber stamp for the police.” Ventresca, 380 U.S. at 109. This we
will not do.
[29] In sum, law enforcement’s detection of the odor of raw marijuana emanating
from Bunnell’s second-floor door is the affidavit’s sole basis for establish
probable cause to search the home. Yet, the affidavit does not include any
information about the deputies’ relevant qualifications, experience, or training
from which a warrant-issuing judicial officer could find either deputy qualified
to identify or distinguish the odor of raw marijuana. Thus, the affidavit failed to
provide the warrant-issuing judge with a substantial basis for its probable-cause
determination. Because there was no probable cause to issue the warrant, the
initial search of Bunnell’s home was illegal, and the exclusionary rule requires
suppression of the evidence seized. Further, “it was by exploitation of that
illegality” that law enforcement secured a search warrant for Bunnell’s RV.
Wong Sun v. United States, 371 U.S. 471, 488 (1963). As a result, that evidence
must also be suppressed. See id.
Conclusion
[30] When probable cause for a search warrant is premised solely on law
enforcement’s detection of the odor of raw marijuana, the assertion must be
based on more than personal belief: the affiant–officer must provide some
information about the detecting officers’ relevant “training” or “experience”
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that led to the ultimate conclusion. The search-warrant affidavit here failed to
include that information, and thus, the warrant-issuing judge did not have a
substantial basis for its probable-cause determination. The search warrant was
therefore invalid and the subsequent search illegal. As a result, the trial court
erred when it summarily denied Bunnell’s motion to suppress.
[31] Reversed.
Altice, J., and Weissmann, J., concur.
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