Anthony J. Cooper v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION FILED
Sep 27 2017, 10:37 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony J. Cooper, September 27, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1702-CR-410
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1606-F2-13
Mathias, Judge
[1] After a jury trial in Allen Superior Court, Anthony J. Cooper (“Cooper”) was
convicted of one count of Level 2 felony dealing in cocaine or narcotic drug,
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one count of Level 6 felony maintaining a public nuisance, one count of Class
A misdemeanor possession of a controlled substance, and one count of Class B
misdemeanor possession of marijuana. The issue on appeal is whether the trial
court abused its discretion by admitting evidence obtained as the result of the
execution of a search warrant.
[2] We affirm.
Facts and Procedural History
[3] On May 11, 2016, Fort Wayne Police Detective George Nicklow (“Detective
Nicklow”) received information from a confidential informant (“CI”) that drugs
and weapons were located inside a residence at 1808 Warren Street. Detective
Nicklow had known and worked with this particular CI on several previous
occasions which had led to three or four felony arrests.
[4] After receiving the tip, Detective Nicklow reviewed the narcotics tip line and
discovered a concerned citizen’s call from March 23, 2016, relating to the
residence in question. The tip indicated that at 1808 Warren Street there was:
(1) constant activity at the home from people who did not live there, (2) brief
stays happening at all hours of the day and night, and (3) the presence of a gray
BMW SUV that the citizen believed was involved with drugs. Detective
Nicklow later spoke with the concerned citizen about the substance of the call
and verified that the same reported conduct was ongoing.
[5] In May 2016, Detective Nicklow and other officers began surveillance on 1808
Warren Street. The officers noticed that the gray BMW SUV mentioned by the
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concerned citizen’s call was often parked in front of or across from the
residence. By running a BMV check, Detective Nicklow verified that the vehicle
was owned by Cooper. During this time, Detective Nicklow also determined
that Phillip Tate (“Tate”) listed 1808 Warren Street as his address on his
driver’s license. Tate and Cooper were brothers, and during the period of
surveillance and investigation, Tate was incarcerated.
[6] On May 31, 2016, Detective Nicklow and other officers set up a 24-hour
recording device in the 1800 block of Warren Street. Over the next three days
Detective Nicklow noticed a specific pattern develop at the residence.
[7] Cooper’s BMW would drive up and park either in front of or across from 1808
Warren Street. Cooper would exit the vehicle and enter the residence. Soon
after, another person or persons would enter the house and exit approximately
one to three minutes later. Cooper would then leave the house, get back into his
BMW, and drive away. The exact same pattern repeated itself several times
each day, usually during the afternoon.
[8] On June 2, 2016, Fort Wayne Police Detective Jeffrey Ripley (“Detective
Ripley”) attempted a trash pull at the residence. Upon exiting his vehicle,
Detective Ripley noticed a faint odor of marijuana coming directly from 1808
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Warren Street. As Detective Ripley walked closer to the house, the odor
became more pronounced.1
[9] Based on the information from the CI, the tip from and discussion with the
concerned citizen, the surveillance and observations of the residence, and the
statements from Ripley, Detective Nicklow applied for and obtained a search
warrant for the residence on June 3, 2016.
[10] During execution of the search warrant, officers discovered: five firearms (two
of which were stolen), over 60 grams of cocaine, marijuana, alprazolam, scales,
rubber gloves, baking powder, a cutting agent, and mail addressed to Cooper. 2
[11] The State charged Cooper with four counts: Count I, Level 2 felony dealing in
cocaine or narcotic drug; Count II, Level 6 felony maintaining a common
nuisance; Count III, Class A misdemeanor possession of a controlled substance;
and Count IV, Class B misdemeanor possession of marijuana.
1
In a deposition a few weeks later, Detective Ripley stated that he was not sure if the odor came from the
residence or the SUV parked nearby. However, during Cooper’s motion to suppress hearing, Detective
Ripley explained the discrepancy. He clarified that he was 99% sure that the smell was emanating from the
home, but because of the 1% chance it could have been coming from the vehicle, he did not think it was fair
to say with absolute certainty that the scent was coming from 1808 Warren Street.
2
At the same time, a second team of officers conducted a traffic stop on Cooper because he was driving with
a suspended license. During the stop, officers discovered three separate bundles of cash in Cooper’s pockets
totaling $1,868.
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[12] Cooper filed a motion to suppress the evidence discovered during the execution
of the search warrant. On December 16, 2016, the trial court held a hearing on
the motion. The trial court denied Cooper’s motion to suppress
[13] A two-day jury trial commenced on January 11, 2017. Throughout trial,
Cooper raised a continuing objection to all evidence obtained as a result of the
search warrant. The jury found Cooper guilty on all four counts. On February
9, 2017, the trial court sentenced Cooper to an aggregate sentence of twenty-six
and one-half years. Cooper now appeals.
Discussion and Decision
[14] Cooper contends that the evidence the State obtained from the search of 1808
Warren Street is inadmissible. Specifically, he argues that the search warrant
lacked a substantial basis, and therefore, the search of the residence was
unlawful under the Fourth Amendment.3
[15] Cooper frames the issue as whether the court erred by denying his motion to
suppress. However, because he seeks review after a conviction, the issue is more
appropriately framed as whether the trial court properly admitted the evidence
at trial. Fry v. State, 25 N.E.3d 237, 243 (Ind. Ct. App. 2015), trans. denied. A
3
Cooper mentions Article 1, Section 11 of the Indiana Constitution, but he fails to provide an independent
analysis. Failure to make a cogent argument under Article 1, Section 11 constitutes waiver of the issue on
appeal. See Abel v. State, 773 N.E.2d 276, 278 n. 1 (Ind. 2002) (concluding state constitutional claim waived
where defendant presented no authority or independent analysis supporting separate standard under state
constitution); West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (citations omitted); Ind. Appellate Rule 46(A)(8).
Therefore, we analyze Cooper’s argument under the Fourth Amendment only.
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trial court has broad discretion in ruling on the admissibility of evidence and we
will only disturb its rulings where it is shown that the court abused its
discretion. Id. at 243–44. When reviewing a trial court’s ruling on the
admissibility of evidence resulting from an allegedly illegal search, we do not
reweigh the evidence, and we consider conflicting evidence most favorable to
trial court’s ruling. Cartwright v. State, 26 N.E.3d 663, 667 (Ind. Ct. App. 2015),
trans. denied.
[16] A valid search warrant must comply with the Fourth Amendment prohibition
against unreasonable searches and seizures and statutory law.4 The Fourth
Amendment requires probable cause for the issuance of a warrant. Rader v.
State, 932 N.E.2d 755, 758 (Ind. Ct. App. 2010), trans. denied. Probable cause is
a fluid concept based on the facts of each individual case and it requires only a
probability of criminal activity, and not a prima facie showing. Fry, 25 N.E.3d at
244. In determining whether an affidavit provided probable cause, any doubtful
cases should be resolved in favor of upholding the warrant. Bradley v. State, 4
N.E.3d 831, 840 (Ind. Ct. App. 2014), trans. denied.
[17] Our duty on review is to determine whether the issuing magistrate had a
substantial basis to issue the warrant. Fry, 25 N.E.3d at 244. The magistrate’s
task is to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit, there is a fair probability that
4
See Ind. Code § 35-33-5-2 (governs the information that must be included in an affidavit for a search
warrant).
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contraband or evidence of a crime will be found in a particular place. Bradley, 4
N.E.3d at 840 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also I.C. §
35-33-5-2(a); Walker v. State, 829 N.E.2d 591, 594 (Ind. Ct. App. 2005) (stating
that “Probable cause is established when a sufficient basis of fact exists to
permit a reasonably prudent person to believe that a search of those premises
will uncover evidence of a crime.”), trans. denied. Although we review whether
the issuing magistrate had a substantial basis de novo, we give significant
deference to the magistrate’s decision. Rader, 932 N.E.2d at 759. We consider
only the evidence presented to the issuing magistrate, and not any post hoc
justifications for the search. Id.
[18] Here, the question is whether probable cause existed to support the search
warrant issued for the residence at 1808 Warren Street.5 The search warrant
affidavit contains the following information from Detective Nicklow:
1. Detective Nicklow was contacted on May 11, 2016, by a CI about a
location where cocaine, heroin, and marijuana were allegedly being sold,
and where subjects inside had guns.
2. The CI identified the location as 1808 Warren St.
3. The CI had provided “proven, reliable information in the past that has
led to several felony arrests.”
5
At the hearing on the motion to suppress, the prosecutor argued that Cooper lacked standing to challenge
the search and seizure. Tr. Vol. II, pp. 35–36. This argument has merit based on the Supreme Court’s
decision in Minnesota v. Carter, 525 U.S. 83 (1998). In Carter, the Court held that “one who is merely present
with consent of the householder may not” claim the protection of the Fourth Amendment. Id. at 90. Cooper
did not live at 1808 Warren Street, and just as the defendants in Carter, he was “essentially present for a
business transaction and [] only in the home for a matter of hours.” Id. However, the State did not raise this
issue on appeal, and it is therefore waived. App. R. 46(A)(8)
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4. Detective Nicklow checked prior anonymous tips called into the Fort
Wayne Police Department and was advised a concerned citizen tip had
been called in on March 23, 2016, concerning 1808 Warren Street.
5. The concerned citizen stated that a large amount of traffic was going in
and out of the residence with subjects staying for small periods of time,
and a gray BMW was associated with the house.
6. Detective Nicklow observed the gray BMW SUV at the residence when
conducting surveillance and he verified through BMV records that the
vehicle was registered to Cooper.
7. Six particular examples of “quick stops that are consistent with street
level narcotics dealing” are described between May 31, 2016, and June 2,
2016.
8. On June 2, 2016, Detective Ripley, who was conducting surveillance on
the residence, observed “an overwhelming odor of raw marijuana
coming from 1808 Warren St.”
Mot. Supp. Ex. Vol., Defendant’s Ex. A.
[19] Prior to requesting the search warrant, Detective Nicklow spoke with the
concerned citizen and was able to learn that the activity leading to the original
call was still continuing at 1808 Warren Street. Further, Detective Nicklow was
able to corroborate the concerned citizen’s statements through investigation and
surveillance.
[20] Cooper cites to our decision in Newby v. State, 701 N.E.2d 593 (Ind. Ct. App.
1998), to argue that the tip from the CI and the concerned citizen are not
“useful or helpful” because credibility was not established. Appellant’s Br. at
21. In that case, detectives received information that a cocaine buy was going to
take place in a grocery store lot. Newby, 701 N.E.2d at 596. During the
investigation, law enforcement officers obtained consent to search Steve
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Calloway’s (“Calloway”) car and found drugs in the console. Id. Sergeant
Wilkerson asked Calloway from whom he had purchased the drugs. Id.
Although initially reluctant, after cajoling by the detectives, Calloway identified
Newby as his supplier. Id.
[21] The next morning detectives monitored a call between Calloway and Newby;
however, there was no mention of drugs or money. Id. Later that day, State
Trooper Guinn drove by Newby’s residence to verify Calloway’s description of
it and its location. Id. Thereafter, Trooper Guinn signed a search warrant
affidavit for Newby’s residence, and it was issued. Id. On interlocutory appeal,
we reversed Newby’s denial of his motion to suppress. Id. at 604.
[22] The primary issue with the warrant in Newby was that Calloway’s credibility
was not established by the facts in the affidavit for the search warrant. Id. at
601. We pointed out that “neither Sergeant Wilkerson nor Trooper Guinn
corroborated facts relayed to them by Calloway that connected Newby to illegal
activity.” Id. We distinguished Newby from our supreme court’s decision in
Houser v. State and explained, “in Houser . . . the police officers who sought the
search warrant conducted an independent investigation of the crime scene and
observed facts relayed to them by the informant.” Id. at 600 (citing Houser v.
State, 678 N.E.2d 95, 100 (Ind. 1997)).
[23] Similar to Houser, and unlike Newby, the affidavit here outlined sufficient facts
to support issuing the warrant. After Detective Nicklow received the tip from
the CI on May 11, 2016, he corroborated the CI’s information in several ways.
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First, Detective Nicklow checked the concerned tip line and identified a call
pertaining to 1808 Warren Street. Although the call was placed on March 23,
2016, Detective Nicklow met with the concerned citizen, and established that
the behavior at the residence which originally led to the call was ongoing. As
our courts have consistently noted, “the credibility of a concerned citizen is, as
a general rule, inherently more credible than that of a [] CI.” Scott v. State, 883
N.E.2d 147, 155 (Ind. Ct. App. 2008); see also State v. Renzulli, 958 N.E.2d 1143,
1147 (Ind. 2011); Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013);
Billingsley v. State, 980 N.E.2d 402, 409–10 (Ind. Ct. App. 2012), trans. denied.
[24] Second, Detective Nicklow conducted an investigation which determined that
the SUV described by the concerned citizen was owned by Cooper. Also,
surveillance was done on 1808 Warren Street where the patterns described by
both the CI and the concerned citizen were corroborated. See State v. Fridy, 842
N.E.2d 835, 840 (Ind. Ct. App. 2006) (holding that an affidavit for a search
warrant is sufficient when it contains information that establishes that the
totality of the circumstances corroborates statements from a confidential
informant).
[25] Third, Detective Ripley noticed a strong smell of marijuana coming from the
residence when he was attempting to conduct a trash pull within ten feet of the
front door. He testified, “I was facing the house, took a deep breath in through
my nose, I could smell what I know from training and experience as raw
marijuana.” Tr. Vol. II, p. 25; see Redden v. State, 850 N.E.2d 451, 462 (Ind. Ct.
App. 2006) (finding that a detective’s detection of a chemical odor combined
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with other observations provided a substantial basis for the search warrant of
the defendant’s home), trans. denied.
[26] The CI’s information, the concerned citizen’s information, and the independent
police investigation corroborating both the CI and concerned citizen is more
than enough to establish that probable cause existed for issuing the warrant. See
Scott, 883 N.E.2d at 155 (Ind. Ct. App. 2008) (holding a warrant was supported
by probable cause because the CI’s information was corroborated by a
confidential informant as well as additional police investigation.); see also
Cheever-Ortiz v. State, 825 N.E.2d 867, 873 (Ind. Ct. App. 2005) (holding an
anonymous tip along with corroboration by independent police work was
enough to support a search warrant being issued for a home). Therefore, the
trial court did not abuse its discretion when it admitted evidence over Cooper’s
objection at trial.6
6
Cooper cites five cases not previously mentioned after asserting, “suppression in this case is appropriate
where no reasonably prudent law enforcement officer could have harbored an objectively reasonable belief in
the existence of probable cause.” Appellant’s Br. at 22. However, each of the five cases are distinguished
from the case before us. In Doss v. State, 649 N.E.2d 1045, 1047–49 (Ind. Ct. App. 1995), the trial court found
the warrant was defective on its face and this court held that the good faith exception did not apply in part
because the officer did nothing to corroborate the CI’s statements. In Hirshey v. State, 852 N.E.2d 1008, 1013
(Ind. Ct. App. 2006), trans. denied, the only basis for reliability of the CI was that his statements were against
penal interest, however, we held this was not the case and therefore the warrant lacked probable cause. In
Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997), the information came from an anonymous tip, whose
credibility was entirely unknown. Also, the officer did nothing more than corroborate the assertion that the
defendant appeared to live where the informant told the officer, and that marijuana was being grown on two
plots of land miles from the defendant’s residence. Id. Rice v. State, 916 N.E.2d 296, 303-04 (Ind. Ct. App.
2009), trans. denied, was decided on Indiana Constitutional grounds. Further, the trial court determined that
no probable cause existed to support an underlying arrest warrant because there was no connection between
the defendant and the crime for which she was accused. Id. Finally, in Everroad v. State, 590 N.E.2d 567, 571
(Ind. 1992), reh’g denied, all factual allegations in the probable cause affidavit were based on hearsay and there
was no evidence of a credible source or any corroboration substantiating the hearsay statements.
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Conclusion
[27] For all of these reasons, we conclude that the trial court acted within its
discretion when it admitted evidence that the officers discovered while
executing the search warrant on 1808 Warren Street.
[28] Affirmed.
Kirsch, J., and Altice, J., concur.
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