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Filed: November 17, 1987.


APPEAL FROM THE MARION MUNICIPAL COURT, Cause No. B-485-4543, The Honorable John D. Downer, Judge.

Robertson, J. and Conover, J. Concur.

Author: Miller


Carl Derrick Woods appeals the trial court's judgment convicting him of possession of paraphernalia, a Class A Misdemeanor, fining him $29.00, and ordering costs amounting to $71.00. Woods alleges the trial court erred when it overruled his motion to suppress evidence seized from his residence. Woods contends the affidavit offered in support of the warrant failed to establish probable cause. We agree and reverse.[Footnote 1]


Lt. Frank Ingram, a police officer with the Indiana University-Purdue University at Indianapolis police, was engaged in a narcotics surveillance on Meridian Street on July 17, 1985. From a distance he observed Woods, then a fellow police officer, parking a car in front of Woods's residence. He noticed that Woods was wearing a blue surgical shirt, commonly known as a "scrub," that appeared to bear an ink marking identifying it as property belonging to a hospital supply company. Lt. Ingram reported his observation to Capt. Rogers of his department who said he had seen Woods wearing green scrubs at the police station the day before. Based on this information Lt. Ingram that same day filed a probable cause affidavit requesting a search of Woods's residence, and a search warrant was issued.

The officers who executed the search found two pairs of surgical scrubs in Woods's bedroom. (Record at 61). They also found a package of hand-rolled cigarettes, a pair of surgical hemostats, and a pair of forceps burned on the end.

On August 19, 1985, Woods was formally charged with violating the Indiana Uniform Substances Act, IND. CODE 35-48-4-11, and Possession of Paraphernalia, IND. CODE 35-48-4-11. Woods was not charged with theft or conversion of surgical scrubs. Before trial Woods filed a motion to suppress the evidence, but after a hearing, the court overruled the motion. At trial Woods objected to the admission of the evidence on the basis that the search of his residence was illegal. Woods moved for judgment on the evidence, but that motion also was overruled. The court found Woods guilty of Possession of Paraphernalia, but not guilty of Possession of Marijuana.


I. Probable Cause

The question presented -- whether the magistrate had probable cause to issue a search warrant -- concerns our fundamental right to protection from unreasonable searches and seizures as provided by our federal and state constitutions. The Fourth Amendment long ago established the minimum requirements to protect citizens from indiscriminate searches based on general warrants. Olmstead v. United States (1928), 277 U.S. 438. The Amendment provides the following guarantees:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. AMEND. IV.

Our Indiana Constitution contains almost identical language.[Footnote 2] These great documents set forth the minimum standards under which our laws are to be enforced in order that all citizens may be secure from unwarranted invasions of their persons and homes.

In Indiana, except as specifically provided, no warrant can be issued until a magistrate has an affidavit before him. IND. CODE 35-33-5-2, Section 2(a). The affidavit must contain the essential facts to establish probable cause. Id. ; Mann v. State (1979), 180 Ind. App. 510, 389 N.E.2d 352. Probable cause exists when the facts and circumstances within the officers' knowledge and of which they had reasonably reliable information are sufficient in themselves to warrant a reasonably prudent man to believe that a crime had been or is being committed, and that seizable property can be found at the place or on the person to be searched. Carroll v. United States (1925), 267 U.S. 132, 162. In other words, probable cause is a "reasonable ground for belief of guilt." Id. at 161 (quoting McCarthy v. DeArmit (1881), 99 Pa. 63). But a good faith belief is not enough. That faith must be grounded in facts which in the judgment of a court make the good faith belief reasonable. Id.

In reviewing an affidavit our court has found the quantity and nature of information necessary to determine probable cause is inextricably linked to each given set of facts. Mers v. State (1985), Ind.App., 482 N.E.2d 778 (Buchanan, C.J., Dissenting) (citing Layman v. State (1980), Ind.App., 407 N.E.2d 340). Our task is not to perform de novo review, Illinois v. Gates (1983), 462 U.S. 213, but to determine whether the affidavit provided a substantial basis of fact from which the magistrate could conclude that a search warrant would uncover evidence of wrongdoing. Id. (citing Jones v. United States (1960), 362 U.S. 257, 271). Although we must give deference to the magistrate where reasonable minds may differ whether an affidavit establishes probable cause, our deference may not be boundless. United States v. Leon (1984), 468 U.S. 897. We may not defer to a warrant based on an affidavit that does not provide sufficient information from which a magistrate could determine probable cause. His decision cannot merely give formal sanction to the bare Conclusions of others. Id.

In the case at hand our concern is whether the following affidavit, on its face, provided enough factual information to allow a detached and neutral magistrate to make a common-sense determination that probable cause existed to issue a search warrant. The affidavit stated:

LT. FRANK INGRAM, I.U.P.D., Indpls, Indiana swears or affirms that he believes and has good cause to believe - from my investigation I learned from reliable persons the following facts and attending circumstances that: on July 17, 1985, this affiant observed MR. CARL DARRICK WOODS, B/M/32, DOB 04/28/53, SSN 314-64-XXXX, who resides at 3630 N. Meridian St., Indianapolis, Indiana, Marion County, Apt. # 19 at the southeast corner of 37th Street and Meridian Street, enter into a white/red Chevrolet, ...

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