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02/17/88 KENNETH CULVER v. STATE INDIANA

Filed. As Amended May 24 1988. : February 17, 1988.

KENNETH CULVER, APPELLANT,
v.
STATE OF INDIANA, APPELLEE.



Appeal from the Lake Superior Court, Criminal Division, The Honorable James L. Clement, Judge, Cause No. 4CR-184-1185-731

Miller, P.j., Shields, P.j. Concurs. Ratliff, C.j. Concurs With Separate Opinion With Which Shields, J. Concurs

Author: Miller

MILLER, P.J.

Kenneth Culver appeals from his December 9, 1986 conviction for unlawful dealing in a controlled substance, a Class B felony,[Footnote 1] for which he was given a ten-year sentence. Culver alleges the trial court erred when it overruled his motion to suppress evidence seized from his residence because the affidavit offered in support of the warrant failed to establish probable cause. We affirm.

FACTS

On November 12, 1985 an Affidavit for Search Warrant was filed in the Lake County Court by Officer James Lawson. His affidavit stated, in relevant part, that

"[Affiant] swears that he believes and has good cause to believe that the following particularly described items:

1. Commando Mark 111 45 cal. sr#18489 rifle 1. Smith and Wesson revolver assorted narcotics, pills and capsules, and paranaphella [sic] are concealed in or about the following premises: 6517 Harrison st. Hammond, In. apt B corner house situated in the County of Lake, in said state and occupied by Kenneth Culver, and that said items are related to the following offense.

35-47-2-23 Sec. C convicted felon in Possession of a firearm 35-48-4-7 Possession of a controlled Substance

and that he believes and has good cause to believe

On 11-11-85 a confidential informant who has supplied reliable in the past related to this affiant that in the P.M. hrs. of 11-11-85 he saw, observed and handled a rifle to wit a Commando Mark 111 sr#18489 and in addition he saw the subject Kenneth Culver with a Smith and Wesson revolver, This subject Kenneth Culver is a convicted felon, The confidential informant further related Kenneth Culver is selling narcotics to wit Percodan pills and has a large supply in his apt. The personal observations of this affiant indicate that Kenneth Culver is in fact selling narcotics due to the high volume of persons entering the dwelling and leaving after a brief period of time."

(Record at 59).

Based on the affidavit, a search warrant was issued and a search of Culver's apartment was executed that same day. The police found substances which were later determined to be Phendimetrazine pills, marijuana, and one substance that contained amphetamine. As a result of the search Culver was arrested and charged with unlawful dealing in a controlled substance.

Before trial Culver filed a motion to suppress the evidence; but, after an evidentiary hearing, the Judge denied the motion. At trial Culver objected to the admission of the evidence, but his objection was overruled. Culver brings this appeal alleging his conviction should be vacated because it rests on evidence obtained under a search warrant that was not supported by probable cause, and consequently that the search violated the Fourth Amendment.[Footnote 2] He contends there were insufficient facts to support the credibility of the hearsay informant and to connect the items specified in the affidavit to his apartment. We will discuss these two issues together.

Discussion AND DECISION

To demonstrate probable cause to search premises, an affidavit must provide a sufficient basis of fact to warrant a reasonably prudent person to believe that a search of those premises will reveal evidence of a crime. Woods v. State (1987), Ind.App., 514 N.E.2d 1277 (citing Carroll v. United States (1925), 267 U.S. 132, 162). An affidavit based on an informant's tip has been regarded as open to question since the tip is hearsay and is thus susceptible to concerns about perception and truthfulness. See, Spinelli v. United States (1969), 393 U.S. 410, 425 (concurring opinion). If the tip is to provide a basis for a finding of probable cause the magistrate must have substantial reason to believe the information is ...


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