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McGrath v. State

Court of Appeals of Indiana

July 31, 2017

Brandon McGrath, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court. The Honorable Jose D. Salinas, Judge. Trial Court Cause No. 49G14-1404-FD-21182

          ATTORNEY FOR APPELLANT Brian J. Johnson Danville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Indiana Attorney General Jodi Kathryn Stein Laura R. Anderson Deputy Attorneys General Indianapolis, Indiana

          Kirsch, Judge.

         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.


         [¶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 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 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 aircraft[2] 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;
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 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 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 ...

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