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McGrath v. State

Supreme Court of Indiana

May 1, 2018

Brandon McGrath, Appellant (Defendant)
v.
State of Indiana, Appellee (Plaintiff)

          Argued: November 9, 2017

          Appeal from the Marion Superior Court 14, No. 49G14-1404-FD-21182 The Honorable Jose D. Salinas, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1610-CR-2270

          ATTORNEYS FOR APPELLANT Brian J. Johnson, Todd L. Sallee

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr., Indiana Attorney General, Laura R. Anderson, Ellen H. Meilaender, Deputy Attorneys General

          OPINION

          Massa, Justice

         After conducting an independent investigation to corroborate an anonymous tip of a potential marijuana grow operation at a private residence, police requested and received a warrant to conduct a thermal-imaging search of the home. Evidence led police to request a second warrant to search the physical premises, leading to the discovery of the alleged criminal activity and the arrest and conviction of Brandon McGrath for one count of dealing in marijuana and one count of marijuana possession, both Class D felonies. McGrath challenged both warrants for lack of probable cause-the first for failure to corroborate the tipster's allegation of criminal activity, and the second for relying on a fellow officer's hearsay observations of the thermal-imaging search.

         Because we find that, under the totality of the circumstances, probable cause supported both warrants, we affirm the trial court's decision to uphold the rulings of the issuing magistrates.

         Facts and Procedural History

         In April 2014, an anonymous tipster alerted the Indianapolis Metropolitan Police Department of a possible marijuana grow operation at a private residence located at 5926 North Crittenden Avenue. In addition to describing the color of the house and noting its street address, the informant identified the occupants by their first names: Brandon and Kelsey. The informant further reported a bright light visible from a window at night and that the odor of marijuana often emanated from the premises.

         Acting on this information, IMPD Detective Sergeant Kerry Buckner investigated the home, first verifying its color and address. While conducting daytime surveillance, the detective noted several windows with dark coverings and two air-conditioning units on the upper floor independent of the home's central air system. At night, the detective observed a "high intensity glow" emitting from an upstairs covered window. App. Vol. II p.16. He could not, however, corroborate the odor of marijuana. Finally, by searching police records and BMV databases, both unavailable to the public, Detective Buckner identified Kelsey Bigelow as the homeowner and Brandon McGrath as a resident.

         Having partially corroborated the informant's tips, Detective Buckner then requested a search warrant for a "forward looking infrared" (FLIR) device, an aircraft-mounted thermal imaging camera used "to detect the presence of a heat signature commensurate with an indoor marijuana growing operation." Id. at 17. In his probable-cause affidavit, Detective Buckner explained the thermal imaging process and outlined in detail the circumstances of the investigation, including the anonymous tip and the information gathered from his own surveillance. The affidavit further described the detective's training and experience in narcotics investigation, his experience with other officers "trained in the use of thermal image technology, " and the elaborate processes of marijuana cultivation and the methods by which suspects attempt to evade law enforcement detection of their operations. Id. at 14.

         Upon approval of the FLIR warrant, Detective Michael Condon and Sergeant Edwin Andresen executed the thermal-imaging search. During the inspection, Detective Condon reported an atypical heat signature emanating from the home. Armed with this supplemental evidence, Detective Buckner requested and received a second warrant to search the physical premises. In his sworn statement-which referenced the first affidavit and incorporated many of its details-Detective Buckner related Detective Condon's observations of the FLIR search as "consistent with the heat signature put off by lights used to grow marijuana indoors." Id. at 26. However, the second affidavit contained no information describing Detective Condon's training and experience.

         A search of the house revealed an extensive marijuana grow operation, resulting in the seizure of 180 individual plants, heat lamps, plant fertilizer, dehydrators, drying racks, and deodorizing machines. Police arrested McGrath and the State charged him with one count of dealing in marijuana and one count of marijuana possession, both Class D felonies.[1]

         At trial, McGrath moved to suppress the seized evidence, challenging the search warrants under the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. McGrath argued that both warrants lacked probable cause-the first for failure to establish the informant's credibility or corroborate the anonymous tip, and the second for relying on Detective Condon's hearsay observations of the FLIR search.

         The trial court denied the motion to suppress, admitted the seized evidence over McGrath's objection, and found McGrath guilty as charged. The court stayed McGrath's sentencing pending appeal.

         A divided Court of Appeals reversed McGrath's conviction, finding the first search warrant lacked probable cause due to insufficient evidence corroborating the informant's allegation of criminal activity. McGrath v. State, 81 N.E.3d 655, 668-69 (Ind.Ct.App. 2017), vacated. The majority concluded that the detective's training and experience, "[h]owever impeccable, " was insufficient to convert the innocuous circumstances he observed-the window coverings, the A/C units, and the distinct lighting-into objective factors establishing probable cause of criminal activity. Id. at 668. The dissent, without reaching the ...


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