Argued: November 9, 2017
from the Marion Superior Court 14, No. 49G14-1404-FD-21182
The Honorable Jose D. Salinas, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
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
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
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
and Procedural History
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.
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.
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.
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.
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
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.
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.
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 ...