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FOR PUBLICATION
ATTORNEY FOR APPELLANT: STEVEN C. LITZ Monrovia, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
BREA RICE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

Nov 13 2009, 10:12 am

CLERK

No. 55A04-0902-CR-99

APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable Christopher Burnham, Judge Cause No. 55D02-0807-FD-261

November 13, 2009

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Brea Rice was charged with possession of marijuana, a Class A misdemeanor, and possession of methamphetamine, a Class D felony, after a search conducted in the course of executing an arrest warrant issued for receiving stolen property uncovered the drugs in her purse. Rice filed a motion to suppress, alleging there was no probable cause to support the issuance of the arrest warrant and the drugs, as fruits of an illegal arrest, should be suppressed. The trial court agreed the arrest warrant should not have been issued but found the police conduct was not "sufficiently deliberate [such] that exclusion can meaningfully deter it," and therefore denied Rices motion to suppress. Rice sought and received permission to pursue this interlocutory appeal, raising the sole issue of whether the trial court abused its discretion in applying the good faith exception to the exclusionary rule and denying her motion to suppress. Concluding the trial court did abuse its discretion because Indianas good faith exception does not apply under these circumstances, we reverse. Facts and Procedural History1 On June 24, 2008, Mooresville Police Department Officers Yarnell and Harris executed a search warrant at a home located on Harrison Street in Mooresville, Indiana. The search warrant had been issued for the purpose of searching for and seizing stolen property that was allegedly stored in the residence. Officers Yarnell and Harris did not find any of the stolen property for which they were looking at the residence, but they did observe a

We held oral argument on October 19, 2009, at Indiana State University in Terre Haute, Indiana. We thank the faculty and staff of the Political Science Department for organizing the event, the attorneys for their capable advocacy, and the students for their interest.

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motorcycle helmet on a shelf in the garage. The officers left without seizing any evidence, although they did take a photograph of the motorcycle helmet. Officer Yarnell later learned the motorcycle helmet had been reported stolen from a resident of Hamilton County. Officer Yarnell contacted the owner of the Harrison Street home, who informed him that Rice and Brian Nysewander rented the house and anything in the house or garage belonged to them. Officer Yarnell then filed an affidavit of probable cause requesting the issuance of arrest warrants for Rice and Nysewander on the charge of receiving stolen property. The affidavit provides in part: This probable cause is based upon the following facts and circumstances based upon my personal knowledge: On June 24, 2008 . . . I, Detective Brad A. Yarnell . . . served a search warrant on [ ] W. Harrison St. . . . Upon entering the residence photographs of items were taken by this officer. There was nothing in the residence was [sic] found to be stolen after a search by serial numbers. A photograph was taken of a black and gray motorcycle helmet that was on a shelf in the garage. . . . [T]his helmet matched the description of a helmet that was reported stolen by Craig Stebbins to the Hamilton County Sheriffs Department. *** The helmet was left in the residence . . . as it was not verified as stolen at the time of the execution of the search warrant. A new search warrant will be asked for to retrieve the stolen property. Craig Stebbins had also reported a dirt bike stolen to the Hamilton County Sheriffs Department and it was recovered in a storage unit located at [ ] S Park Drive, Mooresville, Morgan County, Indiana and returned to the owner. I made contact with Steve Edwards, who owns the property at [ ] W Harrison St and he stated that currently Brea Rice and Brian Nysewander rent the property and that anything inside the house and garage belong to them and are their property. *** Brea J. Rice did knowingly and intentionally receive and retain the property of another (motorcycle helmet belong[ing] to Craig Stebbins) that has been the subject of theft therefore committing Possession of Stolen Property.

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For the foregoing reasons, I have probable cause to believe that the Defendant(s) named herein committed the offense(s) stated hereinabove. Appellants Amended Appendix at 10-11.2 An information charging Rice with receiving stolen property was filed in Morgan Superior Court on July 2, 2008 and a warrant was issued for her arrest that same day. On July 9, 2008, Mooresville Police Department Officer Whitley drove by the Harrison Street house and saw Rice at the back door. Knowing of the outstanding arrest warrant, he pulled into the driveway and told Rice he had a warrant for her arrest. He transported her to the Mooresville Police Department for questioning. Upon arrival at the police department, Officer Whitley searched Rices purse incident to her arrest. He found two marijuana joints and a small amount of a substance that tested positive for methamphetamine. An information charging Rice with possession of methamphetamine and possession of marijuana was filed under a new cause number. The case in which she was charged with receiving stolen property was later dismissed without prejudice on the States motion. Rice filed a motion to suppress the drug evidence in the instant case. A hearing was held at which the parties offered argument but no testimony was taken. Rice also offered into evidence the chronological case summary and States motion to dismiss from the receiving stolen property case. The trial court subsequently entered an order denying the motion to suppress, finding, in relevant part:

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The affidavit made identical allegations against Nysewander.

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The Defendant cites the case of United States v. Leon, 468 U.S. 897 (1984) for the proposition that reliance on a defective warrant would be excusable so long as the warrant itself was not based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. at 923. In this case, the Defendant asserts that there was no probable cause to support the charge of Receiving Stolen Property in that the affidavit of Detective Yarnell: (1) failed to show that Brea Rice knowingly retained property of another; or (2) exerted any control over the [motorcycle helmet sitting on the shelf in a garage]; or (3) knew that the helmet was even stolen, or was even sitting on the shelf in the garage. In this case, the affidavit filed in support of the Information charging Brea Rice with Receiving Stolen Property was "lacking in indicia of probable cause" and rendered "official belief in its existence entirely unreasonable." The arrest warrant should not have been issued. But, this does not resolve the second part of the analysis of this motion. There is no evidence that Sergeant Whitley did anything wrong. He was in possession of accurate knowledge that an arrest warrant was outstanding for the arrest of Brea Rice upon the charge of Receiving Stolen Property. There is no evidence that he was doing anything other than carrying out his duties as a law enforcement officer in serving a felony arrest warrant upon Brea Rice. . . . [Lengthy quote from Herring v. United States, 129 S.Ct. 695 (2009).] In this case, the Court does not find that police conduct was sufficiently deliberate that exclusion can meaningfully deter it, nor does the Court find that such deterrence is worth the price paid by the justice system. The Court does agree with the Defendants argument that "constructive possession" is not often a foundationally-sound legal theory upon which charges should be pursued against an individual, and a "dragnet" approach to charging crimes is to be discouraged by the Court by declining to issue arrest warrants or search warrants based solely upon such theories, unsupported by logical facts. But, that does not mean that the officers conduct in this case rose to the level of deliberate, reckless or grossly negligent conduct

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