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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: JOHN PINNOW Greenwood, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-0606-CR-287

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge Cause No. 49G03-0511-FC-194605

December 27, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary John McDowell appeals his convictions for robbery, a class C felony, possession of paraphernalia, a class A misdemeanor, and the determination that he is a habitual offender. We affirm. Issue We restate the issue as whether the trial court abused its discretion in admitting evidence recovered from McDowell's hotel room. Facts and Procedural History On the evening of November 9, 2005, McDowell entered the lobby of the Extended Stay Hotel in Indianapolis wearing a white cloth across the lower portion of his face. He told the clerk, Sanela Keric, "Give me the money." Tr. at 53. Keric handed McDowell the cash drawer, from which he grabbed all the bills, totaling $155. McDowell thanked her and left. Keric called 911 and described McDowell as wearing a white shirt and grey sweatpants and having blue eyes and a clean-shaven head. Officer Anthony Patz was the first to respond. After speaking to Keric, he broadcast the suspect's description and searched the parking area surrounding the Extended Stay Hotel. Just east of the hotel entrance, Officer Patz noticed a white pillowcase lying in the bushes. Two eyeholes had been cut out, apparently as an attempt to create a makeshift mask. Keric identified the pillowcase as the white cloth that McDowell had used to cover his face. In the meantime, officers began searching the area for a suspect matching McDowell's description and notifying nearby businesses of the incident. About forty-five minutes later, the bartender of the Free Spirit Lounge at the nearby Dollar Inn called 911 to report that a
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man matching the suspect's description had entered the bar. Officers responded and found McDowell sitting at the bar. After taking McDowell outside, they informed him that he was a suspect in a crime, to which McDowell said, "What, did someone steal something?" Id. at 158, 189. Officers brought Keric to the Dollar Inn parking lot to identify McDowell as the person who had taken the money. Officer Patz shined the squad car's spotlights and white lights on McDowell. Although the officers instructed him to stand straight and look ahead, McDowell looked from side-to-side and down to the ground, making it difficult to see his face. Keric confirmed that McDowell's clothes matched the robber's, but she was unable to make a positive identification. Keric returned with the officers to the Extended Stay Hotel, where she was shown the surveillance tape. While watching the video, Keric excitedly exclaimed, "Oh my God, that's him." Id. at 192, 218, 251. Keric insisted that the man who robbed her was the person she had been shown in the Dollar's Inn parking lot. She attributed her previous inability to make the identification to poor lighting and the fact that McDowell refused to look straight ahead. McDowell was arrested and placed in the back of Deputy Chad Melloh's car for questioning. Once finished, Deputy Melloh removed McDowell from his car and in doing so noticed a long, thin, metal tube with a scorched end resting on the floorboard. The tube had copper scrubbers in one end and appeared to be paraphernalia used to ingest crack cocaine. During the search of McDowell's person, officers located a hotel key for room 130 at the Dollar Inn, as well as $93 in cash. The Dollar Inn desk clerk showed Detective Kevin Kelly some of Dollar Inn's pillowcases, which contained the same manufacturer's tag and were
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almost identical in design to the one that had been found outside the Extended Stay Hotel. The Dollar Inn also confirmed that McDowell had checked in and paid $70.90 for two nights on November 8, 2005. Having concluded that McDowell was staying in room 130 at the Dollar Inn, Detective Kelly gave Detective Marc Sullivan information needed for preparation of a search warrant affidavit. Based on the affidavit, a magistrate issued a search warrant authorizing a search of room 130 of the Dollar Inn for a pillow without a pillowcase, a pillow with a pillowcase, U.S. currency, a cutting instrument, and identification in the name of John Wesley McDowell. Pursuant to the warrant, Detective Kelly searched room 130 of the Dollar Inn. The key taken from McDowell opened the door. Inside, a pillow was found that was missing a pillowcase. There was a piece of cloth, torn from the bottom of a chair and thrown in the wastebasket, which had two eyeholes poked out of it. Detective Kelly also located an identification card bearing McDowell's name and additional drug paraphernalia. On November 14, 2005, the State charged McDowell with robbery and possession of paraphernalia. On January 13, 2006, the State amended the information to include a habitual offender charge. On April 10, 2006, McDowell filed a motion to suppress, claiming that the search warrant affidavit lacked probable cause. The trial court denied the motion, and the case went before a jury. On April 11, 2006, McDowell was found guilty as charged. McDowell now appeals.

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Discussion and Decision McDowell argues that the trial court abused its discretion in admitting evidence seized from his hotel room. "The trial court has broad discretion in ruling on the admissibility of evidence." Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). We will only reverse upon a showing of an abuse of that discretion. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). "An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law." Id. In our review, we will not judge witnesses credibility or reweigh evidence, but will consider only the evidence most favorable to the court's ruling. Smith v. State, 780 N.E.2d 1214, 1216 (Ind. Ct. App. 2003). McDowell specifically contends that the search warrant affidavit lacked sufficient information to link him to room 130 of the Dollar Inn and that therefore the search violated his rights under the Fourth Amendment. 1 It is the responsibility of the magistrate issuing a search warrant to determine, based on all the circumstances set forth in the affidavit, whether there is a fair probability that the search of a particular place will lead to the discovery of contraband or evidence of a crime. Query v. State, 745 N.E.2d 769, 771 (Ind. 2001). As the reviewing court, we are required to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. Id. "Substantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. U.S. CONST. amend. IV.

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whether reasonable inferences drawn from the totality of the evidence support the determination." Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997). In our review, "we consider only the evidence presented to the issuing magistrate and may not consider post hoc justifications for the search." Query, 745 N.E.2d at 771. The principles of the Fourth Amendment's protections against unreasonable searches and seizures are codified in Indiana Code Section 35-33-5-2, which details the information to be included in a search warrant affidavit. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). The statute provides in pertinent part: [N]o warrant for search or arrest shall be issued until there is filed with the judge an affidavit: (1) particularly describing: (A) the house or place to be searched and the things to be searched for; or (B) particularly describing the person to be arrested; (2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that: (A) the things as are to be searched for are there concealed; or (B) the person to be arrested committed the offense; and (3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause. Ind. Code

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