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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEES: JENNIFER A. JOAS Joas & Stotts Madison, Indiana

FILED
Dec 31 2008, 9:21 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. CHARLES TUNGATE and WILLIAM REYNOLDS, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 39A01-0807-CR-341

APPEAL FROM THE JEFFERSON CIRCUIT COURT The Honorable Ted R. Todd, Judge Cause Nos. 39C01-0609-FA-86 39C01-0609-FA-88

December 31, 2008

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issue In this consolidated appeal1 involving several drug-related and theft charges, the trial court suppressed evidence seized from Charles Tungate and William Reynolds (the "Defendants") because the warrants authorizing the seizure of such evidence were not supported by probable cause. On appeal, the State raises the sole issue of whether the trial court properly concluded the warrants were not supported by probable cause. Concluding that there was probable cause to search some, but not all, of the areas described in the warrants, we affirm in part and reverse in part. We also address the proper standard of review to apply in cases such as this where the trial court suppresses evidence after a magistrate determined there was probable cause to issue a warrant. Facts and Procedural History On September 9, 2006, Indiana State Police Trooper Michael Caplinger received information from a colleague that Barry Lauber, an employee with the Rural Electric Membership Corporation, reported that one of his subordinates recently "discovered an unauthorized electric meter . . . while in the course of his duties inspecting the kilowatt usage on the authorized electric meter" servicing property in Jefferson County owned by Sheila Shirley. Appellants Appendix at 30. The colleague also told Trooper Caplinger that Lauber reported the unauthorized meter displayed the identification number "7030" and had been "retired from service in 1986 after having been disappeared [sic] from its installed location in

We initially entered an order denying the States motion to consolidate, but rescinded that order on November 24, 2008, on the grounds that it had been improvidently denied.
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Franklin County . . . ." Id. On September 11, 2006, Trooper Caplinger drove by the Shirley property and observed a white farmhouse, "a red dilapidated barn to the west of the [farmhouse,] and a white camper trailer sitting directly against the west side of the barn with no space in between and [] a light on in the camper." Id. at 31. The next day, Trooper Caplinger spoke with John Huffman, also an employee with Rural Electric, who had visited the Shirley property on September 7, 2006, in response to the earlier discovery by Laubers subordinate. During his visit, Huffman observed two active electric meters on the property. Huffman determined that one of them ran electricity to the farmhouse, while the other, which Huffman reported as displaying the identification number "7030," had an extension cord connected to it that ran into the barn. Id. at 32. Believing that his observations along with those of Huffman and Laubers subordinate constituted probable cause to search for evidence of electricity theft, on September 13, 2006, Trooper Caplinger prepared an affidavit containing the foregoing information and requesting entry into the barn and the camper trailer to search for the 7030 electric meter, as well as other "items used to facilitate the theft of services including junction boxes, extension cords, electric wire, breaker boxes, service breakers, and items being used to facilitate the delivery of electric current to operate appliances/equipment." Id. A magistrate granted Trooper Caplingers request the same day, and, later that afternoon, Trooper Caplinger and ten other troopers2 drove in a multi-vehicle caravan to the Shirley property to execute the warrant. Trooper Caplinger arrived at the Shirley property one to three minutes after several

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Trooper Caplingers report states that the group consisted of six troopers, three detectives, and a

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troopers had entered the farmhouse. According to the trial court, these troopers entered by "us[ing] a battering ram to knock down the front door." Id. at 64. Once inside, the troopers found Shirley and Reynolds and observed numerous firearms, drug paraphernalia, counterfeit currency, and materials and equipment used to manufacture methamphetamine. Around the time the troopers entered the farmhouse, other troopers assigned to secure the rest of the property found Tungate inside the white camper trailer. After the three had been detained, Caplinger and several others entered the barn and observed numerous firearms, a truck and a motorcycle with altered VIN numbers, and materials and equipment used to manufacture methamphetamine. The troopers also discovered a marijuana plant and methamphetaminerelated materials in the yard; materials and equipment used to manufacture methamphetamine in a "cave" that had been dug out along the bank of a nearby creek, Defendants Ex. B at 5859; and a tan camper next to the barn that Trooper Caplinger had not noticed during his September 11, 2006, drive-by of the property because it was not visible from the road. Approximately three hours after executing the warrant, Trooper Caplinger sought and received another warrant authorizing him to enter the farmhouse, barn, and tan camper and seize the evidence the troopers had already observed. Trooper Caplingers execution of the warrants yielded over 185 separately marked items of evidence. As for seizing evidence of electricity theft, after the Shirley property had been secured, a Rural Electric employee removed the electric meter that had been previously identified as displaying the number "7030." The employee determined, however, that this

sergeant. We will refer to the group generically as "troopers" for the sake of brevity.

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meter had not been stolen

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