Carnes v. State
1985 Ind. App. LEXIS 2634, 480 N.E.2d 581 (1985)
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Rule of Law:
A search warrant affidavit based on a confidential informant's direct, personal observation of criminal activity within the preceding 72 hours provides sufficient probable cause because the observation is an underlying fact, not a mere conclusion, and the timeframe is not too remote to believe evidence of the crime remains present.
Facts:
- A confidential, credible, and reliable informant was personally inside the residence at 8242 South Collier Street in Indianapolis.
- While inside the residence, the informant observed marijuana being kept, used, and sold.
- This observation occurred within the 72-hour period prior to October 16, 1981.
- The residence was under the control of Michael 'Mick' Carnes and Leah Carnes.
- On October 16, 1981, police officers arrived at the residence to execute a search warrant.
- Leah Carnes was present on the living room couch when police entered.
- Michael Carnes arrived during the search and volunteered that there was marijuana in the refrigerator.
- A subsequent search of the couple's bedroom uncovered methaqualone pills and a small quantity of marijuana.
Procedural Posture:
- Police Officer Walton obtained a search warrant for the Carnes' residence from a magistrate.
- Michael and Leah Carnes were charged in an Indiana trial court with unlawful possession of marijuana and methaqualone.
- The Carneses filed a motion to suppress the controlled substances, arguing the search warrant was not supported by probable cause.
- The trial court denied the Carneses' motion to suppress the evidence.
- Following a trial, Michael and Leah Carnes were convicted on all counts.
- The Carneses (appellants) appealed their convictions to the Court of Appeals of Indiana, arguing the trial court erred in denying their motion to suppress.
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Issue:
Does a search warrant affidavit establish probable cause when it is based on a confidential informant's sworn statement that they personally observed marijuana being 'kept, used and sold' at a residence within the past 72 hours?
Opinions:
Majority - Shields, J.
Yes. A search warrant affidavit establishes probable cause when it relies on an informant's direct, personal observation of criminal activity made within a reasonably recent timeframe. The court reasoned that the informant's statement of personally observing marijuana being 'kept, used and sold' constitutes an attestation of underlying facts, not a mere conclusion. This distinguishes it from cases like Aguilar v. Texas, where the affidavit only stated that the officer had 'received reliable information' without providing the basis for the informant's knowledge. The underlying facts here allowed the magistrate to make an independent determination of probable cause. Furthermore, citing Tinnin v. State, the court held that a 72-hour period between the observation and the warrant application is not too remote in time, as it is reasonable to believe that contraband like marijuana would still be present in a home.
Analysis:
This decision clarifies the distinction between a conclusory allegation and a sufficient statement of underlying facts in a search warrant affidavit based on an informant's tip. It establishes that an informant's direct, personal observation of ongoing criminal conduct, even if described in general terms like 'kept, used and sold,' satisfies the requirement of providing factual basis. The ruling also provides a clear benchmark in Indiana law, affirming that a 72-hour delay is acceptable for drug-related tips concerning a residence, thereby offering guidance for future probable cause determinations based on timeliness.
