POLICE / PROSECUTOR UPDATE - DECEMBER 1998
Anticipatory Search Warrant
Informant Not Reliable or Credible
The Court of Appeals recently decided a case regarding search
warrants. It illustrates the importance of being accurate and
candid when preparing an affidavit for a search warrant. The facts
reveal that a State Police Sergeant received information that
a cocaine delivery was to occur that night in the parking lot
of a specified grocery store. The Sergeant, along with other state
policemen, conducted surveillance of the lot. A vehicle was observed
entering the lot and parking. The officers approached the vehicle
and asked the driver to exit. A pat-down search of the driver
resulted in the discovery of cocaine. He was informed that it
would be in his best interest to consent to a search of the vehicle,
which he did. To avoid having the vehicle damaged during the search,
the driver told the Sergeant that there were drugs in the console.
Additional cocaine and some marijuana were found there.
Although initially reluctant, the driver eventually named his
source (the defendant) and agreed to act as an informant. He stated
that on the following day, he was to deliver $3,000 to the defendant
for the cocaine discovered in his vehicle. He also described the
defendant's residence and gave directions to reach it and told
the officers he had seen firearms there in the past. Based on
this information, the police decided to get a search warrant and
conduct a "controlled delivery" of the $3,000. The informant would
be wearing a wire, and the warrant would be executed when the
money changed hands. This plan was carried out, resulting in the
discovery of large amounts of drugs, cash, and firearms. The affidavit
for the search warrant was made by a State Trooper based on information
supplied by the informant and reported by the Sergeant.
The affidavit for search warrant was clearly based on hearsay.
The trooper seeking the warrant was reporting what the informant
had allegedly told the Sergeant. The credibility of the hearsay
informant is to be determined by examining the totality of the
The U.S. Supreme Court has held that uncorroborated hearsay from
a source whose credibility is itself unknown, standing alone,
cannot support a finding of probable cause to issue a search warrant.
The reliability of hearsay can be established in a number of ways,
including where: (1) the informant has given correct information
in the past; (2) independent police investigation corroborates
the informant's statements; (3) some basis for the informant's
knowledge is demonstrated; or (4) the informant predicts conduct
or activities by the suspect that are not ordinarily easily predicted.
The credibility of the informant's statements was not established
here. None of the statements made by the informant to police was
against penal interest, which would tend to support credibility.
The fact that the informant described the defendant's residence
and location was irrelevant. Anyone who knew where the defendant
lived could have reported those facts to the police.
However, of more importance was that information contained in
the affidavit was misleading. One paragraph implied that the Sergeant
had used the informant in the past when in fact he had not. The
informant was a stranger. This was critical in that it was the
only representation in the affidavit that went directly to the
informant's credibility. To quote the court: ". . .it is imperative
that judicial officers have complete information when deciding
whether there is probable cause to issue a search warrant. This
is particularly true when the decision is based upon hearsay and
the totality of the circumstances. 'Totality of the circumstances'
means just that, not information that has been selected with the
goal of making the judicial finding of probable cause more likely.
Nor does 'totality of the circumstances' allow the omission of
relevant information that could affect an independent judicial
"Here, law enforcement authorities recovered a motherlode of
contraband from the defendant's residence. Unfortunately, the
evidence was seized pursuant to an unlawful warrant and is inadmissible.
That is the price we must pay to assure that millions of law abiding
Indiana residents remain secure from unreasonable searches and
Newby v. State, ___ N.E.2d ___ (Ind. App. 10/30/98)
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.