BOEHM, J.
Helton’s claim is that his counsel’s failure to file a motion to suppress was ineffective assistance of counsel. In order to prove prejudice stemming from ineffective assistance, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of his criminal proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. For purposes of this discussion, we assume without deciding that a suppression motion would have been granted. We therefore assume that the warrant affidavit was insufficient to establish probable cause, the items recovered from Helton’s home were the product of an unlawful search, and the seized evidence would have been inadmissible under the exclusionary rule. . . . This is not sufficient to establish ineffective assistance of counsel. A petitioner alleging ineffective assistance of counsel in overlooking a defense leading to a guilty plea must show a reasonable probability that, had the defense been raised, the petitioner would not have pleaded guilty and would have succeeded at trial. [Footnote omitted.] Segura v. State, 749 N.E.2d 496, 503 (Ind. 2001). For reasons explained below, Helton has failed to carry his burden of proof of a reasonable probability that he would have succeeded at trial if a motion to suppress had been made and sustained.
The State is not required to introduce the subject contraband to obtain a conviction for dealing or possession. See Clifton v. State, 499 N.E.2d 256, 258 (Ind. 1986); Carter v. State, 471 N.E.2d 1111, 1114 (Ind. 1984); Thorne v. State, 260 Ind. 70, 72-73, 292 N.E.2d 607, 609 (1973); Slettvet v. State, 258 Ind. 312, 316, 280 N.E.2d 806, 808 (1972). The identity and quantity of a controlled substance, and the defendant’s possession of or dealing in narcotics, may all be established through witness testimony and circumstantial evidence. Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind. 2005); Clifton, 499 N.E.2d at 258; Slettvet, 258 Ind. at 316, 280 N.E.2d at 808. The exclusion of the seized items in Helton’s case, therefore, would not have foreclosed prosecution and conviction based on other evidence.
The record in this post-conviction appeal provides no indication as to what other evidence, if any, had been or was expected to be introduced in Helton’s trial beyond the inventory obtained in the search of Helton’s home. A full day of Helton’s trial went forward before the trial was cut short by Helton’s guilty plea. The record of the trial was not introduced in the post-conviction hearing, and neither party indicated to the post-conviction court what other testimony or other evidence might be introduced against Helton. We have no pertinent discovery motions or witness lists, and no other materials that suggest what other evidence was involved in the case. The State claimed at Helton’s sentencing hearing that it had introduced approximately twenty exhibits on the first day of trial. The post-conviction court also stated in its findings of fact that the State had not yet offered the drugs obtained from Helton’s home. We might infer that the State had already introduced evidence against Helton that was not the product of the search, but on the sparse record before us, we simply do not know.
. . . . Helton bore the burden of proof at his post-conviction evidentiary hearing. It was thus incumbent on Helton-not the State-to show there was a reasonable probability of insufficient evidence if a suppression motion had been granted. Helton argues that without the seized contraband, “the odds of a better result at trial-indeed, the odds of the charges being dismissed prior to trial-would have been much better than negligible.” He gives us no evidence to establish this claim. Perhaps if the evidence seized from Helton’s home had been excluded, the chances of a better outcome would have been greater. But in the absence of any showing that the State’s other evidence would have been insufficient, we are unable to evaluate the likelihood of acquittal or dismissal, and Helton has not shown a reasonable probability, or any probability at all, that he would have prevailed at trial.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
RUCKER, J., concurs in result with separate opinion:
The majority correctly notes that “[t]he State is not required to introduce the subject contraband to obtain a conviction for dealing or possession.” . . . As an evidentiary matter this broad proposition is not terribly remarkable. . . . But once a motion to suppress the evidence has been granted things change rather dramatically. Indeed as a practical matter, for drug related offenses, once a motion to suppress the drugs has been granted, prosecution essentially ends. And although conceivably there could be “other evidence,” slip op. at 5, to support a conviction despite a successful motion to suppress, the “fruit of the poisonous tree” doctrine would certainly limit the volume and scope of such evidence. “When applied, the [fruit of the poisonous tree] doctrine operates to bar not only evidence directly obtained, but also evidence derivatively gained as a result of information learned or leads obtained during an unlawful search or seizure.” Adams v. State, 762 N.E.2d 737, 745 (Ind. 2002) (quoting State v. Farber, 677 N.E.2d 1111, 1114 (Ind. Ct. App. 1997)). Of course, the doctrine does not apply if the derivative evidence has an “independent source,” the discovery of the evidence is so “attenuated” as to dissipate the taint of police misconduct, or the challenged evidence would have been inevitably obtained by proper means. . . .In sum, the majority’s broad proposition does not necessarily support its conclusion that, “[t]he exclusion of the seized items in Helton’s case, therefore, would not have foreclosed prosecution and conviction based on other evidence.” Slip op. at 5.
Nonetheless because I agree that at his post-conviction hearing Helton failed to carry his burden of proving there was a reasonable probability of insufficient evidence if a suppression motion had been granted, I conclude the post-conviction court correctly denied Helton’s petition for relief. Therefore I concur in the result reached by the majority.