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Uncorroborated hearsay from a source whose credibility is itself unknown, standing alone, cannot support a finding of probable cause to issue a search warrant. Newby v. State, 701 N.E.2d 593, 598 (Ind. Ct. App. 1998). …
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The affidavit police offered to establish probable cause for issuance of the search warrant [for Buford’s home] alleged the Elkhart police
received a drug tip, from the Elkhart County Prosecutor’s Office, that [Buford’s friend Stewart] is selling drugs out of [Buford’s] residence. The drug tip advised that there are numerous vehicles pulling up at [the residence] for short periods of time, people exiting the vehicles and going into the house, and the same people leaving the residence shortly after entering.
The affidavit goes on to say the police conducted surveillance of the residence about three weeks later, and they saw Buford and Stewart there. “It was known to the Elkhart Police Drug Unit that” Buford had a warrant for driving while suspended and Stewart had a warrant for a probation violation. It says police went to the residence and could smell burnt marijuana coming from it. They entered the residence and saw marijuana on a table.
The affidavit states: “[t]he undersigned affiant swears upon his oath that he believes and has good cause to believe that: Certain evidence involved in the commission of the offenses of Dealing Marijuana and or other illegal substances exists [at Buford’s residence].” (emphasis added). The only allegation of “dealing” is the statement in paragraph three, which is based on the anonymous tip.
As noted above, an affidavit based on hearsay must either 1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished, or 2) contain information that establishes that the totality of the circumstances corroborates the hearsay. [Citations omitted.]
The affidavit asserting police would find evidence of “dealing” at Buford’s residence contained no information to satisfy the first requirement, nor did the totality of the circumstances corroborate the hearsay statement there was “dealing” at the residence. After the reference to the “tip” that Stewart was “selling drugs out of the residence,” the affidavit asserts the police saw Buford and Stewart at the residence; police smelled burnt marijuana when they approached the residence; and when Buford opened the door and they entered the house they saw marijuana7 on the table. As none of those circumstances corroborate a statement there was dealing at the house, the affidavit did not provide probable cause for the issuance of a search warrant.
[Footnote 7:] As the affidavit did not indicate how much marijuana the officers saw, that statement could not corroborate the tip that drugs were being sold out of the residence. The police testimony at trial was that the amount the officers saw was “small” and was described as “shake” – that is, “remnants of marijuana.” “So it’s not the actual bud itself, but it’s things that it can be small pieces of marijuana that come off the actual bud itself.” We decline to hold evidence of a “small” amount of “shake,” without more, can support an allegation of “dealing.”
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In the case before us, the totality of the circumstances did not corroborate a hearsay statement that there was “dealing” of drugs from Buford’s residence or that “a search at that address would yield fruits of the crime” of dealing. [Citation omitted.] We must accordingly reverse and remand for further proceedings.
Reversed and remanded.
Robb, J., and Mathias, J., concur.