Robb, J.
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… Officer Gregory Hosterman of the Evansville Police Department was dispatched to an apartment to investigate a report of a burglary. When Officer Hosterman [and backup officers] arrived, he … entered the residence, which appeared “ransacked.” [Record citations omitted throughout.] … The officers found no one inside but noticed an odor of burnt marijuana.
Officer Hosterman exited the residence and requested a crime scene detective to take photographs. Detective Todd Lincoln arrived shortly thereafter and began processing the scene. While photographing the interior of the residence, Detective Lincoln discovered two baggies of suspected narcotics inside a large, opaque vase. The vase did not appear to be damaged, but Detective Lincoln was curious about a metal rod protruding from it. Detective Lincoln stood directly over the vase to photograph the inside of it, using the zoom function on his camera. The photograph shows what appears to be two baggies at the bottom of the vase. After reviewing the photograph, Detective Lincoln zoomed in further and took another photograph. That photograph clearly shows two baggies—one containing multicolored pills and another containing a white powder.
Detective Lincoln exited the residence to inform Officer Hosterman of his discovery. Both officers re-entered the residence to look inside the vase. … Officer Hosterman then obtained a search warrant for the residence based upon the odor of burnt marijuana inside the residence and the baggies of suspected narcotics inside the vase. The search warrant authorized the police to search for [evidence of drug dealing including, inter alia, “[i]ndicia of occupancy, residency or ownership such as labels, identification cards, letters, or photographs”]. …
The police seized [the pills and powder from the vase, digital scales, five cell phones, paperwork with the names “Toddrick Ogburn” or “Patricia Rockmore,” and] a key fob for a vehicle. When an officer pressed a button on the key fob to determine if it belonged to a vehicle in the parking lot, a 2001 Chevrolet Tahoe parked approximately twenty-five feet from the building beeped. [A narcotics dog alerted on the vehicle, which was registered to Rockmore but also contained paperwork with Ogburn’s name; and police found over 40 pounds of bundled marijuana inside.] * * * Ogburn arrived sometime after the officers searched the Tahoe. According to the officers at the scene, he admitted the marijuana found in the Tahoe belonged to him.
Prior to trial, Ogburn filed a motion to suppress, which the trial court granted in part[, finding the first search justified by exigent but suppressing “any evidence first observed during the second entry into the home, including the alleged controlled substances found in the urn or vase.”] Ogburn filed a second motion to suppress, requesting the trial court also suppress the evidence seized from the Tahoe. The trial court denied the motion. Thereafter, [the trial court dismissed] Counts I, II, and IV … in light of its ruling suppressing the evidence found inside the vase.
A jury trial was held in August 2015. When the State offered the marijuana bundles into evidence, Ogburn objected, arguing the evidence was a product of the illegal search of the residence. The trial court affirmed its denial of Ogburn’s second motion to suppress and admitted the marijuana over Ogburn’s objection. … The jury found Ogburn guilty of possession of marijuana with intent to deliver as a Class C felony and not guilty of maintaining a common nuisance with respect to the Tahoe. The trial court entered judgment of conviction for possession of marijuana with intent to deliver …. This appeal followed.
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Officer Hosterman obtained a search warrant for the residence based on the odor of burnt marijuana he noticed during his first warrantless entry and the baggies of suspected narcotics he observed inside the vase during his second warrantless entry. * * * Ogburn does not dispute Officer Hosterman’s first entry into the residence was justified by exigent circumstances [and] * * * the State concedes the second entry was not justified by exigent circumstances[. But] the State … contends the odor of burnt marijuana alone, noted during Officer Hosterman’s first entry, established probable cause to search the residence.
We addressed a similar situation in Johnson [v. State], 32 N.E.3d 1173 [(Ind. Ct. App. 2015), trans. denied]. * * * Unlike the officers in Johnson, the officers in the present case had not received information that drug activity was taking place, nor spoken with any individuals who appeared to be under the influence of marijuana. Moreover, Officer Hosterman did not explain why he believed the odor originated from within Rockmore’s apartment, as opposed to a neighbor’s apartment. Although we have previously held the odor of burnt marijuana alone may constitute probable cause to search a vehicle, [citation omitted], we conclude the odor of marijuana here failed to provide a substantial basis for concluding a search of the apartment would uncover evidence of dealing in controlled substances, see Johnson, 32 N.E.3d at 1176-77. An odor of burnt marijuana alone would not establish probable cause to support the extensive search warrant issued in this case.
In addition, the seizure of the key fob clearly exceeded the scope of the search warrant. * * * The … warrant defines “[i]ndicia of occupancy, residency or ownership” as items such as “labels, identification cards, letters, or photographs” or “utility bills and/or rent receipts.” … Without this limitation, the officers could have seized virtually any item in the residence—because an examination of most, if not all, personal possessions would lead to evidence of who occupies a particular place. Because the key fob was not of the same character as “labels, identification cards, letters, or photographs” or “utility bills and/or rent receipts,” the officers exceeded the scope of the warrant by seizing it.
In short, the search of the residence conducted pursuant to the search warrant violated the Fourth Amendment because the second warrantless entry to photograph evidence was not justified by exigent circumstances, and the odor of marijuana noted during the first entry, without additional facts, fails to provide a substantial basis for concluding a search of the apartment would uncover evidence of dealing in controlled substances. But even if the odor of burnt marijuana alone would establish probable cause to support the search warrant issued for the apartment, the seizure of the key fob clearly exceeded the scope of the warrant. Either way, the piece of evidence that led the police to the Tahoe was obtained in violation of the Fourth Amendment.
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The police requested a K-9 unit to walk the perimeter of the Tahoe because that vehicle beeped when the police activated the key fob discovered inside the residence. … [T]he warrant for the Tahoe states the request for a K-9 unit was “predicated upon the information utilized to secure the first search warrant for [the residence] earlier that day.” Nonetheless, the State contends the trial court did not abuse its discretion by admitting the marijuana seized from the vehicle because the officers could have summoned a K-9 unit to walk around all the vehicles in the parking lot and could have obtained a warrant based on that information alone.
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… [T]he burden was on the State to show “the agents would have sought a warrant if they had not earlier entered the warehouse.” [Murray v. United States, 487 U.S. 533,] 543 [(1988)] (emphasis added).
The State contends “the officers could have summoned a dog to sniff the exteriors of vehicles in the parking lot and could have obtained a warrant based on that information alone,” but we have not located any evidence in the record suggesting the State would have conducted a canine sniff on every vehicle in the parking lot if they had not earlier searched the residence. As a result, the State has failed to meet its burden. The evidence seized from the Tahoe was derivatively gained as a result of information learned during an illegal search of the residence, and the independent source exception does not apply. Accordingly, the bundles of marijuana are poisoned fruit, and the trial court abused its discretion by admitting them.
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The trial court abused its discretion by admitting the bundles of marijuana obtained in violation of Ogburn’s Fourth Amendment rights. We therefore reverse and remand with instructions that Ogburn’s conviction be vacated.
Reversed and remanded.
Crone, J. and Altice, J., concur.