Divided court reverses drug convictions for lack of probable cause

Despite a search pursuant to warrants that led to the discovery of more than 60 pounds of marijuana in a man’s Indianapolis home, the man’s drug convictions will be overturned after a divided panel of the Indiana Court of Appeals determined there was a lack of probable cause to support the issuance of the warrants.

In April 2014, an anonymous CrimeStoppers tip alerted the Indianapolis Metropolitan Police Department to the presence of a possible active marijuana grow operation. IMPD Detective Sergeant Kerry Buckner performed surveillance on the house and noted that in addition to a central air conditioning system, the upstairs windows also had AC units and dark coverings, signs consistent with an indoor marijuana operation.

Additionally, Buckner observed a high-intensity glow of a light and determined, based on his prior training, that it came from the type of light used for indoor grows. Buckner then applied for a search warrant – based on his previous training, surveillance, and the tip – to use a thermal imaging detection system to detect the presence of heat consistent with an active indoor marijuana grow.

The Marion Superior Court granted the search warrant, and Detective Michael Condon and Sergeant Edwin Andersen observed a heat signature that was recognized as being consistent with an indoor marijuana grow operation. Based on that information, Buckner applied for a second warrant for the residence and property.

That warrant was also granted, and the subsequent search revealed “an elaborate, active, marijuana grow operation of 67.5 pounds of marijuana plants (180 individual plants) and over five pounds of marijuana leaves.” Brandon McGrath, who lived in the home, told officers he was unemployed, which is why he worked inside the house.

After he was charged with one count of dealing in marijuana and one count of possession of marijuana, both as Class D felonies, McGrath moved to suppress, challenging both search warrants under the federal and state constitutions for lack of probable cause. The trial court denied McGrath’s motion to suppress and admitted the evidence over his objection.

McGrath was then found guilty as charged, prompting his appeal in Brandon McGrath v. State of Indiana, 49A04-1610-CR-2270. A majority of the Indiana Court of Appeals reversed those convictions Monday, though Judge James Kirsch noted the officers took “extreme care…to adhere to proper procedures in conducting this investigation.”

However, there was insufficient evidence to corroborate the anonymous tip about ongoing criminal activity in McGrath’s home and to support the issuance of a search warrant, Kirsch wrote.  Specifically, McGrath presented evidence that it was not uncommon for homes in his neighborhood to have both central and independent AC units or to have coverings over their windows.

“What was lacking was corroboration of the distinctive smell of marijuana emanating from the house, which would have provided corroboration of the tip that criminal activity likely was occurring at that location,” Kirsch wrote. “In short, a detective’s determination that there is a probability that evidence of criminal activity will be found at a particular place based upon his or her training and experience without evidence that corroborates a tip…does not establish probable cause for the issuance of a search warrant.”

But in a separate dissenting opinion, Judge Cale Bradford wrote he believed the good-faith exception would apply in this case to render the evidence collected from McGrath’s home admissible. Specifically, there was no evidence that any information in Buckner’s affidavit is false or in reckless disregard for the truth, Bradford said, nor did McGrath establish that any omission of information was material.

Additionally, Bradford rejected the notion that Buckner’s application for the second warrant was lacking in indicia of probable cause. Thus, Bradford would have affirmed the trial court.