MARSHALL v. STATE (2025)

MEMORANDUM DECISION

[1] Haley Marshall has filed an interlocutory appeal challenging the Hendricks Circuit Court's denial of her motion to suppress evidence found when the Danville Police Department executed a search warrant at her leased residence. Marshall argues that the search warrant was not supported by probable cause and the affiant included false or misleading facts in the probable cause affidavit. Concluding that the search warrant was supported by probable cause, we affirm.

Facts and Procedural History 1

[2] On primary election day, May 2, 2023, a concerned citizen placed a 911 call to report that a woman wearing an ankle bracelet was at the Hendricks County Government Center, and the woman was either running from something or on something. The woman had no shoes on and was wearing only one sock. Officer Javie Settlemoir and Sergeant Shawn Rout responded to the 911 call.

[3] The officers located the woman in question in a vestibule of the government center. When asked, she identified herself as Tiffany Venis, told Officer Settlemoir she was from Lebanon, and gave the officer her birthday. Venis's eyes were dilated, she was upset, and she acted scared. Officer Settlemoir suspected that Venis had taken methamphetamine, and, when asked, Venis confirmed that she had done so. However, Venis was confused about when she had last ingested methamphetamine. Sergeant Rout also spoke to Venis briefly but mostly observed Settlemoir's interactions with Venis.

[4] When Officer Settlemoir asked Venis where she had been staying in Danville, Venis pointed in the direction of the opposite side of the government center and stated the house was white but she could not provide an address. Venis indicated that she had used drugs inside the house with other individuals. Officer Settlemoir called EMS and asked the paramedic to assess Venis's medical condition. After EMS did an initial assessment, the officer asked Venis if she could show him where the house was located.

[5] As they walked the length of the government center, Officer Settlemoir found Venis's shoes and sock on the strip of grass between the building and the sidewalk. As they continued walking, the officer asked Venis to point out the house, and she pointed towards the white house across the street. She then specifically said the white house with the sofa. Ex. Vol., Ex. B.

[6] EMS transported Venis to the local hospital. Officer Settlemoir and Sergeant Rout walked up to the white house located at 397 South Indiana Street. Officer Settlemoir knocked on the front door but received no response. The officers walked along the sidewalk toward the back of the house. At the back of the house on the opposite side from the front porch, a truck and a sedan were parked near an unattached garage. There was also a trailer parked in front of the unattached garage. As the officers walked toward the trailer, they found Venis's purse lying next to it on a pathway leading to the garage from the road.

[7] Shortly thereafter, Officer Settlemoir proceeded to the emergency room where he interviewed Venis again. Venis's statements were consistent with those she gave at the government center. The officer reported the information he learned to the detective on-call, Nathaniel Lien. Approximately three hours after the 911 call, Detective Lien requested a search warrant for a residence and detached garage located at 397 South Indiana Street. The detective submitted the following probable cause affidavit in support of his request.

I, Detective Nate Lien with the Danville Metropolitan Police Department, in Hendricks County, State of Indiana, who, being first duly sworn upon his/her oath or having affirmed, states:

The facts in this affidavit come from my personal observations, my training and experience, and information obtained from other law enforcement officers and witnesses. This affidavit is intended to show merely that there is probable cause for the requested warrant and does not set forth all of my knowledge of this matter.

At approximately 8:55 AM on 5/2/2023, Officers with the Danville Metropolitan Police Department were dispatched to the Hendricks County Government Center in reference to a welfare check on a female. The initial caller advised that a female was on the west side of the property and may be under the influence of illicit narcotics.

Officers quickly arrived on scene and spoke with the female and several bystanders who were in the area due to the ongoing government elections at the facility. The group of bystanders advised Sergeant Shawn Rout that they were quickly approached by a frantic white female, who was later identified as Tiffany Nicole Venis [date of birth omitted]. They advised that before being approached, they watched the female running towards them, with one sock on, and one sock off, wearing no jacket, and she appeared to be under the influence of something. They brought the female inside the Government Center and attempted to speak with her, but she was hard to understand. The bystanders then called 911 for assistance, and stayed with the female until officers and medical personnel arrived.

Sergeant Shawn Rout spoke with Mrs. Venis, and she told him that she left 397 South Indiana Street in Danville, which she pointed out to officers, and told them that she was afraid of the “guys” that were inside the home. She advised that she fled from the home and ran, and left her purse on the property. Officer Javie Settlemoir and Sergeant Shawn Rout went to the residence and knocked on the door, but received no answer. They found Mrs. Venis’[s] shoes scattered in the yard if [sic] the home, as if she had ran out of them in a panic. Officer Settlemoir went to the rear of the residence to knock on the door and located Mrs. Venis’[s] purse in the driveway of 397 South Indiana Street, next to a black enclosed box trailer.

They continued to attempt contact with anyone inside the home, however they received no answer. Sergeant Shawn Rout continued to watch the home, and Officer Javie Settlemoir followed Danville Medics to the hospital, where Mrs. Venis was taken for evaluation.

Officer Settlemoir followed up with Mrs. Venis at the Hendricks Regional Health Emergency Department and she confirmed that she had been at the 397 South Indiana Street address with multiple individuals, and confirmed to Officer Settlemoir that she was using drugs with them. She advised that at some point, she wanted to make a phone call, but the other individuals in the residence would not allow her to. She stated that she had her phone next to her, and one of the individuals thought she was making a call. The individual accused her of attempting to make the call and became agitated with her. She then fled the residence. Officer Settlemoir advised that Mrs. Venis also told him that she did not like to use intravenous drugs, however she showed him several injection sites on her arms and said that the individuals at the home had injected her anyways.

Based on the above information, I would request that probable cause be found for the search warrant of:

397 South Indiana Street, Danville, IN 46122—a light colored single family residence with a detached garage, to search for suspects involved in the use and possession of illicit narcotics, criminal confinement of Mrs. Venis, and any and all illicit substances, paraphernalia, or drug related materials inside the home.

Ex. Vol., pp. 3-4.

[8] The trial court issued the requested search warrant that day, and the officers executed the warrant early that afternoon. During their search of the residence, the officers found several bags containing white and/or brown powdery substances, paraphernalia, a safe containing a white crystalized substance, scales, several packages of pills, firearms, and ammunition. Id. at 10. One of the law enforcement officers contacted the owner of the residence who advised the officer that he had leased the home to Haley Marshall. During the search, the officers found several pieces of mail and a package addressed to Haley Marshall.

[9] On May 16, as a result of the evidence found during the search and the ensuing investigation, the State charged Marshall with Level 2 felony dealing in methamphetamine, Level 3 felony possession of methamphetamine, Level 6 felony possession of a controlled substance, Level 6 felony possession of a legend drug, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. Marshall was arrested the next day.

[10] On November 8, Marshall filed a motion to suppress evidence and requested a Franks hearing.² In her motion, Marshall argued that the search violated her rights under both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Specifically, she asserted that: 1) the probable cause affidavit failed to establish Venis's credibility or failed to contain information that established that the totality of the circumstances corroborated Venis's hearsay statements and, therefore, the affidavit lacked a substantial basis for the determination of probable cause to search 397 South Indiana Street; and 2) the good faith exception to the exclusionary rule did not apply because reliance on the affidavit was entirely unreasonable as it lacked the indicia of probable cause, and the issuing magistrate was misled by information that Detective Lien knew was false or would have known was false except for his reckless disregard of the truth. Appellant's App. Vol. 2, pp. 78-101.

[11] The trial court held hearings on the motion on February 21 and March 8, 2024. During the suppression hearing, Detective Lien agreed that the probable cause affidavit contained the following inaccurate or misleading information: 1) Venis never identified the house by its specific address, 2) Venis's shoes were not found in the yard of 397 South Indiana Street and her purse was not found in the driveway, and 3) the affidavit failed to list a third officer who provided information relied on in the affidavit. Tr. pp. 30-35. Marshall also argued that Detective Lien's statement that the affidavit was based in part on his personal observations was inaccurate.

[12] The trial court denied Marshall's motion on May 13. Appellant's App. Vol. 2, pp. 149-51. The court found that, although she was obviously intoxicated, Venis was able to “answer direct questions from the Officers.” Id. at 150. Venis pointed out a “particular white house” to the officers and told them she had used drugs there. Id. The court noted that her purse containing her cell phone was found on the property.³ Id. Ultimately, the court concluded that the “Probable Cause Affidavit stated with specificity the residence to be searched and the statements of Venis and others were rightly relied upon by Detective Lien.” Id. Thereafter, Marshall asked the trial court to certify its order for interlocutory appeal. The trial court granted Marshall's request, and our court granted Marshall permission to file an interlocutory appeal. Our court assumed jurisdiction over this issue on July 19.

Standard of Review

[13] Our standard for reviewing the denial of a motion to suppress is well settled. J.B. v. State, 868 N.E.2d 1197, 1199 (Ind. Ct. App. 2007). We do not reweigh the evidence and consider conflicting evidence most favorable to the ruling. Id. at 1200. We also consider any uncontested evidence favorable to the defendant. Id. Furthermore, we defer to the trial court's findings of fact unless they are clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). However, where the issue is the constitutionality of a search and seizure, a question of law is presented and must be reviewed de novo. Id.

Discussion and Decision

[14] Marshall challenges the probable cause affidavit supporting the search warrant in this case on two grounds. First, she claims that the affidavit contains false information and significant omissions, which misled the court that issued the warrant. She also claims that Detective Lien's affidavit did not provide probable cause to search the home at 397 South Indiana Street. We address each argument in turn.

False and Omitted Information

[15] During the Franks hearing, Marshall established that Detective Lien's affidavit contained false or misleading statements. First, Venis never explicitly provided the address for the house, contrary to the implication in the affidavit. However, she did lead the officers to the house and pointed to the house where she used methamphetamine. The officers provided the address for that house to Detective Lien, who included the address in the affidavit.

[16] Next, Venis's shoes were not found “scattered in the yard if [sic] the home ․” Ex. Vol., p. 3. They were found in the grassy area between the sidewalk and the government center building.⁴ And finally, Venis's purse was found on a pathway leading to the unattached garage from the road. Id. Although the detective's use of the term “driveway” to describe where the purse was found was a generous description of the area, the purse was unquestionably found on the property of the residence.

[17] Although Marshall established that some of the challenged statements were misleading or inaccurate, the statements are only meaningful to our analysis if the remainder of the affidavit is insufficient to establish probable cause. See Keeylen v. State, 14 N.E.3d 865, 872 (Ind. Ct. App. 2014) (explaining that the United States Supreme Court has held that, “[i]f an allegation of perjury or reckless disregard is established by the defendant, and the rest of the affidavit is insufficient to establish probable cause, ‘the search warrant must be voided’ and any evidence obtained from its fruits excluded.”) (quoting Franks v. Delaware, 438 U.S. 154, 156 (1978)), clarified on reh'g, 21 N.E.3d 840, trans. denied. Therefore, we will not consider the inaccurate statements as we consider whether the affidavit established probable cause to search.

[18] Likewise, concerning the omitted information, “Franks protects only against omissions that are ‘designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’ ” Id. (citing United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). And the defendant must “show that probable cause would no longer exist if such omitted information were considered by the issuing judge.” Id. (citing United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997)); see also Sloan v. State, 224 N.E.3d 362, 368 (Ind. Ct. App. 2023) (citing Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007) (explaining that a probable cause affidavit must contain all material facts, even those which cast doubt on the existence of probable cause), trans. denied), trans. denied.

[19] On pages 41 to 43 of her Appellant's Brief, Marshall lists ten facts or items that she alleges should have been included in the probable cause affidavit but were not. Most of these revolve around Venis's level of intoxication, the officers’ characterizations of her mental state, and certain inconsistent statements she made to the officers during their investigation.

[20] Certainly, the affidavit could have contained additional information obtained by the officers to describe Venis's level of intoxication and when she last used methamphetamine. However, the affidavit contained sufficient facts establishing that Venis was significantly intoxicated. The affidavit includes the facts that the 911 caller believed Venis was under the influence of narcotics, Venis was hard to understand, and EMS took Venis to the emergency room. Her inconsistent statements concerned when she had last ingested methamphetamine, which she was still under the influence of, and how she had arrived at the house on Indiana Street.

[21] The omitted information may have given the issuing magistrate a more complete picture of the officers’ investigation, but Marshall has not established that the omitted information misled the magistrate. Given her level of intoxication, it is unsurprising that Venis was unable to recall specific details concerning when she last ingested methamphetamine or how and when she arrived at the home on Indiana Street. Failure to include these facts was not misleading.

[22] Finally, Marshall argues Detective Lien should have disclosed that, as the officers and Venis were walking toward South Indiana Street, Venis indicated that she had been staying at the gray house next door to 397 South Indiana Street. However, the body camera video established that Venis pointed in the direction of the white house, i.e., 397 South Indiana Street. Officer Settlemoir then asked whether she was pointing to the gray house. The officer was testing Venis's recall of which house she had used drugs at. Tr. Vol. 2, p. 73. Venis replied in the affirmative but then corrected herself. Ex. Vol., Ex. B. And, during the investigation, Venis repeatedly said she ran from a white house. For these reasons, we conclude that the issuing magistrate was not mislead because the discussion about the gray house was not included in the affidavit.

Probable Cause

[23] Turning to the question of whether the search warrant was supported by probable cause, we observe that the Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. To preserve that right, a judicial officer may issue a warrant only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. “Article 1, Section 11 of the Indiana Constitution contains language nearly identical to its federal counterpart.” McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018).

[24] The exclusionary rule prohibits the admission of evidence seized in violation of the Fourth Amendment. Reinhart v. State, 930 N.E.2d 42, 48 (Ind. Ct. App. 2010). Indiana also prohibits the admission of evidence seized in violation of Article 1, Section 11. Wright v. State, 108 N.E.3d 307, 313-14 (Ind. 2018). “[O]ur statutory law codifies these constitutional principles, setting forth the requisite information for an affidavit to establish probable cause.” McGrath, 95 N.E.3d at 527 (citing I.C. § 35-33-5-2).

[25] Probable cause is a fluid concept incapable of precise definition and is to be decided based on the facts of each case. Carter v. State, 105 N.E.3d 1121, 1127 (Ind. Ct. App. 2018), trans. denied. To determine whether a police officer's affidavit sets forth probable cause to issue a search warrant, the issuing magistrate must simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 1127-28. “Put differently, the central question in a probable cause determination is whether the affidavit presents facts, together with reasonable inferences, demonstrating a sufficient nexus between the suspected criminal activity and the specific place to be searched.” Id. at 1128.

[26] The reviewing court's duty is to determine whether the issuing magistrate had a “substantial basis” for concluding that probable cause existed. Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. A substantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the finding of probable cause. Id. A “reviewing court” for this purpose includes both the trial court ruling on a suppression motion and an appellate court reviewing that decision. Id. Although we review de novo the trial court's substantial-basis determination, we afford the magistrate's determination significant deference as we focus on whether reasonable inferences drawn from the totality of the evidence support that determination. Id.; see also Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017) (explaining that whether the facts favorable to the trial court's decision establish a constitutional violation is a question of law that we review de novo). “In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant.” State v. Stone, 151 N.E.3d 815, 818-19 (Ind. Ct. App. 2020) (quotations omitted), trans. denied.

[27] Finally, “[p]robable cause means a probability of criminal activity, not a prima facie showing.” Fry v. State, 25 N.E.3d 237, 244 (Ind. Ct. App. 2015), trans. denied. It “may be established by evidence that would not be admissible at trial.” Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). This includes hearsay statements. See Albrecht v. State, 185 N.E.3d 412, 420 (Ind. Ct. App. 2022).

The Totality of the Circumstances Corroborated Venis's Hearsay Statements

[28] A probable cause affidavit must particularly describe “the house or place to be searched and the things to be searched for[,]” allege “substantially the offense in relation thereto and that the affiant believes and has good cause to believe that ․ the things sought are concealed there[,]” and set “forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause.” Ind. Code § 35-33-5-2(a). When the affidavit is based on hearsay, it “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.” Ind. Code § 35-33-5-2(b).

[29] Relying on Illinois v. Gates, 462 U.S. 213 (1983), our Supreme Court has explained 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. [Gates, 462 U.S.] at 227. The hearsay must exhibit some hallmarks of reliability. Gates indicated that the trustworthiness of hearsay for purposes of proving probable cause 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 shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Depending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay.

Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997).

[30] Marshall argues there was nothing in the probable cause affidavit to establish whether Venis was credible or to establish the trustworthiness of her hearsay statements. In support of her arguments, Marshall directs our attention to Jaggers and State v. Mason, 829 N.E.2d 1010 (Ind. Ct. App. 2005). In both cases, our appellate courts concluded that the search warrants lacked probable cause because the law enforcement officers failed to corroborate the claims that the defendants were engaged in criminal activity. But, in those cases, anonymous informants provided the reports of the defendants’ alleged criminal activities, and, therefore, it was impossible to establish the informants’ credibility. Jaggers, 687 N.E.2d at 182; Mason 829 N.E.2d at 1017.

[31] Venis was not anonymous. Venis identified herself to the officers and gave her birthdate. She also gave the officers her mother's name and phone number and admitted to participating in illegal activity. Venis was significantly intoxicated but also panicked or scared. Venis was able to understand Officer Settlemoir's questions and responded directly as she was able. Venis told the officer that she was from Lebanon but was unable to coherently tell the officer how she got to Danville.

[32] In response to Officer Settlemoir's questions, Venis admitted to using methamphetamine. Venis was confused about when she had last used methamphetamine, but she was obviously still under the influence, so it was reasonable for the officers to infer that her use was recent. Venis could not provide the address of the house she was visiting but knew the house was on the other side of the government center and stated that it was white.

[33] She implied that the persons in the house she had been staying at were her friends but also disclosed to the officer that they prevented her from making a phone call. Venis told the officers that she fled from the house but left her purse there. She agreed to show Officer Settlemoir and Sergeant Rout the house where she had used methamphetamine. Venis led the officers down the sidewalk of the Hendricks County Government Center toward South Indiana Street. While they were walking, the officers found Venis's shoes and her sock on the lawn between the sidewalk and the government building. As they approached Indiana Street from the government center, she indicated to the officers that she had used drugs at the white house with the sofa on Indiana Street. Shortly thereafter, the officers found Venis's purse containing her cell phone and identification behind the house next to a trailer and on the pathway leading from the unattached garage to the roadway.

[34] To continue his investigation, Officer Settlemoir met with Venis at the Hendricks Regional Health Emergency Department. Venis's statements to the officer were consistent with the statements she gave at the government center. She also told the officer that the individuals in the home injected her with intravenous drugs and showed the officer several injection sites on her arms. The warrant was requested approximately three hours after the officers responded to the 911 call at the government center.

[35] And, again, Venis admitted to using, and therefore possessing, methamphetamine. The fact that a declarant makes statements against her own penal interest is a consideration that can establish the reliability of the informant or the hearsay. State v. Spillers, 847 N.E.2d 949, 954 (Ind. 2006). In Spillers, our Supreme Court observed that admission of a crime carries its “own indicia of credibility” when “an informant, after arrest or confrontation by police, admitted committing criminal offenses under circumstances in which the crimes otherwise would likely have gone undetected.” Id. at 956.

[36] Viewing the circumstances of this case in totality, we conclude that Venis's hearsay statements provided probable cause to issue the search warrant. Although Venis did not describe the individuals in the house or provide any identifying information for them, the facts known to the officers established the possibility that the persons in the home were using and possessing methamphetamine. Venis properly identified herself and her statements were corroborated by her physical condition, her recent use of methamphetamine, and the location of her purse. The statements were consistent and against her penal interest and subjected her to a claim of false reporting if proven to be untrue.

Conclusion

[37] Marshall has not established that the issuing magistrate was misled by the false or inaccurate facts included in the probable cause affidavit or that the omitted facts would have negated a finding of probable cause. And, after reviewing the totality of the circumstances set forth in Detective Lien's affidavit, we conclude that there was a fair probability that contraband or evidence of a crime would be found at 397 South Indiana Street. Therefore, the search warrant was supported by probable cause, and we affirm the trial court's order denying Marshall's motion to suppress.

[38] Affirmed.

FOOTNOTES

2.   In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court held that a hearing is required when the defendant “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit[.]” If the defendant proves the allegation by a preponderance of the evidence, the search warrant must be voided where, “with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause[.]” Id. at 156.

3.   In its order, the trial court also cited to evidence beyond the facts set forth in the affidavit. Specifically, in support of its conclusion that the warrant was supported by probable cause, the trial court's order states: “[n]eighbors reported to the Officers that people were seen ‘coming and going’ from that house at all times of the day and night.” Appellant's App. Vol. 2, p. 150. After the officers had found Venis's purse next to the unattached garage, the investigating officers spoke to a neighbor and that conversation was recorded on Officer Settlemoir's body camera. See Ex. Vol., Ex. B. But Detective Lien did not include any facts relating to that conversation in the probable cause affidavit. The trial court therefore should not have considered the extraneous information in its determination of the validity of the affidavit on its face.

4.   Marshall also makes much of the fact that Detective Lien's affidavit states that Venis's shoes were scattered “as if she had run out of them in a panic.” Ex. Vol., p. 3. Venis's shoes were abandoned in the grass between the sidewalk and the government center building. The detective's opinion that it appeared Venis had “run out of them” was extraneous and not necessary for the determination of probable cause. And the fact that Detective Lien continued to maintain in his pre-hearing deposition that he had reviewed Officer Settlemoir's body camera video and the shoes and purse were found where he had described them in the affidavit, while troubling, is less important in light of his testimony at the suppression hearing where he admitted that those statements were inaccurate.

Mathias, Judge.

Kenworthy, J., and Felix, J., concur.