A Brown County Deputy Sheriff prepared an affidavit for a search warrant of Brandi Hayworth’s house from which a reasonable person could infer that an informant (identified only to the police) had personally observed Hayworth, within the past seventy-two hours, manufacture, possess, and use methamphetamine. A search warrant was issued, and guns, methamphetamine, and numerous items associated with the manufacture of methamphetamine were found. Although it later came out at a suppression hearing that the informant had not, in fact, told the officer that he or she had seen these things, the trial court still denied Hayworth’s motion to suppress, finding that the totality of the circumstances corroborated the informant’s statements. At trial, Hayworth’s attorney attempted to lodge a continuing objection to the evidence seized pursuant to the search warrant. However, after asking for a continuing objection, Hayworth affirmatively said “No objection” to the vast majority of the evidence. We take the opportunity here to clarify that once counsel lodges a sufficiently specific objection to a particular class of evidence and the trial court grants a continuing objection, the proper procedure is to remain silent during the subsequent admission of that class of evidence. We therefore find that Hayworth has waived her objection to the evidence seized during the search warrant for which she affirmatively stated “no objection.”
Nevertheless, because Hayworth has invoked the fundamental error doctrine, we reach the merits and determine that the totality of the circumstances does not corroborate the informant’s statements because the police did not corroborate any illegal activity on Hayworth’s part and only confirmed information that was readily available to the general public, such as her address. In addition, although from the probable cause affidavit the informant appears to have observed the criminal activity firsthand, the police officer’s testimony at the suppression hearing defeats this inference. Probable cause therefore did not exist for the issuance of the search warrant.
Although the State argues that the good faith exception applies, we rely on the United States Supreme Court’s recent decision in Herring v. United States, 129 S. Ct. 695 (2009), and find that the evidence seized pursuant to the search warrant must be suppressed. The police officer’s conduct in including the misleading information in the affidavit amounts to deliberate, reckless, or grossly negligent conduct, the conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct, and the conduct is sufficiently culpable that such deterrence is worth the price paid by our justice system. Finding that the error amounts to fundamental error, we reverse Hayworth’s convictions for Class B felony dealing in methamphetamine and Class D felony possession of methamphetamine and remand this case to the trial court.
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Indiana recognizes continuing objections. [Footnote omitted.] . . . This is because continuing objections serve a useful purpose in trials. That is, they avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time evidence of a given character is offered. . . . .
However, as this case illustrates, there are dangers to using continuing objections. As such, the proper procedure must be carefully followed if attorneys wish to use continuing objections and still properly preserve the admission of specific evidence as an issue on appeal. First, objecting counsel must ask the trial court to consider the same objection to be made and overruled each time a class of evidence is offered. Id. It is within the trial court’s discretion to grant counsel a continuing objection. If the trial court grants the continuing objection, then counsel does not have to object each time the class of evidence is subsequently offered. [Footnote omitted.] . . . This is an exception to the general rule that a party must continue to object and obtain a ruling for each individual instance of inadmissible evidence. . . . If, however, the trial court does not specifically grant the right to a continuing objection, it is counsel’s duty to object to the evidence as it is offered in order to preserve the issue for appeal. . . . .
If the class of evidence to which the continuing objection is lodged is sufficiently defined, [footnote omitted] the trial court is satisfied that repeated objections to the evidence would be futile, and the trial court grants the continuing objection, presentation of the evidence is enhanced and frustration and impatience is reduced. Objecting counsel must ensure, however, that the continuing objection fully and clearly advises the trial court of the specific grounds for the objection. . . . If so, the issue is sufficiently preserved for appeal. . . . .
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. . . Detective Southerland testified about finding a notepad containing a methamphetamine shopping list. At this point Hayworth said: Judge, I need to make a continuing objection to all this evidence because there was a Motion to Suppress filed prior to this with regard to all of the things they’ve found and they wanted – Just note my continuing objection to any of this evidence, pursuant to that motion. . . . Though inartfully worded, it is apparent that Hayworth was asking the trial court for a continuing objection to all of the evidence seized during the execution of the search warrant at 8634 Spearsville Road, which she challenged in her motion to suppress (and which is included in the record on appeal). The trial court responded, “Objection based on the basis for the Motion to Suppress will be denied.” . . . Hayworth then lodged a “continuing objection” to the pseudoephedrine foil blister packs and photographs of two firearms found in the bedroom (Exhibits 6 and 7). However, when a close-up photograph of one of the firearms (Exhibit was introduced, Hayworth said, “No objection.” . . . And when the actual firearms (Exhibits 9 and 10) were introduced, Hayworth again stated, “No objection.” . . . Hayworth also said “No objection” when glass jars and a grinder (Exhibits 11 and 12), both of which are used in the manufacturing process, were introduced. . . . .
From Detective Southerland’s testimony, we see several problems with Hayworth’s attempt to invoke a continuing objection to the items seized during the execution of the search warrant. First, the trial court did not specifically grant Hayworth a continuing objection. Instead, the court denied Hayworth’s objection for the same reason that it denied Hayworth’s motion to suppress. Because the court did not grant Hayworth a continuing objection, she must have objected to each and every piece of evidence in order to preserve her challenge to that evidence on appeal.
Further, after lodging a continuing objection to the methamphetamine shopping list, Hayworth lodged a ‘continuing objection” to two more items of evidence (Exhibits 6 and 7). However, as explained above, the main point of a continuing objection is that counsel does not have to object to the class of evidence (here, that class of evidence was the evidence seized during the execution of the search warrant) after the trial court has granted a continuing objection so that the flow of trial is not interrupted by counsel’s objection and time is not wasted on the trial court’s denial of the objection for the same reason already articulated. Even though Hayworth repeated her continuing objection to Exhibits 6 and 7, for Exhibits 8-12, Hayworth-inexplicably-said, “No objection.” And, the same occurred during Officer Patrick’s testimony. That is, Hayworth lodged a continuing objection to Exhibits 14 and 15 but-again, inexplicably-said “No objection” to Exhibits 16-23.
By stating “No objection,” we find that Hayworth has waived her objection to that evidence. The proper procedure, assuming the trial court granted the continuing objection, would have been for Hayworth to have remained silent when the State introduced those various exhibits. But Hayworth did much more than that. Instead, she affirmatively said, “No objection.” This was confusing to the trial court, the State, and now us, the reviewing court, leaving us to speculate why she bounced back and forth between continuing objection and no objection. On appeal, Hayworth asserts that “No objection” really meant “no objection other than the continuing objection.” However, we will not read “No objection,” a simple and powerful two-word phrase, to have such meaning. This is especially so when Hayworth alternated between using continuing objection and no objection. This then leaves us with the fact that Hayworth has affirmatively said “No objection” to the vast majority of the evidence against her. And as for the evidence to which she did lodge a continuing objection, some competing evidence came in. For example, Hayworth objected to photographs of two firearms but then said “No objection” when the actual firearms were introduced. We thus find that Hayworth has waived her objection to the admission of the evidence seized during the execution of the search warrant.
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Here, the trial court found that the totality of the circumstances corroborated the informant’s statements. See I.C. Â§ 35-33-5-2(b)(2). [Footnote omitted.] In his affidavit, Detective Southerland does not tell us much about the informant, other than he or she provided his or her name, date of birth, and parent’s telephone number and that he or she was not receiving any incentive. [Footnote omitted.] There is absolutely no evidence that the informant had given police correct information in the past. Independent police investigation confirmed the informant’s allegations concerning Hayworth’s address and the fact that there was a yellow truck near the property and a generator supplying power to the mobile home, but these facts are readily available to the general public. . . . In addition, the informant did not predict any conduct or activity on Hayworth’s part.
Detective Southerland described the basis of the informant’s knowledge as having been to Josh and Hayworth’s house within the past seventy-two hours. . . . However, Detective Southerland’s testimony at Hayworth’s suppression hearing appears to defeat any inference that the informant personally witnessed any illegal activity for which Hayworth was ultimately convicted. Despite the affidavit’s language that the informant “wanted to turn in an active meth lab,” said Josh and Hayworth “made methamphetamine there almost every day,” and said “meth could be found in the woman’s purse and/or in the back bedroom to the left, past the kitchen. They make it in the bathroom,” . . . Detective Southerland testified at the suppression hearing that the informant did not tell him that he or she had seen any methamphetamine at the Spearsville Road property, did not tell him that he or she had seen Josh or Hayworth manufacture methamphetamine on the property, and did not tell him that he or she had seen Josh or Hayworth use methamphetamine. Even the trial court expressed the following concern at the suppression hearing:
One thing that concerns me is that, as I read this affidavit, I would take it to mean the person saw all the stuff. He never actually says that, but that’s certainly how I would read it.
Tr. p. 25. Given Detective Southerland’s testimony at the suppression hearing, we find much of his affidavit, then, to be misleading. This is especially so since there was no clarification following Detective Southerland’s damaging testimony as to what the informant allegedly did see. . . . .
As a result, we are left with the following. An informant provided his or her name, date of birth, and parent’s telephone number to the police only. The informant alleged that he or she had been to Hayworth’s house within the past seventy-two hours, wanted to turn in an “active meth lab,” and that Hayworth was selling the finished product. The police confirmed limited information-address, vehicle, and generator-that was readily available to the general public. However, the police did not corroborate any information related to the manufacture, possession, or sale of methamphetamine. [Footnote omitted.] In fact, even though the informant said that there was evidence of methamphetamine activity outside Hayworth’s house, the police did not confirm this. Even without excising the misleading hearsay information from the affidavit, [footnote omitted] the informant’s claim that Hayworth was operating an active methamphetamine lab and possessed and sold methamphetamine was entirely uncorroborated. As such, the hearsay in this case fails to satisfy either the Fourth Amendment or Indiana Code § 35-33-5-2. Probable cause did not exist to support issuing a warrant to search the Spearsville Road property.
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. . . Leon cautioned, however, that the good faith exception is not available in some situations, including where (1) the magistrate is “misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth” or (2) the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (quoting Leon, 468 U.S. at 923). The good faith exception has been codified at Indiana Code § 35-37-4-5.
At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit. [Footnote omitted.] The United States Supreme Court clarified in Herring that to trigger the Fourth Amendment’s exclusionary rule, the “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” 129 S. Ct. at 702. ”[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence.” Id. The pertinent analysis of deterrence and culpability is objective; it is not an inquiry into the subjective awareness of the officer. Id. at 703.
Here, Detective Southerland prepared an affidavit from which a reasonable person could infer that the informant, who had allegedly been to the Spearsville Road property within the past seventy-two hours, had personally observed Hayworth manufacture, possess, and use methamphetamine. To be sure, the affidavit contained such allegations as the informant wanted to turn in an “active meth lab,” Hayworth made methamphetamine there ‘almost every day,” Hayworth was “selling the finished drug to other people,” methamphetamine could be found in Hayworth’s purse or the back bedroom, and Hayworth made methamphetamine in the bathroom. However, at the suppression hearing, Detective Southerland testified that the informant had not told him that he or she had seen any methamphetamine on the property, had not told him that he or she had seen Josh or Hayworth manufacture methamphetamine, and had not told him that he or she had seen Josh or Hayworth use methamphetamine.
We conclude that Detective Southerland’s admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. . . . .
In addition, we conclude that Detective Southerland’s conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. . . . .
In sum, the State is the one urging us to apply the good faith exception, and there is simply nothing in the record to support its application. [Footnote omitted.] Accordingly, the State has failed to prove that the good faith exception applies, [footnote omitted] and the evidence seized pursuant to the search warrant must be excluded.
RILEY, J., and DARDEN, J., concur.