Court reverses marijuana, nuisance convictions

February 18, 2016

The Indiana Court of Appeals reversed a man’s convictions after finding the probable cause affidavit did not contain enough information to support issuing a search warrant.

An officer received information from a confidential informant that David Gerth was selling marijuana at his house, but that CI was “deactivated” because he had not completed all of the obligations required of him before his case was adjudicated. A month later, the officer received another anonymous tip through an email that Gerth was dealing marijuana and obtained a search warrant.

The officer found marijuana on the premises in baggies and jars, as well as marijuana growing equipment, and arrested Gerth.

Gerth filed a motion to suppress all the evidence found in his residence, saying the initial warrant issued was not supported by probable cause. After the trial court found him guilty of dealing in marijuana, a Class C felony, and maintaining a common nuisance, a Class D felony, he appealed.

The Court of Appeals court said the probable cause affidavit in the case did not contain enough information to support issuance of the search warrant for the property. It did not include the fact that the CI was deactivated, and did not establish the credibility of the two confidential informants.
Indiana law holds that two informants who corroborate each other’s’ stories can be taken as credible, but only if one of them has established credibility. Neither one of them did.

Therefore, the appeals court concluded the trial court erred in introducing evidence recovered from Gerth’s residence into evidence, and reversed Gerth’s convictions.

The case is David W. Gerth v. State of Indiana, 29A02-1506-CR-693.


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