A search warrant that led to dealing and methamphetamine use convictions for a DeKalb County man was not defective, the Indiana Court of Appeals has ruled. But one of his convictions was reversed on double jeopardy grounds.
After law enforcement in September 2019 arrested Kathy Handshoe on an outstanding warrant at Brian Phillips’s home, Handshoe told the officers that Phillips had been using and dealing meth as well.
An affidavit was subsequently prepared for a warrant to search Phillips’s home. Based solely on Handshoe’s statements, the officers alleged probable cause to believe that methamphetamine, drug paraphernalia, and other items used in narcotics dealing likely were located there.
A warrant was granted and search of Phillips’ home did reveal what Handshoe had alluded to – a digital scale with powdery residue on it, plastic bags approximately one inch by two inches in size, a shotgun, and a glass container with a red lid holding 18.15 grams of meth.
Phillips was charged and convicted of Level 2 felony dealing and Level 3 felony possession of methamphetamine. He was sentenced to concurrent 10- and five-year sentences, respectively.
The Indiana Court of Appeals partially affirmed his convictions in Brian J. Phillips v. State of Indiana, 20A-CR-01962,
despite Phillips’ argument that the search warrant was defective and the search was illegally conducted.
“He asserts the only basis for issuance of the warrant was a drug addict’s unreliable statements, which failed to establish the necessary probable cause for the warrant. Finding no illegal search, we affirm Phillips’s conviction for dealing in
methamphetamine. However, we sua sponte reverse Phillips’s conviction for
possession of methamphetamine because it violates double jeopardy,” Judge Leanna Weissmann wrote.
While it noted that the affidavit isn’t clear on whether Handshoe’s allegation of Phillips’s drug dealing was based on direct observation or speculation, the COA concluded that the remainder of the allegations in the affidavit support the judge’s determination that Handshoe’s hearsay statements were reliable enough to support both a finding of probable cause and issuance of the search warrant for Phillip’s home.
It also found Phillips failed to establish that the officer omitted any material facts in the affidavit that would have left probable cause in doubt.
But the COA reversed Phillips’ Level 3 felony conviction on double jeopardy grounds under the Indiana Supreme Court’s test in Wadle v. State, 151 N.E.3d 227 (Ind. 2020).
It found that as charged and tried, his possession count was a factually included offense of his dealing count and that his offenses constituted a single transaction under Wadle.
It therefore remanded with instructions to vacate that conviction.