Donald Snover v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any Oct 30 2015, 9:40 am

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stephen T. Owens Gregory F. Zoeller

Public Defender of Indiana Attorney General of Indiana

Kevin R. Hewlate Chandra K. Hein

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Donald Snover, October 30, 2015

Appellant-Defendant, Court of Appeals Case No.

20A03-1505-PC-320

v. Appeal from the Elkhart Circuit

Court

State of Indiana, The Honorable Terry C.

Appellee-Plaintiff. Shewmaker, Judge

Trial Court Cause No.

20C01-0611-PC-28

Brown, Judge.

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[1] Donald Snover appeals the denial of his petition for post-conviction relief.

Snover raises one issue which we revise and restate as whether Snover was

denied the effective assistance of appellate counsel. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Snover’s direct appeal from his convictions of

dealing in methamphetamine as a class A felony and possession of marijuana as

a class D felony follow:

On November 12, 2003, a routine traffic stop in Elkhart, Indiana,

led to the arrest of the driver, Kelly Hammond, who had

outstanding warrants for his arrest. Upon his arrest, Hammond

admitted he had methamphetamine in the car, and a police

search recovered four grams of methamphetamine. After

Miranda warnings, Hammond gave a written and signed

confession. Thereafter, without the police making any promises

regarding his prosecution, Hammond told the police his source

for the drugs was Donald Snover. Hammond reported Snover

had additional drugs in his second floor bedroom at his house on

Laurel Street in Elkhart.

That same day, police prepared a search warrant affidavit that

provided:

The undersigned Affiant swears upon his oath that

he believes and has good cause to believe that:

Certain evidence involved in the commission of the

crime of possession of and/or use of and/or dealing

in methamphetamine, cocaine, marijuana, or other

controlled substances, or drug paraphernalia in

violation of I.C. 35-48-4 et seq. is concealed in, on, or

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about a residence situate[d] at 821 Laurel St., City of

Elkhart, Elkhart County, State of Indiana, said

premises being more particularly described as

follows: 821 Laurel St. is believed to be the residence

of Donald W. Snover and is a two-story single family

dwelling. The house has gray vinyl siding with white

trim around the windows and doors and is on the

southeast corner of Laurel and Plum. There are

landscape timbers and bushes on the north side of the

house, which surround a wooden porch. The

numbers “821” are black and affixed vertically to the

right of the front door. There is a black metal

mailbox to the right side of the door and underneath

the numbers. There is a wooden deck on the south

side of the house. There is an attached garage on the

east side of the house.

This Affiant bases his belief and cause for belief on

the fact that:

1. The affiant is [a] police officer with the Elkhart

Police Department and has been employed in that

capacity for six (6) years. The affiant has participated

in approximately twenty (20) drug investigations and

arrests during his tenure. These investigations have

led to the seizure of methamphetamine, crack

cocaine and marijuana.

2. The affiant attended a gang conference and

seminar in Chicago, Illinois. The gang school

included training on numerous types of narcotics and

hidden compartments. The affiant has also attended

a seminar for drug investigations for the patrol

officer.

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3. On July 31, 2003, Investigator William Wargo

from the Elkhart County Prosecutor’s Office received

drug intelligence in reference to 821 Laurel St. The

intelligence was provided by a confidential source

who had provided information in the past which was

determined to be credible and reliable. The CS stated

that Don Snover of 821 Laurel St. was dealing

ounces of methamphetamine from his residence,

indicating that this was an ongoing long-term

operation.

4. On November 12, 2003, the affiant executed a

traffic stop at the intersection of Nappanee St. and

W. Beardsley in Elkhart County, Indiana. The

affiant arrested the driver, Kelly Hammond, with a

date of birth of July 8, 1960, on an outstanding

Elkhart County warrant. During the search incident

to lawful arrest, the affiant located a lunch box on the

passenger’s side floorboard. The lunch box

contained a plastic bag containing approximately 4.0

grams of suspected methamphetamine. The

methamphetamine later tested positive with the

MDMA/methamphetamine test kit. Thereafter, after

being advised of his statutory and constitutional

rights, Kelly Hammond gave a statement against his

own penal interests to Cpl. Ballard and Cpl.

Buchmann. This statement was made after his arrest

and without any promises or consideration being

given to him by any law enforcement officer. In the

statement, Kelly Hammond stated that the

methamphetamine was his and it was one-eighth of

an ounce. Kelly Hammond stated that he purchased

the methamphetamine from Donald Snover for

$125.00 just prior to the traffic stop. Kelly

Hammond stated that he purchased the

methamphetamine in an upstairs bedroom at

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Snover’s residence at 821 Laurel Street. Kelly

Hammond further stated that at the same time of the

purchase, he observed Donald Snover in possession

of an additional quantity of controlled substances

which he estimated to be approximately three-

quarters of a pound of methamphetamine and one

pound of marijuana.

5. The affiant researched the Elkhart Police

Department RMS and located Donald Snover.

Donald Snover is described as a white male with a

date of birth of December 13, 1959. Donald Snover

is also described as being 5’6”, 135 lbs., with brown

hair and green eyes. Donald Snover listed 821 Laurel

St., Elkhart, Indiana as his address. The affiant also

ran an Interstate identification Index/Criminal

History on Donald Snover. The Criminal History

stated that Donald Snover was arrested for Felony

Possession of Marijuana on October 4th, 1999.

6. All of the aforesaid facts are within the personal

knowledge of the Affiant and/or have been

corroborated by the information and investigation

specified above for the offenses of dealing in and/or

possession of and/or use of methamphetamine and

other controlled substances and that evidence of same

is concealed in or about the above described premises

which is within the County of Elkhart, State of

Indiana. Further, the affiant has probable cause to

believe that the information provided by Kelly

Hammond is truthful and accurate based upon (1) the

corroboration from the prior CS whose information

indicated the presence of long-term drug trafficking

by Donald Snover at his residence on Laurel Street

and (2) the fact that the information was provided by

Hammond without any consideration, included

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statements made which were against his penal

interests, and were provided by him with the

knowledge that his identity would be disclosed.

7. Based upon the foregoing the affiant verily believes

that a search of the residence identified in the

paragraphs above will disclose the existence of:

methamphetamine, cocaine, marijuana, narcotic

drugs or other controlled substances, drug

paraphernalia, drug ledgers or records of dealing in

such controlled substances, money, scales used for

weighing controlled substances, packaging materials

for such substances, documents of residency, and/or

other physical evidence indicative of possession of

and/or use and/or dealing of cocaine,

methamphetamine, marijuana, or controlled

substances and paraphernalia.

(App. at 23-24.)

Based on that affidavit, a judge issued the search warrant. Police

executed the warrant the night of November 12th and the early

morning of November 13th. In Snover’s bedroom, they found

280.70 grams of marijuana, 46.07 grams of methamphetamine,

464.42 grams of amphetamine, a triple-beam scale, an electronic

scale, baggies, a tile with a line of drugs and a straw, $1,400 in

cash, and a notebook resembling a drug ledger. Snover had $350

on his person.

Snover v. State, 837 N.E.2d 1042, 1045-1047 (Ind. Ct. App. 2005).

[3] On November 17, 2003, the State charged Snover with dealing in

methamphetamine as a class A felony and possession of marijuana as a class D

felony. Id. at 1047. On December 28, 2004, Snover filed a motion to suppress

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evidence and argued that the search warrant was not based upon reliable and

credible information, was based upon stale information, and violated his rights.

[4] On January 3, 2005, the court held a hearing on the motion to suppress, and

Snover’s trial counsel argued as set forth in the motion, and stated that the issue

was whether “the officers exercised bad faith in obtaining the search warrant.”

Trial Transcript at 182. The court asked what evidence of bad faith existed, and

defense counsel responded that part of the information in the affidavit for the

search warrant was stale and was used to “bootstrap the argument that a person

who’s reliability is unknown is sufficient . . . .” Id. at 183.

[5] After some discussion, the prosecutor asserted that paragraph 3 of the affidavit

was not included to “bootstrap or to anything else as it relates to reliability of

the information provided by Kelly Hammond other than to simply report to the

magistrate that there had been other intelligence.” Id. at 187. The prosecutor

also argued that “it’s not in any way used to attempt to mislead the magistrate

or attempt to indicate that the reliability of the information provided by

Hammond should be enhanced because of the information from July 31, 2003.”

Id. at 188. The prosecutor also noted that paragraph 4 of the affidavit included

Hammond’s identity and referred to a statement against his penal interest. The

following day, the court denied the motion to suppress.

[6] A jury found Snover guilty of both counts. 837 N.E.2d at 1047. The court

imposed concurrent sentences of thirty-five years for dealing methamphetamine

and one-and-a-half years for possession of marijuana. Id.

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[7] On direct appeal, Snover’s appellate counsel filed a brief on June 6, 2005, and

argued that the trial court should have suppressed the evidence found in

Snover’s home because the judge issuing the search warrant did not have a

substantial basis to believe the statements in the affidavit in support of the

application for the warrant established probable cause. Appellate counsel also

argued that the good faith exception to the exclusion doctrine did not apply

because the warrant was based on an affidavit so lacking in indicia or probable

cause as to render belief in its existence unreasonable. The State argued that

the warrant was either supported by probable cause or the evidence seized was

admissible under the good faith exception in United States v. Leon, 468 U.S. 897,

104 S. Ct. 3405 (1984).

[8] This court observed that the credibility of an informant could be established by

declarations against penal interest. 837 N.E.2d at 1048-1049. The court agreed

with Snover that Hammond’s statement was not against his penal interest and

thus did not demonstrate he was a credible source of information, and that no

other information in the affidavit demonstrated Hammond’s credibility. Id. at

1049. The court observed that Corporal Ballard learned Snover had been

arrested four years earlier for possession of marijuana but noted that an arrest

without a conviction is not proof of prior possession. Id. The court then

observed that the only remaining evidence was the four-month-old report from

an unnamed confidential source indicating Snover was selling

methamphetamine from his residence and that while stale information alone

may not support a finding of probable cause, it may be considered as part of the

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totality of the circumstances creating probable cause. Id. at 1049-1050. The

court held that Corporal Ballard provided no evidence by which the issuing

judge could have determined the confidential informant had credibility. Id. at

1050. The court further held that “[b]ecause the affidavit did not demonstrate

the credibility of either Hammond or the confidential informant, and did not

contain other information corroborating their reports, probable cause did not

exist to support issuing a search warrant for Snover’s house.” Id.

[9] The court then addressed the good faith exception, concluding that “[w]hile we

find the warrant on which police relied to search Snover’s residence was not

supported by probable cause, we cannot characterize it as so facially deficient

that the executing officers could not reasonably presume it to be valid.” Id. at

1050-1051. The court affirmed the admission of the evidence found at Snover’s

house. Id.

[10] Judge Kirsch concurred in result and concluded that Hammond’s statements to

police qualified as statements against penal interest. Id. at 1052. He also stated

that even if neither “the statements made by the confidential informant nor by

Hammond individually provide a sufficient basis for the determination of

probable cause, taken together they are sufficient for a reasonably prudent

person to conclude that a search of Snover’s residence would produce evidence

of a crime as, indeed, it did.” Id.

[11] In 2014, Snover filed an amended petition for post-conviction relief and argued

that his appellate counsel was ineffective for failing to argue that the State

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waived the issue of whether the good faith exception applied because it did not

assert the argument prior to appeal.

[12] On January 8, 2015, the post-conviction court held a hearing. At the hearing,

Snover’s appellate counsel testified that he did not know whether he was aware

of the case of Merritt v. State at the time he was working on the appeal and that

he did not recall if he considered citing Merritt.

[13] On April 28, 2015, the post-conviction court denied Snover’s petition for relief.

The order states in part:

30. In the instant case, [appellate counsel] testified that he did

not recall being aware of the case of Merritt v. State, 803 N.E.2d

257 (Ind. Ct. App. 2004), and could not recall whether he

considered it when filing the appeal . . . . There was, however,

no additional questioning or testimony as to whether [appellate

counsel] was unaware of the proposition of law that [Snover]

claims Merritt stands for; to-wit: the good faith exception

argument is waived if it is not raised by the State at the

suppression hearing.

31. It is [Snover’s] position that Merritt would have led to a

winning argument on appeal had [appellate counsel] cited the

case. This is not necessarily true. When reviewing a trial court’s

ruling on the validity of a search and seizure, the reviewing court

considers the evidence most favorable to the ruling and any

uncontradicted evidence to the contrary to determine whether

there is sufficient evidence to support the ruling. Melton v. State,

705 N.E.2d 564, 566 (Ind. Ct. App. 1999). A trial court’s ruling

on a motion to suppress may be affirmed if it is sustainable on

any legal grounds apparent in the record. (Emphasis added).

Robinson v. State, 730 N.E.2d 185, 192 (Ind. Ct. App. 2000),

citing Alford v. State, 699 N.E.2d 247, 250 (Ind. 1998).

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32. Similarly, in the instant case, this court found that probable

cause existed in the search warrant affidavit; the Indiana Court of

Appeals disagreed; however, determined that the evidence was

admissible under another legal ground apparent in the record.

Two [judges] found it admissible under the good faith exception,

and C.J. Kirsch, writing separately, agreed with the trial court’s

determination that probable cause existed owing to statements in

[sic] penal interests. Snover, 837 N.E.2d 1051-52. Essentially,

the Court found that the search warrant in [Snover’s] case was

not so facially deficient that the executing officers could not

reasonably presume it to be valid. Snover at 1051.

33. While the post conviction record establishes that [appellate

counsel] was not aware of the Merritt decision, he did address a

legal theory on appeal that was apparent in the trial record. The

circumstances in the instant case are somewhat distinguishable

from those in Merritt as the need to raise the good faith exception

was not so obvious that the State or counsel would have

reasonably raised it at the suppression hearing. This is

particularly true since the trial judge and the three Indiana Court

of Appeals [judges] who reviewed this case did not agree on the

appropriate legal theory of admissibility, although all agreed the

evidence was admissible. Therefore, it cannot be said that

[appellate counsel] was ineffective for not challenging the

admissibility of the evidence on every legal theory available. For

these reasons, the court concludes that [Snover] has not met his

burden of proving that there was a reasonable likelihood of a

different outcome had [appellate counsel] done so. Accordingly,

[Snover] has failed to prove that he received ineffective assistance

of appellate counsel.

Appellant’s Appendix at 115-116.

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Discussion

[14] Before discussing Snover’s allegations of error, we observe that the purpose of a

petition for post-conviction relief is to raise issues unknown or unavailable to a

defendant at the time of the original trial and appeal. Reed v. State, 856 N.E.2d

1189, 1194 (Ind. 2006). A post-conviction petition is not a substitute for an

appeal. Id. Further, post-conviction proceedings do not afford a petitioner a

“super-appeal.” Id. The post-conviction rules contemplate a narrow remedy

for subsequent collateral challenges to convictions. Id. If an issue was known

and available but not raised on appeal, it is waived. Id.

[15] We also note the general standard under which we review a post-conviction

court’s denial of a petition for post-conviction relief. The petitioner in a post-

conviction proceeding bears the burden of establishing grounds for relief by a

preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

the judgment unless the evidence as a whole unerringly and unmistakably leads

to a conclusion opposite that reached by the post-conviction court. Id. Further,

the post-conviction court in this case entered findings of fact and conclusions

thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-

conviction court’s findings and judgment will be reversed only upon a showing

of clear error – that which leaves us with a definite and firm conviction that a

mistake has been made.” Id. In this review, we accept findings of fact unless

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clearly erroneous, but we accord no deference to conclusions of law. Id. The

post-conviction court is the sole judge of the weight of the evidence and the

credibility of witnesses. Id.

[16] Snover argues that his appellate counsel was ineffective because he failed to

argue that the good faith exception was waived, noting that his appellate

counsel failed to cite Merritt v. State, 803 N.E.2d 257 (Ind. Ct. App. 2004),

which held that the State’s argument on appeal that seized evidence was

admissible under the good faith exception to the warrant requirement was

waived because the State did not advance the argument in its memorandum in

opposition to the motion to suppress or at the suppression hearing. Snover

points out that Merritt was decided on February 13, 2004, well before his

appellate counsel filed a brief on June 6, 2005. He asserts that no other case

contradicts the holding in Merritt and that the State did not raise the good faith

exception to the trial court. He contends that his appellate counsel should have

cited Merritt and argued that the issue was waived, that his appellate counsel’s

failure to raise Merritt was not strategic, and that he was prejudiced.

[17] The State argues the post-conviction court appropriately observed that appellate

counsel’s lack of familiarity with Merritt does not equate with ignorance about

when a waiver argument is available, and that it did not waive its good faith

claim because it asserted it at the suppression hearing. The State also argues

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that Merritt appears to be inconsistent with Ind. Code § 35-37-4-51 and that the

statute places an obligation on the trial court, in its discretion, to exclude

evidence if it finds that officers did not act in good faith, concluding that

appellate counsel was not deficient for not arguing waiver because it was

unclear whether the State was required to affirmatively assert good faith. It also

posits that Snover was not prejudiced because a trial court’s decision to admit

or exclude evidence is sustainable on any basis in the record and that this court

was free to affirm Snover’s convictions based on good faith regardless of

whether the State affirmatively asserted it.

1

Ind. Code § 35-37-4-5 is titled “Evidence unlawfully obtained by officer in good faith; exclusion” and

provides:

(a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an

infraction, the court may not grant a motion to exclude evidence on the grounds that the search

or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a

law enforcement officer in good faith.

(b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith

if:

(1) it is obtained pursuant to:

(A) a search warrant that was properly issued upon a determination of probable

cause by a neutral and detached magistrate, that is free from obvious defects other

than nondeliberate errors made in its preparation, and that was reasonably believed

by the law enforcement officer to be valid; or

(B) a state statute, judicial precedent, or court rule that is later declared

unconstitutional or otherwise invalidated; and

(2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable

minimum basic training requirements established by rules adopted by the law enforcement

training board under IC 5-2-1-9.

(c) This section does not affect the right of a person to bring a civil action against a law

enforcement officer or a governmental entity to recover damages for the violation of his rights

by an unlawful search and seizure.

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[18] In his reply brief, Snover states that any argument by the prosecutor focused on

the actions of police in obtaining the search warrant and that this argument was

based on Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), which is an

entirely separate argument from the good faith exception based on United States

v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), and which focuses on the action

of the police after the search warrant is issued.

[19] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

must demonstrate both that his counsel’s performance was deficient and that

the petitioner was prejudiced by the deficient performance. French v. State, 778

N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

below an objective standard of reasonableness based on prevailing professional

norms. Id. To meet the appropriate test for prejudice, the petitioner must show

that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

We apply the same standard of review to claims of ineffective assistance of

appellate counsel as we apply to claims of ineffective assistance of trial counsel.

Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,

531 U.S. 1128, 121 S. Ct. 886 (2001).

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[20] When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.”

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

is presumed effective, and a defendant must offer strong and convincing

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

not support a claim of ineffective assistance of counsel. Clark v. State, 668

N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).

[21] Ineffective assistance of appellate counsel claims fall into three categories: (1)

denial of access to an appeal; (2) waiver of issues; and (3) failure to present

issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997), reh’g denied,

cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). Snover asserts that his

appellate counsel was ineffective because he did not “competently present the

issue of whether the evidence seized as part of the execution of the search

warrant was properly admitted.” Appellant’s Brief at 6. He states that his

appellate counsel properly raised the suppression issue and “just failed to argue

that the good faith exception was waived.” Id. at 7. He concedes that “[c]laims

of inadequate presentation of certain issues, when such were not deemed

waived in the direct appeal, are the most difficult to advance.” Id. (citing

Bieghler, 690 N.E.2d at 195).

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[22] Indeed, in Bieghler, the Indiana Supreme Court held that “[c]laims of

inadequate presentation of certain issues, when such were not deemed waived

in the direct appeal, are the most difficult for convicts to advance and reviewing

tribunals to support.” Bieghler, 690 N.E.2d at 195. The Court expressed two

reasons for this proposition. First, “these claims essentially require the

reviewing tribunal to re-view specific issues it has already adjudicated to

determine whether the new record citations, case references, or arguments

would have had any marginal effect on their previous decision,” and “this kind

of ineffectiveness claim, as compared to the others mentioned, most implicates

concerns of finality, judicial economy, and repose while least affecting

assurance of a valid conviction.” Id. “Second, an Indiana appellate court is not

limited in its review of issues to the facts and cases cited and arguments made

by the appellant’s counsel.” Id. The Court expanded on the second reason by

stating:

We commonly review relevant portions of the record, perform

separate legal research, and often decide cases based on legal

arguments and reasoning not advanced by either party. While

impressive appellate advocacy can influence the decisions

appellate judges make and does make our task easier, a less than

top notch performance does not necessarily prevent us from

appreciating the full measure of an appellant’s claim, or amount

to a “breakdown in the adversarial process that our system

counts on to produce just results,” Strickland, 466 U.S. at 696,

104 S.Ct. at 2069.

Id. at 195-196 (some internal citations omitted). “For these reasons, an

ineffectiveness challenge resting on counsel’s presentation of a claim must

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overcome the strongest presumption of adequate assistance.” Id. at 196.

“Judicial scrutiny of counsel’s performance, already ‘highly deferential,’

Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995), is properly at its highest.”

Id. “Relief is only appropriate when the appellate court is confident it would

have ruled differently.” Id.

[23] In Merritt, this court addressed whether a trial court erred in denying the

defendant’s motion to suppress. 803 N.E.2d at 258. We observed that the State

argued on appeal that even if probable cause was lacking, the evidence seized

was admissible under the good faith exception to the warrant requirement. Id.

at 261. We also observed that the State did not advance this argument in its

memorandum in opposition to the motion to suppress or at the suppression

hearing and that, “[a]ccordingly, the issue is waived.” Id. (citing Taylor v. State,

710 N.E.2d 921, 923 (Ind. 1999) (finding that a party is limited to the specific

grounds argued to the trial court and cannot assert new bases for admissibility

for the first time on appeal)).

[24] Even assuming that appellate counsel was deficient in failing to cite Merritt, we

cannot say that the prosecutor failed to argue good faith or waived the

argument. The good faith exception was enunciated in United States v. Leon, 468

U.S. 897, 104 S. Ct. 3405 (1984). Generally, the exclusionary rule “does not

require the suppression of evidence obtained in reliance on a defective search

warrant if the police relied on the warrant in objective good faith.” Jackson v.

State, 908 N.E.2d 1140, 1143 (Ind. 2009) (citing United States v. Leon, 468 U.S.

897, 104 S. Ct. 3405 (1984)). The good faith exception is not available in some

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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, 104 S. Ct.

3405).

[25] To the extent Snover asserts that the argument made by the prosecutor focused

on the actions of the police in obtaining the search warrant and Franks v.

Delaware, and not the good faith exception which focuses on the police actions

after the search warrant is issued and is based upon United States v. Leon, we will

discuss these cases.

[26] In Franks, the United States Supreme Court addressed whether a defendant in a

criminal proceeding ever has the right under the Fourth and Fourteenth

Amendments, subsequent to the ex parte issuance of a search warrant, to

challenge the truthfulness of factual statements made in an affidavit supporting

the warrant. 438 U.S. at 155, 98 S. Ct. at 2676. The Court held:

where 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, and if the allegedly false statement is necessary

to the finding of probable cause, the Fourth Amendment requires

that a hearing be held at the defendant’s request. In the event

that at that hearing the allegation of perjury or reckless disregard

is established by the defendant by a preponderance of the

evidence, and, with the affidavit’s false material set to one side,

the affidavit’s remaining content is insufficient to establish

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probable cause, the search warrant must be voided and the fruits

of the search excluded to the same extent as if probable cause

was lacking on the face of the affidavit.

Id. at 155-156, 98 S. Ct. at 2676.

[27] In Leon, the United States Supreme Court addressed “whether the Fourth

Amendment exclusionary rule should be modified so as not to bar the use in the

prosecution’s case in chief of evidence obtained by officers acting in reasonable

reliance on a search warrant issued by a detached and neutral magistrate but

ultimately found to be unsupported by probable cause.” 468 U.S. at 900, 104 S.

Ct. at 3409. The Court cited Franks multiple times and discussed the good faith

of the officers applying for the warrant as well as the officers executing the

warrant. The Court held that the suppression of evidence obtained pursuant to

a warrant should be ordered only on a case-by-case basis and only in those

unusual cases in which exclusion will further the purposes of the exclusionary

rule. Id. at 918, 98 S. Ct. at 3418. The Court observed that where the official

action was pursued in complete good faith, the deterrence rationale behind the

exclusionary rule loses much of its force. Id. at 919, 98 S. Ct. at 3418-3419.

The Court held that once the warrant issues, there is literally nothing more the

policeman can do in seeking to comply with the law. Id. at 921, 98 S. Ct. at

3419. The Court also observed that penalizing the officer for the magistrate’s

error, rather than his own, could not logically contribute to the deterrence of

Fourth Amendment violations. Id. The Court noted:

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References to “officer” throughout this opinion should not be

read too narrowly. It is necessary to consider the objective

reasonableness, not only of the officers who eventually executed

a warrant, but also of the officers who originally obtained it or

who provided information material to the probable-cause

determination. Nothing in our opinion suggests, for example,

that an officer could obtain a warrant on the basis of a “bare

bones” affidavit and then rely on colleagues who are ignorant of

the circumstances under which the warrant was obtained to

conduct the search.

Id. at 923 n.24, 98 S. Ct. at 3420 n.24. The Court cited Franks and held:

“Suppression therefore remains an appropriate remedy if the magistrate or

judge in issuing a warrant was 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.” Id. at 923, 98 S. Ct. at 3421 (citing Franks, 438 U.S.

154, 98 S. Ct. 2674). The Court concluded: “In the absence of an allegation

that the magistrate abandoned his detached and neutral role, suppression is

appropriate only if the officers were dishonest or reckless in preparing their

affidavit or could not have harbored an objectively reasonable belief in the

existence of probable cause.” Id. at 926, 98 S. Ct. at 3422.

[28] At the hearing on Snover’s motion to suppress, the prosecutor responded to the

argument of Snover’s trial counsel that the officers exercised “bad faith” in

obtaining the search warrant. Trial Transcript at 182. Specifically, the

prosecutor argued that paragraph 3 of the affidavit was not included to

“bootstrap or to anything else as it relates to reliability of the information

provided by Kelly Hammond other than to simply report to the magistrate that

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there had been other intelligence.” Id. at 187. The prosecutor also argued that

“it’s not in any way used to attempt to mislead the magistrate or attempt to

indicate that the reliability of the information provided by Hammond should be

enhanced because of the information from July 31, 2003.” Id. at 188. The

prosecutor also maintained that paragraph 4 of the affidavit included

Hammond’s identity and referred to a statement against his penal interest.

Given the discussion in Leon, we cannot say that the prosecutor failed to raise

the good faith exception. Accordingly, we cannot say that Snover

demonstrated a reasonable probability that, but for appellate counsel’s failure to

cite Merritt, the result of the proceeding would have been different.

Conclusion

[29] For the foregoing reasons, we affirm the post-conviction court’s denial of

Snover’s petition for post-conviction relief.

[30] Affirmed.

Riley, J., and Altice, J., concur.

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