ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN D. CLOUSE JEFFREY A. MODISETT
JOHN P. BRINSON Attorney General of Indiana
Deputy Attorney General
DAVID A. NEUHOFF, ) ) Appellant-Defendant, ) ) vs. ) No. 82A01-9806-CR-213 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
uniformed officer hid inside the apartment. When Neuhoff and Culbertson arrived, Neuhoff
asked Brown when the package arrived and whether she had signed for it. Acting nervously
and commenting that the police were watching, Neuhoff moved the package from its position
inside the door and toward the middle of the room. Shortly thereafter Sadowitz and the
uniformed officer revealed their presence and arrested both Neuhoff and Culbertson. The
State charged Neuhoff with dealing in marijuana as a Class C felony. Prior to trial Neuhoff
filed a motion to suppress which the trial court denied after a hearing. At trial the marijuana
was introduced into evidence over Neuhoff's objection. Ultimately a jury convicted Neuhoff
of the included offense of attempted dealing in marijuana as a Class C felony. This appeal
probable cause affidavit was deficient because it did not specify the dogs' reliability. It is
true there was nothing in the affidavit concerning the reliability of the Texas drug sniffing
dog. However that is not true concerning the Indiana drug sniffing dog. We find sufficient
the affiant's representation that the Indiana dog was recertified on June 6, 1997, by the
Indianapolis Police Department as a Narcotic Detective Canine; that the dog has participated
in approximately 250 searches both in the field and in training situations; that the dog and
its handler are certified yearly by the Indianapolis Police Department as a Dog Handler and
Narcotics Canine team; and that the dog and its handler have received specialized training
in the detection of the odor of marijuana, cocaine, heroin, and methamphetamines. R. at 279.
The smell testing by the Indiana dog was sufficient in itself to support the issuance of the search warrant. However there was additional information in the affidavit to justify the warrant in this case. The package contained several indicia enumerated in the drug smuggling profile utilized by postal inspectors in determining the suspiciousness of parcels sent through the United States mail. The profile contains the following elements: 1) the source city is known for its illegal drug trade; 2) the package is an unusual size and shape; and 3) the return addressee is fictitious. People v. May, 886 P.2d 280, 282 n.2 (Colo. 1994).See footnote 1 In his affidavit supporting the issuance of a search warrant inspector Sadowitz represented that Brownsville, Texas, the package's origin, "is a major source city for narcotics in the United States." R. at 279. He also represented that the package's size of twelve inches by
twelve inches by thirteen inches and weight of sixteen pounds contributed to its suspicious
character. Although the return address did not appear fictitious, the alleged sender, Anthony
Page, could not be located at the return address. Based on these circumstances, the package
was removed from shipment for investigation.
Probable cause has never been capable of precise definition, and its existence is fact sensitive to each case. Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). When deciding whether to issue a search warrant, "[t]he task of the issuing magistrate is simply to 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." Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed.2d 527 (1983), trans. denied). On appeal we must decide whether there was a substantial basis for concluding the existence of probable cause. Figert, 686 N.E.2d at 830. "[S]ubstantial 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 determination" of probable cause. Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997). In the case before us there was sufficient probable cause for the issuance of the search warrant. Accordingly the trial court did not err in denying Neuhoff's motion to suppress and entering the marijuana into evidence over Neuhoff's objection.
1. acting with specific intent to commit Dealing in Marijuana by knowingly
possessing marijuana in an amount over ten (10) pounds with the intent to
2. did enter 930 Douglas Drive in Evansville, Indiana, to pick up a box containing more than ten (10) pounds of marijuana, and did physically move the box from one place to another.
3. which was conduct constituting a substantial step toward the commission of the intended crime of Dealing in Marijuana.
If the state failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant [not] guilty of the crime of attempted Dealing in Marijuana, a Class C felony.
R. at 238-39. Pointing to sections 2 and 3 Neuhoff contends the instruction is mandatory because it compelled the jury to return a guilty verdict should the jury find the existence of certain facts. More specifically Neuhoff argues that what constitutes a substantial step is a question for the jury to decide. The argument continues that here the trial court did not leave the matter to the jury, but rather instructed the jury on what constituted a substantial step.
A mandatory instruction is one which "attempt[s] to set up a factual situation directing the jury to a certain result." Ajabu v. State, 677 N.E.2d 1035, 1039 n.3 (Ind. Ct. App. 1997). Article I, § 19 of the Indiana Constitution provides "[i]n all criminal cases whatever, the jury
shall have the right to determine the law and the facts." In Pritchard v. State, 248 Ind. 566,
230 N.E.2d 416 (1967) the defendant challenged the following instruction:
The Court now instructs you that if you should find that [the defendant was] guilty of cruelty or neglect of [the victim] and that as a result of such cruelty or neglect beyond a reasonable doubt [the victim] did sicken, languish and die, then you shall find such defendant guilty of involuntary manslaughter.
Id. at 417 (emphasis in original). In finding this language to be erroneous, our supreme court
held that a mandatory instruction which binds the minds and consciences of the jury to return
a verdict of guilty upon finding certain facts, invades the constitutional province of the jury.
Id. at 421.
We first observe that not only does the instruction in this case track the language of the Indiana Pattern Jury InstructionsSee footnote 2 but also we approved a similar instruction in Taylor v. State, 659 N.E.2d 1054, 1059 (Ind. Ct. App. 1995), trans. denied.See footnote 3 In any event we do not
read the instruction here as mandatory. An instruction given to the jury must be a correct
statement of the law, must be applicable to the evidence adduced at trial, and must be
relevant to issues the jury must decide in reaching its verdict. Anderson v. State, 653 N.E.2d
1048, 1051 (Ind. Ct. App. 1995). The mere fact that instructions refer to evidence in criminal
proceedings does not itself constitute error. Wilson v. State, 263 Ind. 469, 333 N.E.2d 755,
763 (1975). The instruction in this case represents a correct statement of the law, and was
applicable to the evidence adduced at trial. That trial court did not abuse its discretion in
giving the instruction.
set aside. Nunn v. State, 601 N.E.2d 334, 338 (Ind. 1992). The crime of Dealing in
Marijuana, as a Class C felony, involves possession and the intent to deliver more than ten
pounds of marijuana. Ind. Code § 35-48-4-10. When a person attempts to deal in marijuana,
he must act with the culpability required for commission of the crime and engage in conduct
that constitutes a substantial step toward commission of the crime. Ind. Code § 35-41-5-1(a).
Intent involves a person's state of mind, and the fact finder "must infer its existence from surrounding circumstances when determining whether the requisite intent exists." Goodner v. State, 685 N.E.2d 1058, 1062 (Ind. 1997). Here, the record shows Neuhoff was aware of the package's delivery and asked Brown when the package had been delivered and whether she signed for it. Neuhoff then moved the package around the room and paced nervously inside and outside the apartment because he thought the police were watching him. This evidence substantiates the inference that Neuhoff intended to possess the package but was apprehensive about opening the package because of the presence of law enforcement. The evidence also demonstrates that Neuhoff engaged in a substantial step toward possessing the package. What constitutes a substantial step is dependent upon the facts of each case, but the requirement is a minimal one, often defined as any overt act in furtherance of the crime. State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind. 1996). The determination of what constitutes a substantial step is left to the province of the jury. Burdine v. State, 646 N.E.2d 696, 699 (Ind. Ct. App. 1995), trans. denied. As noted when Neuhoff arrived at the apartment he questioned Brown about the circumstances surrounding the package's delivery. He then moved the package around the living room of the apartment with his foot and
appeared nervous about opening the package. From this set of facts, a jury could have found
that Neuhoff engaged in a substantial step towards possession of the package.
DARDEN, J., concurs.
SULLIVAN, J., concurs in result with opinion.
COURT OF APPEALS OF INDIANA
DAVID A. NEUHOFF, )
vs. ) No. 82A01-9806-CR-213
STATE OF INDIANA, )
SULLIVAN, Judge, concurring in result
I concur with the majority's affirmance, in Part I, of the trial court's denial of appellant's Motion to Suppress. In doing so, however, I must respectfully note that the majority cites to Kenner v. State (1999) Ind.App., 703 N.E.2d 1122, 1125, reh'g denied, for the proposition that the alert of a trained dog can provide the probable cause necessary to obtain a search warrant. Slip op. at 3. To be sure, in the case before us, postal inspector Sadowitz did obtain a search warrant following the Indianapolis Police dog's alert to the presence of drugs. Similarly, in U.S. v. Place (1983) 462 U.S. 696, 103 S. Ct. 2637, the seminal case concerning dog-sniff investigations, the D.E.A. agents utilized the airport dog
alert to obtain a search warrant. They did not effect an arrest based upon the dog's reaction
to the luggage.
In Kenner, however, the majority held that, [t]he dog's alert to the presence of marijuana provided Officer McDonald with probable cause to search Kenner's car. Kenner, supra, 703 N.E.2d at 1127 (emphasis supplied). I would disassociate myself from the breadth of this holding and would merely restate the following from my separate opinion in State v. Watkins (1987) Ind.App., 515 N.E.2d 1152, 1157 (Sullivan, J., dissenting), reh'g denied: In any event, I find no authority which would authorize an arrest based upon the targeting of certain luggage [or package] by a trained narcotics dog. Such might well justify further investigation or issuance of a search warrant but not an arrest or even a warrantless search.
I would add a further cautionary note with respect to the seeming reliance for probable cause placed by the majority upon the use of a drug smuggling profile. The use of allegedly objective and verifiable profiles as a predominant tool in the War Against Drugs is fraught with the danger of misapplication and risks a consequent violation of the right of privacy held by innocent persons. The factors set forth by the majority here as justification for the actions of the postal inspectors are consistent with innocent conduct upon the part of a sender and an addressee.
This conclusion is reached by analogizing the case to the use of drug courier profiles. Drug profiles list factors consistent with innocent passenger behavior. Use of drug profiles to identify narcotics traffickers has been seriously questioned. As one scholar has observed, [use of the drug courier profile] permits searches and seizures of travelers whose conduct
is facially innocent because they conform to a formula which purports to describe an entire
class of criminals. Morgan Cloud, Search and Seizure by the Numbers: The Drug Profile
and Judicial Review of Investigative Formulas, 65 B.U.L. Rev. 843, 920. Another has stated
that, [w]ith the entrenchment of the drug courier profile, agents may randomly stop citizens
for arbitrary reasons or for innocent differences in their appearance from fellow passengers.
Agents may then detain citizens until the agents gather enough evidence to 'call out the dogs'
or conduct a search themselves. Charles L. Becton, The Drug Courier Profile: All Seems
Infected to th' Infected Spy, As All Looks Yellow to the Jaundic'd Eye, 65 N.C. L. Rev.
417, 470-71. See Andrew Jay Flame, CRIMINAL PROCEDURE_Drug Courier
Profiles and Terry-Type Seizures, 65 Temp. L. Rev. 323, 335 (1992) (observing that,
[a]ll airline travelers meet several drug courier characteristics just by entering the terminal,
boarding the plane, and deplaning).
Packages sent through the mail may contain contraband. This however does not justify the seizure of all private packages merely because such packages may be argued to fall within an overly broad range of profile characteristics. As noted by Becton, supra at 471:
[The role of drug profiles] is not to establish in court that agents had a reasonable suspicion before the stop. Rather it should serve as a tool for DEA agents to use in identifying suspects, following or investigating further, and stopping suspects once reasonable suspicion actually exists. . . . [There should be] a showing in each case that the agent had reasonable suspicion to stop and detain a person from observations judged on their own merit, rather than as a part of a larger composite and all encompassing profile.
Although detention of a package and use of dogs to sniff is not so intrusive as is the detention of a traveling citizen, Fourth Amendment privacy implications are similarly involved.
To convict the Defendant of attempted [name object crime], the State must have proved each
of the following elements:
1. acting with the specific intent to commit [name object crime] by [set out elements of object crime as charged]
2. did [set out conduct charged as substantial step]
3. which was conduct constituting a substantial step toward the commission of the intended crime of [name object crime].
Indiana Pattern Jury Instruction 2.03 (Supp. 1995)
To convict the defendant, the State must have proved each of the following elements:
4. which was a substantial step toward the commission of the crime of escape, the intentional
fleeing from lawful detention.
Converted from WP6.1 by the Access Indiana Information Network