1、t person capable of causing physical harm. CS#3 believes a person named Tony Cardwell is supplying Frasier with marijuana for resale.4On October 31, 2000 I interviewed a person who lives close to Larry Frasier. (CS#4) This person wishes to remain anonymous because they live nearby and are afraid of
2、retaliation by Frasier. This person stated he/she had been told that Frasier dealt in drugs and was growing marijuana in his garage. CS#4 told me the name of the person who told him/her this and I found their source of information to be CS#1 from above. CS#4 believes this is probably true because CS
3、#4 has in the past seen a lot of traffic in and out at the residence. CS#4 said he/she also believed it to be true because a few weeks ago Frasier obscured the windows on the garage so nobody can see inside. CS#4 said it looked like Frasier had painted the glass windows. CS#4 said that about 1 1/2 w
4、eeks ago they saw a person they knew as Tony Cardwell at the Frasier, sic outside the house, talking with Frasier. CS#4 said Frasier had a gun and CS#4 believed he/she witnessed a drug deal but couldnt articulate why he/she though sic that except that Frasier had a gun. CS#4 also told me that his/he
5、r spouse was invited into the Frasiers residence by Larry Frasier. Frasier tried to show the spouse pornographic pictures on his computer by sic the spouse declined and said he/she didnt want to see them.On November 1, 2000 I drove past the Frasier residence. It appears to me that the windows on the
6、 overhead garage door are covered or painted black. I saw a stack of black plastic pots behind the garage. I have seen this type of pots sic many times in the past, during other marijuana investigations, with marijuana plants in them. I viewed the residence with a thermal imager, a device that shows
7、 temperature differences between objects. The overhead door to the garage showed signs of higher temperature. What I saw is consistent with the heat pattern that would be present with an indoor marijuana grow where the lights used for the plants produce heat. I have been trained and certified in the
8、 use of a thermal imager and its sic application during investigations of indoor marijuana grows.I checked for criminal history for Larry Frasier through NCIC and found that Frasier was arrested by the Indiana State Police of the Evansville Post for smuggling marijuana. This arrest was in 1978 and s
9、hows no disposition. In my training and experience people who deal in illegal drugs keep records of transactions to show who owes money for drugs bought on credit. The records may be written or kept on a computer. It is also my experience that people who grow marijuana frequently take photographs or
10、 make videotape recordings of their marijuana plants. I have also learned in my training and experience that people who deal illegal drugs frequently keep the drugs in a 5safe, lock-box, or locked room in their residence to keep them secure from visitors and/or their children.Based upon the above-de
11、scribed information, which I believe to be true, I believe evidence of possession of marijuana, dealing in marijuana, and/or child pornography is located in the residence of Larry Frasier. The residence is located at 6390 Oriole Drive, Brown County, Indiana. From the road the residence appears to be
12、 a one-story frame structure with attached garage.I am requesting a Search Warrant be issued for the above-described residence, outbuildings, and premises. I am asking for authorization to search the residence as well as safes, lock boxes, locked rooms, computers, computer hard drives, computer disk
13、s or any other device used to store digital information, photographs, videocassette tapes, and photographic negatives.I am asking for authorization to seize any evidence related to possession of marijuana, dealing marijuana, and/or child pornography, including but not limited to: marijuana plants, p
14、rocessed marijuana, marijuana packaging materials and equipment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana, and pornographic images depicting persons believed to be children.” A
15、ppendix at 25-27. Based upon this affidavit, Brown County Circuit Court Judge Judith A. Stewart issued a search warrant which directed the police to enter Frasiers home and garage and to search for and seize the following:“Marijuana plants, processed marijuana, marijuana packaging materials and equi
16、pment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana . . . .”1 Id. at 28. On November 1, 2001, Detective Southerland and other officers executed the 1 Following this line of text on
17、 the search warrant, the following words have been marked out by the issuing Judge, “and pornographic images depicting persons believed to be children.” Id. at 28. Thus, the search warrant did not authorize the search and seizure of such. 6warrant. When Southerland entered the Frasier residence, he
18、went to the bedroom where a personal computer was located. Southerland first noticed an icon labeled “Smoke” located on the computers “desktop.”2 Upon opening this file to view it, Southerland discovered that it included a letter to a company which sold a product purporting to allow one to pass a ur
19、ine drug screen. Southerland then began opening documents listed in the “Documents” sub-menu of the computers “Start” menu. This sub-menu lists recently opened documents on the computer. The first document Southerland opened from this list contained an image of a young, nude female. Southerland beli
20、eved that the image was evidence of child pornography and printed the image. He then opened “two or three more files,” before he realized that the files listed in the “Documents” menu likely contained images. Transcript at 34. Southerland told another deputy what he had found and asked that deputy t
21、o seek a warrant to search for evidence of child pornography on the computer. Such a warrant was issued the following day. On November 6, 2000, the State charged Frasier with one count of Possession of Marijuana as a Class D felony, one count of Possession of Marijuana as a Class A misdemeanor, and
22、one count of Possession of Child Pornography as a Class A misdemeanor. On August 23, 2001, Frasier filed a motion to suppress the evidence seized as a result of the search of his house and computer. A hearing on this motion was held on February 21, 2002, and on May 12, 2002, the trial court entered
23、an order denying3 2 This refers to the representation of a desktop used by many computer graphical user interfaces, not a physical desktop upon which the computer was itself located. 3 The trial court denied the motion to suppress with the exception of “any evidence derived or obtained from image fi
24、les from the Defendants computer opened and seized by law enforcement subsequent to the first file being opened which contained images the officers believed to be child 7the motion. Frasier moved to certify the suppression issue for interlocutory appeal, which the trial court granted on May 31, 2002
25、. See Ind. Appellate Rule 14(B)(1). This court accepted appellate jurisdiction of the appeal on August 26, 2002. See App. R. 14(B)(2). IValidity of Search WarrantFrasier claims that the issuance of the search warrant was erroneous because it was not supported by probable cause. “In deciding whether
26、to issue a search warrant, the task of the issuing magistrate is simply to make a practical, commonsense 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. Illinois v.
27、Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The duty of the reviewing court is to determine whether the magistrate had a substantiecord reveals that on November 1, 2000, Brown County Sheriffs Department Detective Scott Southerland prepared an affidavit seeking a search war
28、rant authorizing a search of Frasiers residence. The affidavit being essential to the resolution of this case, we set forth the contents thereof: “I, Scott Southerland, swear or affirm under penalties for perjury that the following is true.I am a law enforcement officer with the Brown County Sheriff
29、s Department. In that capacity I have received criminal information concerning Larry R. Frasier Jr. who resides at 6390 Oriole Drive, Nineveh, Indiana 46164.Approximately ninety days ago, I talked with Deputy Bernie McGaha who told me he had received information from a concerned citizen, a person who wished to remain anonymous. (CS#1)
