Evidence seized in a search must be excluded if the probable cause for that search is tainted by prior unlawful conduct. Morris v. State (1980) 272 Ind. 467, 399 N.E.2d 740; Hall v. State (1976) Ind., 346 N.E.2d 584; Pirtle v. State (1975) Ind., 323 N.E.2d 634; Clark v. State (1980) 4th Dist., Ind. App., 401 N.E.2d 773; Stinchfield v. State (1977) 1st Dist., Ind. App., 367 N.E.2d 1150. Evidence of this nature is admissible only if it was obtained by means independent of the prior tainted evidence or information. See Myers v. State (1983) Ind., 454 N.E.2d 861.
Watt and Senteney do contend the affidavit is otherwise defective because it is tainted by illegality — the statements made therein were the product of an initial unlawful seizure. Watt and Senteney cast their lot with Stinchfield v. State (1977), Ind. App., 367 N.E.2d 1150. This case and Stinchfield are distinguishable.
Having found constitutional error, we must address whether that error was prejudicial to the defendant. Stinchfield v. State, 174 Ind.App. 423, 432, 367 N.E.2d 1150, 1155 (1977). “Only where we can state beyond a reasonable doubt that the improperly admitted evidence did not contribute to the defendant's conviction is the error harmless.”
Having found constitutional error, our inquiry turns to whether that error was prejudicial to the defendant. Stinchfield v. State, 174 Ind. App. 423, 432, 367 N.E.2d 1150, 1155 (1977). A Fourth Amendment error such as one which occurred in the instant case is subject to a constitutional harmless error analysis.
The mere fact that they were unaware of Johanningsmeir's true status as an agent does not, in itself, vitiate that consent. Id. at 207, 87 S.Ct. at 425, 17 L.Ed.2d at 314; State ex rel. Medical Licensing Board v. Stetina (1985), Ind. App., 477 N.E.2d 322, 329, trans. denied; Stinchfield v. State (1977), 174 Ind. App. 423, 431, 367 N.E.2d 1150, 1155. On November 30, 1984, a search warrant, reflecting Johanningsmeir's observations, was obtained to search the Flanagan Lane compound.
The mere fact that Stetina was unaware of the agents' true identities does not, in itself, vitiate that consent. Lewis v. United States (1966), 385 U.S. 206, 207, 87 S.Ct. 424, 425, 17 L.Ed.2d 312, 314; Stinchfield v. State (1977), 174 Ind. App. 423, 431, 367 N.E.2d 1150, 1156. Stetina also challenges the validity of the search warrant obtained by the State for the search of her home.
Finally, in the review of a suppression hearing, we will not weigh the evidence, nor adjudge the credibility of witnesses. Stinchfield v. State, (1977) 174 Ind. App. 423, 367 N.E.2d 1150. We are of the opinion that the above authorities make the question of probable cause and the attack upon the truth of the statements comprising probable cause, a question of fact to be determined by the trial court.