69 N.E.3d 950 (Ind.App. 2016), 15A04-1601-CR-148, Smith v. State
Judge | Brown, Judge. Robb, J., and Mathias, J., concur. Robb, J., and Mathias, J., concur. |
Parties | John M. Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff |
Citation | 69 N.E.3d 950 |
Date | 20 December 2016 |
Court | Indiana Appellate Court |
Docket Number | Court of Appeals Case 15A04-1601-CR-148 |
Page 950
Editorial Note:
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
Appeal from the Dearborn Superior Court. The Honorable Sally McLaughlin, Judge. Trial Court Cause No. 15D02-1402-FA-6.
ATTORNEY FOR APPELLANT: Leanna Weissmann, Lawrenceburg, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; James B. Martin, Deputy Attorney General, Indianapolis, Indiana.
Brown, Judge. Robb, J., and Mathias, J., concur.
MEMORANDUM DECISION
Brown, Judge
[¶1] John M. Smith appeals his conviction and sentence for conspiracy to deal heroin as a class A felony. Smith raises two issues which we revise and restate as: I. Whether the court abused its discretion in admitting evidence of a search; and
II. Whether Smith's sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
Facts and Procedural History
[¶2] On June 22, 2012, Indiana State Police Trooper James Wells was parked on a median cross-over on I-74 when, just before 11:00 a.m., he observed a car tailgating a minivan traveling east on I-74. As the car passed, Trooper Wells observed that the posture of the driver, later identified as Destanee Gaines, looked " a little unusual" as she was leaning forward off the seat with her mouth locked open and her eyes wide open " like she was kind of in a state of panic." Transcript at 141. Trooper Wells then initiated a stop for the traffic violation.
[¶3] Trooper Wells approached the passenger side door, greeted Gaines, and asked for her license. He observed that Gaines was " very, very nervous," that she was breathing heavily, and that her hands were shaking uncontrollably when she handed him her license. Id. at 142. He asked her who owned the car, and she said that it was a rental. Gaines handed him the rental agreement and had a " blank look on her face like she was in shock and said it's right there at the bottom." Id. at 143. Trooper Wells asked what was the name on the agreement, and Gaines said John Smith.
[¶4] He then asked Gaines to come back to his vehicle with him while he checked her license and registration, and Gaines sat in the front seat of his vehicle. He asked her about her trip, and she said she was coming from Chicago and was on her way home to Cincinnati. He asked her when she went to Chicago, and she started to say " we went up there," but then stopped midsentence and said, " I went up there last week," which was unusual. Id. at 144. He noticed that Gaines was struggling for answers to very simple questions and changing them midsentence and her nervousness was " just getting worse and worse." Id. at 145. In addition to her heavy breathing and shaking hands, Trooper Wells, who had received training on the " adrenalin dump" and the physical changes it causes, as well as observing nervousness, could see " her heart beating in her carotid." Id. at 145, 183.
[¶5] He asked her why she was so nervous, and she said that she was terrified of the highway. He did not believe her and asked her if she was traveling with anything illegal, to which she responded: " No sir." Defendant's Exhibit B1 at 6:15-6:20. He asked if she had any drugs with her, and Gaines answered that she probably had a joint in her purse. Trooper Wells said: " [Y]ou know, this nervousness seems like more than that, is there anything else in the car[?]" Transcript at 189. Gaines looked away from him, stared at the car, and just shook her head. He then placed her in handcuffs and searched the car.
[¶6] Trooper Wells first checked the trunk and noticed that there was no luggage or overnight bags or anything consistent with traveling for a week. He then found Gaines's purse and a small bag containing marijuana in the side pocket of a wallet on the passenger side of the seat. He continued searching the car and eventually observed that the mounting hardware, the screws, and the bolts in the door that hold the plastic shell to the metal shell were all missing paint, indicating they had been " tooled up." Transcript at 150. He rolled the window down, but the window stopped about an inch or two before going all the way down because it hit something. His training indicated that there was something at the bottom of the door preventing the window from going all the way down. He then spread the weather stripping open, shined his light into the door, and observed a package wrapped in green plastic and another package wrapped in a t-shirt.
[¶7] Trooper Wells then went to talk to Gaines about the contraband in the door, and she denied knowledge of it. He eventually took the door apart and retrieved three packages containing approximately three kilograms of heroin.
[¶8] Trooper Wells transported Gaines to the police department, and she eventually agreed to cooperate and call Aldon Webb. Gaines told Webb she was stopped by the police and arrested for possession of marijuana and her vehicle was impounded, that the rental company was going to retrieve it later the same evening, and she requested that Webb come and recover her personal belongings from the rental car.
[¶9] Numerous officers went to the towing business, and Detective Tim Wuestefeld posed as a tow truck driver. Webb later arrived at the towing business and spoke with Detective Wuestefeld, who told Webb that he could have access to the vehicle to retrieve Gaines's personal belongings. Other officers apprehended Webb, and Webb admitted that he was there to retrieve the heroin, that his supplier was Smith, and that Smith advised him to obtain certain tools to release the screw on the door.
[¶10] On February 6, 2014, the State charged Smith with conspiracy to commit dealing in heroin as a class A felony. On October 19, 2015, Smith filed a motion to dismiss and to suppress evidence. In his memorandum in support of his motion, he argued that the evidence was obtained improperly under the United States Constitution.
[¶11] After some discussion concerning the motion at the beginning of the trial on October 21, 2015, the court said the State would proceed with calling the first witness and that, if the court made the decision to suppress the evidence, then the case would be dismissed.
[¶12] Trooper Wells testified that he attended the Law Enforcement Academy in 2001, was assigned to the Versailles Post from 2001 to 2012, and received extensive training in criminal interdiction, human trafficking, and smuggling, had been doing interdiction enforcement since 2008, was assigned as a DEA task force officer, and had made 15,000 traffic stops since 2008. He testified that he received training in concealment methods and in noticing things that are inconsistent with the normal innocent motoring public, and that Gaines's level of nervousness was much higher than someone who would be pulled over for speeding. He also testified that rental cars are usually brand new and that it is rare to see any type of mechanical defect on a rental car. On cross-examination, Trooper Wells testified that when someone gives up a small amount of marijuana, it is for a reason, and that they call it a " drop dope," which means " give up a small amount, go to jail for a misdemeanor and keep something bigger hidden." Id. at 193.
[¶13] After the presentation of evidence, Smith's counsel presented argument regarding the motion to suppress and asked that the stop and resulting evidence be suppressed. The court found there was probable cause for the stop and noted Trooper Wells's training and observations about Gaines, and the car and her statement about marijuana, and concluded that Trooper Wells had probable cause to search the car. The court also found that the evidence need not be suppressed under the Indiana Constitution.
[¶14] Smith's counsel then moved for dismissal or acquittal and argued that there was no evidence of a conspiracy, and the court denied the motion. The jury found Smith guilty as charged.
[¶15] At the sentencing hearing, the court admitted the Government's Sentencing Memorandum from a federal case in the United States District Court for the Northern District of Illinois, in which the government alleged that Smith sold heroin to a confidential source on four occasions for a total of 193 grams of heroin in 2010 in exchange for $16,125. The government also referred to the arrest in the present case and evidence of narcotics trafficking subsequent to the offenses in the federal case. Smith spoke at the hearing and mentioned his family and taking youths off the street and signing them as artists to his record label. Smith also stated that he was not going to say that what he did was right but that he was not involved in dealing anymore and that " [i]t's not the drug that's killing; it's the cut that the street cutters put on this drug and here it is a street dealer he's seven (7) years but he's asking the Court to give me fifty (50)." 1
Id. at 533.
[¶16] The court observed that Smith was serving a sentence of 216 months on a conviction in the United States District Court for the Northern District of Illinois for four counts of distributing heroin for offenses prior to November 23, 2010. It noted that Smith was not without resources to earn an income legally and that he actively participated in the sale of drugs solely for profit. The court also stated that Smith's comments that it is the street dealer who is killing the individuals using...
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