Bigler v. State

• Decision Date: 27 October 1992
• Docket Number: No. 84A01-9110-CR-311,84A01-9110-CR-311
• Citation: 602 N.E.2d 509
• Parties: Wesley J. BIGLER, II, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 509

602 N.E.2d 509

Wesley J. BIGLER, II, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.

No. 84A01-9110-CR-311.

Court of Appeals of Indiana,

First District.

Oct. 27, 1992.

Rehearing Denied Jan. 5, 1993.

Transfer Denied Feb. 17, 1993.

Joseph K. Etling, Terre Haute, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Wesley J. Bigler, II appeals his conviction and sentence of two counts of dealing in a schedule II controlled substance, class B felonies.

We affirm.

Bigler raises the following issues in this appeal:

(1) whether evidence obtained pursuant to a search warrant for Bigler's residence was properly admitted;

(2) whether the trial court committed reversible error by giving instruction number 13;

(3) whether there was sufficient evidence of probative value to sustain Bigler's conviction of the two counts of dealing in a controlled substance; and,

(4) whether the sentence imposed violates the Double Jeopardy, Equal Protection or Due Process Clauses of the federal and state constitutions or is manifestly unreasonable.

I.

Admission of Evidence Seized from Residence

A.

Bigler argues first that the search warrant obtained by police was not based upon probable cause. In particular, Bigler contends that the affidavit submitted by law enforcement officers to obtain the warrant was deficient because it contained "no information whatsoever that would indicate that contraband associated with unlawful activity was present in his residence." Drawing upon the United States Supreme Court's Aguilar/ Spinelli decisions, ¹ Bigler argues that the issuing magistrate could not have relied upon the information which had been obtained from a police informant because the affidavit does not include either a history of the informant's reliability or extrinsic facts from the informant or other proper sources which would attest to the accuracy of the information provided. Bigler also contends that the information contained in the affidavit was not trustworthy because it was stale.

Bigler acknowledges that the Court has abandoned the two-pronged Aguilar/ Spinelli test in favor of an approach which permits an issuing magistrate to consider the "totality of circumstances." Now, in determining whether an application for a search warrant is supported by probable cause, the task of the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. Illinois v. Gates (1983), 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527. The magistrate considers the affidavit in its entirety, giving significance to each relative piece of information and balancing the relative weights of all the various indicia of reliability and unreliability attending the information. Massachusetts v. Upton (1984), 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721. Great deference is accorded the magistrate's determination by the reviewing court. Id. Our duty is simply to ensure that the magistrate had a "substantial basis" for concluding that probable cause existed, id., not to undertake a de novo determination of probable cause. Gates, 462 U.S. at 237, 103 S.Ct. at 2331-32. With this standard of review in mind, we examine the affidavit's contents.

1. The affidavit summarizes the information collected by Detective John Lewis since 1987 "from various confidential informants and law enforcement agencies in California, Connecticut and Indiana." Lewis suspects Bigler to be an active member of a multi-state motorcycle gang known as the Diablos and an import and wholesale amphetamine dealer within the Diablos' interstate distribution ring. Bigler's favored method of communicating with his distributors is believed to be by radio pager. After being contacted through the pager, Bigler typically arranges a meeting at which he will deliver amphetamines, obtain payment, or both. Bigler often will "front" amphetamines to his distributors who then sell the amphetamines and repay him. Bigler receives delivery of his supply from Chuck Persinger, a high-ranking Diablo.

In October, 1988, Lewis learned from Meriden, Connecticut police that Phil Grimm, a member of the Connecticut branch of the Diablos, had fled that state with $250,000 in drug money after two members of the gang had been arrested for their involvement in the sale of amphetamines. Grimm had relocated to Vigo County, Indiana. Lewis identified Bigler's residence and residential phone number and obtained a court-approved pen register of Grimm's residential phone. Grimm had repeated communications with Bigler via Bigler's residential phone. According to Lewis, Grimm suffered "an amphetamine related death" in November, 1989. A Vigo County Sheriff's report indicates that Bigler reported the death and Grimm's home was left in Bigler's custody when emergency personnel departed with the body.

2. The affidavit details the results of certain amphetamine transactions conducted by Officer Bensinger, the other affiant, or observed and recorded by the department's other narcotics officers. Between October 19 and October 26, 1990, Officer Bensinger made three purchases involving a total of six grams of amphetamine from a Marcella Albright. On November 13, 1990, he completed a fourth transaction during which he purchased seven grams of amphetamine and arrested Albright. Albright named Paula Milner as her source and stated she owed Milner $550.00 for the drugs Milner had "fronted." That same day, the officers arranged for Albright to pay off Milner. The transaction was recorded and Milner was arrested with the buy-money and amphetamines in her possession.

3. The affidavit recites the information obtained from Milner following her arrest. Milner implicated "Wes" Bigler as her source and confirmed that this individual was a member of the Diablos gang, an organization in which her brother belonged. Over the two-year period Milner had been dealing, Bigler had delivered to her one-half to two ounces of amphetamine every week to two weeks. Milner received her last delivery of approximately 1/2 ounce on November 10, 1990, 1/4 of which was in police custody, having been confiscated from Albright. Milner would contact Bigler by pager or at home, he would "front" the drugs to her, and then they would schedule a separate meeting at which Milner would repay Bigler and obtain more drugs. Lewis asserts that Milner displayed an intimate knowledge of "crank" dealing including correct weights, prices and terminology; Milner described in detail the layout of Bigler's house and its location south of the federal penitentiary; Milner responded to questioning quickly and coherently and volunteered information about Bigler without prompting; and Milner accurately described Bigler's physical appearance.

4. The affidavit abstracts a phone call made by Milner to Bigler at the number identified by Lewis for Bigler through the pen register and listed in the GTE phone directory as Bigler's residential number, which Lewis witnessed and recorded. Milner recognized Bigler's voice, Bigler responded to "Wes" and Bigler appeared to recognize "Paula." When Milner told "Wes," that she had the money for the "roof," Bigler acknowledged that Milner owed him money and suggested that they meet the next day at her workplace so that she could repay him. Milner did not work the next day so they arranged for her to phone instead. No contact was made between Milner and Bigler the following day. Milner used the term "roof" because she never used common names for drugs in her conversations with Bigler "for security reasons."

5. The affidavit contains statements of opinion from Lewis based upon his experience as a narcotics officer concerning the types of evidence of drug dealing commonly found in the residences of dealers, including business and financial records, proceeds, paraphernalia used for distributing controlled substances, and cutting agents.

We focus our inquiry immediately upon the information obtained from Milner. The affidavit recites many of the underlying circumstances which led Lewis to believe that Milner is credible and her information reliable. Lewis indicates that from his own investigation, he knows what Bigler looks like, where he lives, what his phone number is, and his modus operandi. Whatever Lewis' source, Milner's information corroborates Lewis' pre-existing knowledge. She properly describes Bigler, his residence, his membership in the Diablo organization, and his method of operation. ² Because Milner is accurate about these facts, it is reasonable to infer that she is probably correct about other facts as well. Gates, 462 U.S. at 245, 103 S.Ct. at 2335. Moreover, the affidavit tells the magistrate how Milner came about her information. She engaged in transactions with Bigler. Descriptions of alleged wrongdoing observed firsthand are entitled to greater weight than might otherwise be the case. Gates, 462 U.S. at 245, 103 S.Ct. at 2335.

The content of the telephone call to Bigler in Lewis' presence, at the number known by Lewis to be Bigler's residential phone number since 1988, is set out with sufficient specificity to confirm that Bigler and Milner in fact know each other, that Milner owes Bigler money, that Bigler obtains payment of debts by arranging a meeting, and that the Wes Bigler implicated by Milner is the same Bigler who communicated with and reported the amphetamine-related death of another Diablo member. That Bigler was an associate of a known user of amphetamines makes Milner's claim that Bigler is her source of amphetamines much less subject to skepticism than would be such a charge against an individual without such a history. Jones v. United...