Iddings v. State

Decision Date12 August 2002
Docket NumberNo. 06A04-0107-CR-286.,06A04-0107-CR-286.
Citation772 N.E.2d 1006
PartiesWendell B. IDDINGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Deborah K. Smith, Martin & Smith Thorntown, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Wendell Iddings appeals his convictions and sentences for two counts of dealing in a schedule II controlled substance by delivery, dealing in a schedule II controlled substance by manufacturing, unlawful possession of a firearm by a serious violent felon, dealing in a sawed off shotgun, and possession of chemical precursors with intent to manufacture methamphetamine.1 We affirm.

Issues

We restate the issues before us as:

I. whether the trial court properly denied Iddings' motion to suppress evidence recovered pursuant to a search warrant issued for his residence and garage;

II. whether the trial court erred in permitting the State to introduce into evidence and play for the jury an audiotape of an alleged controlled buy at Iddings' house;

III. whether there is sufficient evidence that Iddings possessed a sawed off shotgun and chemical precursors of methamphetamine;

IV. whether Iddings' conviction for possession of chemical precursors with intent to manufacture methamphetamine is a lesser included offense of dealing in methamphetamine by manufacturing and must be vacated; and

V. whether Iddings' forty-eight year executed sentence is manifestly unreasonable.

Facts

The evidence most favorable to the convictions and the trial court's rulings reveals that on April 28, 2000, police stopped and detained Gary Allen as part of an ongoing investigation after Allen left a residence where drug dealing and manufacturing was suspected to be occurring. Police discovered a substantial quantity of drugs and firearms in Allen's vehicle. Boone County Sheriff's Detective Albert Hendrix told Allen that he would not be placed under arrest and taken to jail at that time if he agreed to work with law enforcement as a confidential informant. Allen did so and mentioned Iddings as a manufacturer and dealer of methamphetamine.

Police arranged for Allen to make a controlled buy of methamphetamine at Iddings' residence on May 1, 2000. Allen and his vehicle were searched before he went to the residence and he was given $100 and outfitted with a Kel-Set transmitting device. Allen did not immediately seek to complete the drug purchase when he arrived at Iddings' home. Instead, Allen, who until recently had lived with Iddings, spent much time repairing his car, which had overheated on his way to the residence. He worked out of a detached garage where he had told police the methamphetamine cooking took place. He also engaged in conversation both related and unrelated to drugs with Iddings. It is impossible to discern from the Kel-Set recording alone whether Iddings agreed to sell methamphetamine to Allen. Allen did ask to purchase a gram of the drug from Iddings, however, and shortly afterwards he left the residence and met with police at a prearranged location. Allen and his vehicle were again searched and he gave what turned out to be a quantity of methamphetamine and $50 to police, telling them he had purchased the drug from Iddings for $50.

After these events, police sought a search warrant for Iddings' residence and the garage, and one was issued for both following a probable cause hearing held on May 2, 2000. Before executing the warrant, however, police asked Allen to make another attempt to purchase methamphetamine from Iddings. He did so on May 3, 2000, although he was not wearing a Kel-Set transmitter on this occasion because of Iddings' asking Allen during the previous encounter on May 1 whether he was wearing a wire. According to Allen's testimony, however, Iddings did not sell methamphetamine to Allen on this occasion, but instead simply gave the drug to Allen without Allen directly asking for it. On May 5, 2000, police executed the search warrant for Iddings' residence. Inside the house, police recovered several firearms, including a sawed off shotgun. Primarily in the garage, police found extensive evidence of a methamphetamine lab, including what was later revealed to be the drug itself and large amounts of chemicals and other items associated with methamphetamine manufacturing, such as approximately thirty boxes of pseudoephedrine tablets, lithium batteries, coffee filters, over sixty cans of engine starting fluid, denatured alcohol, and soda pop bottles with tubes coming out of them that appeared to be hydrogen chloride gas converters.

The State charged Iddings with three counts of dealing methamphetamine, Class B felonies. Two of the counts were based upon the alleged deliveries to Allen and one was based upon manufacturing of the drug. Iddings was also charged with possession of a firearm by a serious violent felon, a Class B felony, because of a 1979 conviction for armed robbery. Iddings was further charged with dealing in a sawed off shotgun, possession of methamphetamine chemical precursors with intent to manufacture the drug, and maintaining a common nuisance, all Class D felonies. Iddings filed a motion to suppress all of the evidence recovered pursuant to the search warrant; the trial court denied the motion.

After a jury trial conducted on January 9-12, 2001, Iddings was convicted of all counts. The trial court imposed sentence as follows: fifteen years for each of the four Class B felonies and three years for the sawed off shotgun and chemical precursors convictions. The dealing by delivery counts were to be served concurrently with each other, the dealing by manufacturing count was to be served concurrently with the chemical precursors count but consecutive to the dealing by delivery counts, and the serious violent felon and sawed off shotgun counts were to be served consecutively to each other and the other counts. The net result is an executed sentence totaling forty-eight years. Iddings now appeals.

Analysis
I. Denial of Motion to Suppress

Iddings first argues that the trial court improperly denied his motion to suppress, claiming the issuance of the search warrant was based on unreliable hearsay and an inadequate controlled buy. Reviewing courts, which include both the trial court ruling on a motion to suppress evidence and the appellate court reviewing that decision, are to focus on whether a "substantial basis" existed for a warrant authorizing a search or seizure, and doubtful cases are to be resolved in favor of upholding the warrant. Rios v. State, 762 N.E.2d 153, 156 (Ind.Ct.App.2002) (citing Houser v. State, 678 N.E.2d 95, 98 (Ind. 1997)). We review the trial court's "substantial basis" determination de novo, but give significant deference to the probable cause determination of the magistrate who initially issued the search warrant, focusing on whether reasonable inferences drawn from the totality of the evidence support the determination. Id. "A presumption of validity of the search warrant exists, and the burden is upon the defendant to overturn that presumption." Id. at 157 (quoting Snyder v. State, 460 N.E.2d 522, 529 (Ind.Ct.App.1984)).

We agree with Iddings that there are causes for concern regarding the May 1, 2000, "controlled buy," both in how it was executed and how Detective Hendrix related it to the judge who was asked to issue the search warrant for Iddings' residence. We have described the requirements of a controlled buy as follows:

A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband. Except for what actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction.

Methene v. State, 720 N.E.2d 384, 389-90 (Ind.Ct.App.1999) (quoting Flaherty v. State, 443 N.E.2d 340, 341 (Ind.Ct.App. 1982)).

In the present case, Detective Hendrix testified at the search warrant probable cause hearing that Allen and his vehicle were searched before he drove to Iddings' residence, then:

we watched him go into the residence. During that time, the Confidential Informant was wearing a wire, which is a piece of equipment used by Police Officers in Narcotics investigations to tape-record and be able to listen to any transaction that's being made while, while the Informant's in the residence. There was conversation inside the residence about firearms and Methamphetamine. It ended-up that the Informant purchased one gram of Methamphetamine, uh, and paid for it. I believe he paid $50.00 in U.S. Currency to Wendell Iddings.

App. p. 61. Detective Hendrix also testified that Allen and his vehicle were searched after he left Iddings' residence. There are several difficulties with this testimony. First, there is no indication that all entrances to the residence were closely monitored throughout the transaction, as required by Methene and Flaherty. Second, there is no indication that Allen went "directly" to the residence; rather, Allen spent much time working in and around a detached garage where he claimed to have previously made methamphetamine before entering the residence and asking to buy the drug from Iddings, which fact was not mentioned during the probable cause hearing.

Third, Detective Hendrix' testimony is misleading in that it seems to indicate that an agreement to sell methamphetamine by Iddings can be heard on the tape recording. We have listened to the tape and have discerned that no such agreement can be heard. At the hearing on the motion to...

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