State v. Vance, Court of Appeals Case No. 18A-CR-1746

• Docket Nº: Court of Appeals Case No. 18A-CR-1746
• Citation: 119 N.E.3d 626
• Case Date: February 13, 2019
• Court: Court of Appeals of Indiana

119 N.E.3d 626

STATE of Indiana, Appellant-Plaintiff,
v.
Dusten T. VANCE, Appellee-Defendant.

Court of Appeals Case No. 18A-CR-1746

Court of Appeals of Indiana.

Filed February 13, 2019

Case Summary

1] The State of Indiana appeals the trial court's suppression of evidence found during a search of the residence of Dusten Vance ("Vance"), based upon the trial court's determination that the search warrant was issued without probable cause. The State contends that the warrant was supported by probable cause developed in a series of controlled buys and that, even if probable cause was lacking, the officers acted in good faith and the exclusionary rule should not apply. We affirm.

Facts and Procedural History

[2] During April of 2018, Investigator Tyler Parks of the Delaware County Sheriff's Office ("Officer Parks"), assisted by a confidential informant ("CI"), was involved in three state-sponsored buys of cocaine. On April 13, April 20, and April 23, 2018, CI was searched and provided with photocopied money. On each occasion, CI contacted an individual described by law enforcement as the "Target." (Tr. at 17.) On the first occasion, Target went to a hotel before providing CI with cocaine.¹ On the second occasion, Target went to a residence before providing CI with cocaine.

[3] On the third occasion, Target was picked up at a residence and driven to a street corner, where he exited the vehicle and began to walk north. Target was under police surveillance at that time, but the visual surveillance was interrupted for a

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short time. When visual surveillance was restored, officers observed Target leaving Vance's residence. Target provided CI with 1.5 grams of cocaine. Target was then taken back to the residence where he had been picked up.

4] Officer Parks executed an affidavit of probable cause for a search warrant of an address on Turner Street. He stated that "This house has an occupant of Dustin [sic] Vance aka (dustball)." (App. Vol. II, pg. 44.) The affidavit represented that members of the Delaware County Narcotics Unit had conducted "controlled cocaine purchases" and these were "from the same unnamed target." (Id. at 43-44.) The search warrant for Vance's residence was granted and, upon its execution, officers found cocaine and marijuana.

[5] The State charged Vance with Possession of Cocaine² and Maintaining a Common Nuisance.³ Vance moved to suppress the evidence obtained during the execution of the search warrant, alleging that material facts had been omitted from the affidavit for a search warrant and the warrant was unsupported by probable cause. At the suppression hearing, conducted on July 5, 2018, Vance elicited evidence to show that he was not Target and Target had not been searched as part of the state-sponsored buys. Vance argued that the affidavit for the search warrant omitted this material information and that the State had, in fact, conducted what was "really an uncontrolled buy." (Tr. at 32.)

[6] On July 6, 2018, the trial court issued its suppression order. Having found that Target was never searched, the trial court concluded:

[T]he officers had no knowledge of whether the target had the drugs on him when he entered into or exited from the locations to which he was directing the CI.

The target simply entering into a location does not establish that, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found.

(App. Vol, II, pg. 85.) The State dismissed the charges against Vance, without prejudice, and brought this appeal pursuant to Indiana Code Section 35-38-4-2(5).⁴

Discussion and Decision

[7] Because the request for a warrant is necessarily made ex parte , the most basic notions of due process require that an attack of a search warrant affidavit be permitted. Watt v. State , 412 N.E.2d 90, 95 (Ind. Ct. App. 1980). Here, Vance attacked the probable cause affidavit as misleading because no controlled buy had, in fact, been conducted. He contended that the remaining asserted facts (Target had exited Vance's residence before giving CI cocaine and the residence had previously been associated with illicit drugs) did not amount to probable cause to support the search of his residence. The trial court conducted an evidentiary hearing and agreed with Vance that police had conducted inadequate controlled buys, in that Target had not been searched. Based upon this factual development, the trial court found a lack of probable cause and granted Vance's motion to suppress.

[8] We have recognized:

[119 N.E.3d 630

If a defendant establishes by a preponderance of the evidence that "a false statement knowingly and intentionally, or with a reckless disregard for the truth, was included by the affiant in the warrant affidavit, ... and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."

Stephenson v. State , 796 N.E.2d 811, 815 (Ind. Ct. App. 2003) (quoting Franks v. Delaware , 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (omission original to Stephenson ) ), trans. denied .

[9] We review a trial court's ruling on a motion to suppress under a standard similar to that of other sufficiency issues, that is, whether, without reweighing the evidence, there is "substantial evidence of probative value that supports the trial court's decision." McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014) (citing State v. Richardson , 927 N.E.2d 379, 385 (Ind. 2010) ). We consider evidence favorable to the trial court's ruling and "substantial uncontradicted evidence to the contrary." Id. (citing Holder v. State , 847 N.E.2d 930, 935 (Ind. 2006) ). If the trial court made findings of fact, they are reviewed only for clear error. Id. However, the ultimate ruling as to the constitutionality of a search is a legal conclusion that we review de novo. Id.⁵

[10] The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, protects citizens from unreasonable searches and seizures, and demands that no search warrant be issued unless it is supported by probable cause. Cheever-Ortiz v. State , 825 N.E.2d 867, 871-72 (Ind. Ct. App. 2005). Probable cause is a fluid concept, which is decided based upon the facts of each case. Id. at 872. "Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime." Esquerdo v. State , 640 N.E.2d 1023, 1029 (Ind. 1994). Probable cause requires more than a prima facie showing. Fry v. State , 25 N.E.3d 237, 244 (Ind. Ct. App. 2015).

11] In this case, narcotics officers had been working with CI, who in turn contacted Target. Target was transported to, or near, three different locations on three different occasions. Target then supplied cocaine to CI. It is not known whether Target had cocaine on his person prior to visiting any of those locations, because he, unlike the CI, was never searched. It is not known whether Target acquired cocaine near the Turner Street residence he was seen exiting, since visual surveillance was interrupted. Nevertheless, the State claimed that the third transaction was part of a series of "controlled buys."

[12] "A properly conducted controlled buy will permit an inference the defendant had prior possession of a controlled substance." Watson v. State , 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005). A controlled buy occurs when an undercover police officer or a private citizen acting as an agent of the police under strict police

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