MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Jan 31 2018, 10:22 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick J. Smith                                         Curtis T. Hill, Jr.
Bedford, Indiana                                         Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David R. Deel,                                           January 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         59A01-1704-CR-939
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven L. Owen,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         59C01-1701-F2-27



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018            Page 1 of 16
                                             Case Summary
[1]   A jury convicted David R. Deel of level 2 felony dealing in methamphetamine,

      level 3 felony possession of methamphetamine, level 6 felony maintaining a

      common nuisance, and class B misdemeanor possession of marijuana, and

      found him to be a habitual offender. Deel now appeals, challenging the trial

      court’s admission of evidence obtained pursuant to the search of his property.

      He contends that the warrant was not supported by probable cause and that the

      ensuing search therefore violated his constitutional protections against

      unreasonable search and seizure as set forth in the Fourth Amendment to the

      U.S. Constitution as well as Article 1, Section 11 of the Indiana Constitution.

      We affirm and remand with instructions to vacate Deel’s conviction for level 3

      felony possession of methamphetamine based on double jeopardy principles.


                                 Facts and Procedural History
[2]   Detective Joshua Allen is an undercover drug enforcement detective with the

      Indiana State Police. In the course of his employment, he has worked on more

      than 500 drug investigations. In November 2016, he received information from

      a confidential informant (“CI”) concerning Deel’s involvement in selling

      methamphetamine (“meth”). Although he had successfully worked with the CI

      on several previous occasions, he declined to work with him at that time

      because CI was seeking leniency in another matter. A month later, he was

      approached by State Police Trooper Mitchell Weir, a former drug enforcement

      detective, who had received information concerning Deel’s involvement in

      dealing large amounts of crystal meth with Chad White, a/k/a “Baldy.” Tr.

      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 2 of 16
      Vol. 3 at 34-35. Detective Allen searched Deel’s Facebook page and found

      information concerning Baldy. Around that same time, State Police Detective

      Shane Staggs also contacted Detective Allen and asked whether he was

      investigating any dealing activity by Deel.


[3]   On January 1, 2017, a cooperative citizen (“Citizen”) contacted Detective Allen

      and reported that he1 had been purchasing meth from Deel twice a week for the

      preceding four months but that he was trying to clean up his life. At that time,

      Detective Allen had known Citizen for over twenty years and knew that Citizen

      had recently provided police with information that had led to the arrests of two

      people. Citizen identified Deel as his seller through a BMV photo and told the

      detective that Deel constantly smoked marijuana and/or used meth. He said

      that he always purchased meth from Deel at the same location in rural Orange

      County and that Deel would often front him the drug and tell him to go make

      some money and pay him later. Citizen described the property’s layout as one

      trailer, with two popup campers behind it. According to Citizen, one of the

      campers was used for storing drugs and the other was essentially Deel’s

      residence.


[4]   After reporting this information to Detective Allen, Citizen accompanied the

      detective in an unmarked vehicle and showed him the way to the property.

      Detective Allen described the location as a “very remote area …. in the middle




      1
        The record does not indicate Citizen’s gender, and Detective Allen’s affidavit in support of his request for a
      search warrant uses “he/she.” We use masculine pronouns for simplicity’s sake.

      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018             Page 3 of 16
      of nowhere.” Tr. Vol. 4 at 40-41. As soon as they reached the location, the

      detective backtracked, dropped off Citizen, and returned to the property. He

      noted that the property was laid out exactly as Citizen had described, with one

      trailer in front and two popup campers behind it. As he approached the door of

      the trailer, he detected an increasingly pungent odor of marijuana. An

      unidentified man answered the door, and Detective Allen heard other voices

      inside. The detective expressed interest in purchasing one of about fifteen

      vehicles sitting on the property, but the man said that he was not the owner and

      instructed him to leave the property and not return.


[5]   The next day, Detective Allen filed a five-page affidavit, seeking a warrant to

      search the property. The affidavit included maps and photographic exhibits

      depicting the trailer and campers to be searched. The trial court found probable

      cause and issued a search warrant. The officers executed the search warrant

      and discovered in one of the popup campers twenty-eight grams of crystal meth

      in a drawer next to Deel’s birth certificate. They also found approximately one

      pound of marijuana, various paraphernalia such as digital scales and baggies,

      and a wallet containing Deel’s Indiana photo identification card. Deel was

      present, arrested, and Mirandized. During his statement to the officers, he

      made several references indicating that he considered the camper “his camper.”

      See Tr. Vol. 4 at 183 (Detective Staggs’s trial testimony).


[6]   The State filed an information charging Deel with level 2 felony dealing in

      methamphetamine, level 3 felony methamphetamine possession, level 6 felony

      marijuana possession, and level 6 felony maintaining a common nuisance. The

      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 4 of 16
      State amended the information to add a habitual offender count. Deel filed a

      motion to suppress the evidence obtained pursuant to the search warrant, which

      the trial court denied following a hearing, and the trial court admitted the

      evidence at trial over Deel’s objection. The jury convicted Deel on all counts,

      except that it convicted him of marijuana possession as a lesser included, class

      B misdemeanor offense. The trial court entered judgment of conviction on all

      counts and sentenced Deel to concurrent terms totaling thirty years, with an

      additional twenty years for his habitual offender finding. In its sentencing

      order, the court vacated Deel’s sentence for level 3 felony methamphetamine

      possession. Deel now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[7]   Deel challenges the trial court’s admission of evidence obtained during the

      search of his property. We review a trial court’s decision to admit or exclude

      evidence using an abuse of discretion standard. Collins v. State, 966 N.E.2d 96,

      104 (Ind. Ct. App. 2012). An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before it or where the trial court misinterprets the law. Id. In conducting our

      review, we neither reweigh evidence nor judge witness credibility. Robinson v.

      State, 5 N.E.3d 362, 365 (Ind. 2014). Where the issue concerns the

      constitutionality of a search or seizure, it presents a question of law, which we

      review de novo. Id. Similarly, we review determinations of reasonable

      suspicion and probable cause using a de novo standard. J.K. v. State, 8 N.E.3d

      222, 228 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 5 of 16
            Section 1 – A substantial basis supports the trial court’s
          finding of probable cause for the search warrant under the
                             Fourth Amendment.
[8]   According to the Fourth Amendment to the United States Constitution, “[t]he

      right of the people to be secure in their persons, houses, papers, and effects,

      against unreasonable searches and seizures, shall not be violated, and no

      Warrants shall issue, but upon probable cause, supported by Oath or

      affirmation, and particularly describing the place to be searched, and the

      persons or things to be seized.” The Fourth Amendment’s fundamental

      purpose is to protect a person’s reasonable expectation of privacy. Holder v.

      State, 847 N.E.2d 930, 935-36 (Ind. 2006). “A principal protection against

      unnecessary intrusions into private dwellings is the warrant requirement

      imposed by the Fourth Amendment on agents of the government who seek to

      enter a residence for the purposes of search or arrest.” State v. Straub, 749

      N.E.2d 593, 597 (Ind. Ct. App. 2001).


[9]   Deel challenges the sufficiency of the search warrant affidavit to support the

      trial court’s finding of probable cause to issue the warrant. “Probable cause to

      search exists where the facts and circumstances within the knowledge of the

      officer making the search, based on reasonably trustworthy information, are

      sufficient to warrant a person of reasonable caution in the belief that an offense

      has been or is being committed.” State v. Hawkins, 766 N.E.2d 749, 751 (Ind.

      Ct. App. 2002), trans. denied. “In deciding whether to issue a search warrant,

      the task of the issuing magistrate is to determine whether a sufficient factual


      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 6 of 16
       basis exists to permit a reasonably prudent person to believe a search of the

       premises will uncover evidence of a crime.” Ogburn v. State, 53 N.E.3d 464,

       471-72 (Ind. Ct. App. 2016), trans. denied. “The magistrate’s decision should be

       practical and made in light of all the circumstances set forth in the affidavit

       accompanying the warrant application.” Id. at 472.


[10]   In conducting our review, “our duty ‘is simply to ensure that [there was] a

       substantial basis’ for finding probable cause.” Watkins v. State, 85 N.E.3d 597,

       603 (Ind. 2017) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “We owe

       ‘great deference’ to the initial probable-cause determination, and will not

       invalidate warrants by interpreting probable cause affidavits ‘in a

       hypertechnical, rather than a commonsense, manner.’” Id. (quoting Gates, 462

       U.S. at 236)).


[11]   Indiana Code Section 35-33-5-2(b) requires that where a search warrant

       affidavit is based on hearsay, the affidavit must either:


               (1) contain reliable information establishing the credibility of the
               source and of each of the declarants of the hearsay and
               establishing that there is a factual basis for the information
               furnished; or

               (2) contain information that establishes that the totality of the
               circumstances corroborates the hearsay.


       The reliability of such hearsay can be established in various ways, including

       where: “(1) the informant has given correct information in the past, (2)

       independent police investigation corroborates the informant’s statements, (3)

       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 7 of 16
       some basis for the informant’s knowledge is demonstrated, or (4) the informant

       predicts conduct or activities by the suspect that are not ordinarily easily

       predicted.” Newby v. State, 701 N.E.2d 593, 598 (Ind. Ct. App. 1998).


[12]   Deel asserts that the State failed to establish the reliability of Citizen’s

       statements and therefore failed to tie him to the property to be searched. In the

       search warrant affidavit, Detective Allen averred the following with respect to

       Citizen:


                 Citizen had proven his[2] credibility the previous day when he
                 provided information to the Lawrence County police department
                 that led to the arrest of 2 wanted subjects. I have known Citizen
                 for over 20 years. When I met with Citizen he indicated the
                 following:

                 1. He wanted to get clean from methamphetamine. He stated he
                 had a daughter and it was time for him to clean their life up.

                 2. He had been purchasing methamphetamine from DAVID
                 DEEL for over 4 months. Usually on a frequency of twice a
                 week. He indicated Deel was “never out of meth.”

                 3. He indicated that he felt the only way to get clean was to have
                 the people arrested that were dealing drugs to him.

                 4. He indicated he did not want anything in return for the
                 information. He felt like it “was the right thing to do.”

                 5. He stated that approximately 4 months ago he met David
                 Deel and Deel gave them ½ ounce of crystal methamphetamine



       2
           For consistency, we identify Citizen as previously indicated.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 8 of 16
        and told he (sic) to “go make some money” and he could pay
        Deel back later.

        6. He indicated that he had met Deel at the same residence every
        time he had purchased methamphetamine from Deel.

        7. He indicated [he was] acquiring between 7 and 28 grams from
        Deel during every purchase of methamphetamine.

        8. He indicated that Deel always had drugs and usually had
        several ounces in his “camper.”

        9. He described the property as a single wide trailer with two
        campers in the backyard.

        10. He indicated Deel always had marijuana and “DAB”
        (extracted THC) for sale.

        11. He stated that Deel was always smoking marijuana and
        using methamphetamine.

        12. He indicated that as soon as you got close to the trailer or
        camper you could smell the marijuana.

        13. He indicated that another person lived in the trailer and
        “Deel hid out in the pop up camper” and stored stuff in the other
        camper and in the trailer.

        14. He stated that Deel had a partner that went by Baldy. (I had
        him look on Deel’s Facebook and they identified “Chad White”
        as Baldy, information matching that of Trooper Weir.)

        15. He indicated that Deel did not drive anywhere and did not
        have a Driver’s license. I confirmed this through a DMV
        Records Check.

        16. I showed Citizen a DMV photograph of David Deel

Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 9 of 16
        01/18/1966, and he indicated that was the David Deel they had
        been purchasing methamphetamine from the past 4 months.

        17. He stated that Deel kept scales, baggies and other packaging
        equipment in the pop up camper. He indicated that Deel kept a
        lot of his product in the other camper.

        18. He indicated [he] would pay $800 for a half ounce or $250
        for 1/8 ounce. He indicated that it cost $50 for 1 gram of the
        “DAB[.]”

        Citizen suggested that he show me the residence in which he
        always purchased the drugs from Deel. Citizen guided me
        through the country from Lawrence County to 3886 N Rollin
        Road, West Baden Springs, Indiana. The property was exactly
        how the informant described it.

        ….

        I believe David Deel to be involved in an ongoing criminal
        enterprise of dealing methamphetamine. I believe David Deel to
        be operating this criminal enterprise from 3886 N Rollin Road,
        West Baden, Indiana. Citizen gave information that was reliable
        and credible the previous day. Citizen asked for no leniency on
        criminal charges or monetary reimbursement. Citizen made
        statements against his own penal interest indicated (sic) he had
        been involved in the sale of methamphetamine for over 4
        months. Citizen gave information which corroborated
        information previously provided to Trooper Weir. Lastly, I was
        able to corroborate the information of marijuana being located
        on the property by the odors emitted from the front door of the
        trailer.


Appellant’s App. Vol. 2 at 13-15.




Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 10 of 16
[13]   With respect to Deel’s argument concerning Citizen’s reliability, the search

       warrant affidavit specifies that Detective Allen has personally known Citizen

       for over two decades, that he also knows Citizen to have recently provided

       accurate information leading to the arrests of two other persons, and that

       Citizen’s statements corroborated information he had already received from

       three separate sources, two of whom were law enforcement officers and one of

       whom was a CI with whom the detective had a history. The affidavit also

       indicates the specificity of Citizen’s information in terms of the physical layout

       of the trailer and campers, the marijuana smell emanating from one of the

       structures, Deel’s lack of a driver’s license, and Deel’s pricing scheme, which

       was consistent with the detective’s knowledge as an expert in drug enforcement.

       Also lending reliability are Citizen’s admissions against his penal interest that

       he had purchased (and was urged to sell) meth numerous times over the

       preceding four months.3 See Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997)

       (“Declarations against penal interest can furnish sufficient basis for establishing

       the credibility of an informant within the meaning of Ind. Code § 35-33-5-

       2(b)(1).”). As it concerns Deel’s connection to the property, Citizen stated that

       he always purchased the meth from Deel at the same location. Citizen not only

       described the property accurately but also directed the detective to it. The

       remote location indicates that it is not property that ordinary travelers would

       pass on a regular basis but is a place that one visits with a specific purpose.




       3
           Unlike CI, Citizen did not request leniency in exchange for information that he provided concerning Deel.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018          Page 11 of 16
       Citizen had frequented the property recently and regularly for the specific

       purpose of purchasing meth from Deel. When Detective Allen approached the

       trailer, he smelled marijuana, an illegal substance, and thus corroborated the

       information through his own observations.


[14]   In short, Citizen gave detailed information that tied Deel to the sale of meth at

       the address listed in the affidavit. Detective Allen’s personal observations

       during his visit confirmed that illegal drugs were present on the property. “In

       other words, the warrant was based on a ‘practical, commonsense decision’ that

       there was ‘a fair probability that contraband or evidence of a crime’ would be

       found” on the property. Watkins, 85 N.E.3d at 604 (quoting Query v. State, 745

       N.E.2d 769, 771 (Ind. 2001)). Thus, the affidavit was sufficient to support the

       trial court’s finding of probable cause to search the property.4


            Section 2 – The totality of the circumstances supports the
            officers’ execution of the search warrant under Article 1,
                      Section 11 of the Indiana Constitution.
[15]   Deel also contends that he was subjected to unlawful search and seizure based

       on Article 1, Section 11 of the Indiana Constitution. While its language tracks

       that of the Fourth Amendment, Indiana’s search and seizure clause is subject to

       a different analysis, that is, we evaluate the reasonableness of the police conduct

       under the “totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356,




       4
        Because we hold that the affidavit sufficiently supports the trial court’s finding of probable cause to search
       Deel’s property, we need not address his claim that the good faith exception is unavailable to the State.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018             Page 12 of 16
       359-60 (Ind. 2005). Subject to other relevant considerations under the

       circumstances, the reasonableness of a search or seizure turns on a balance of:

       “(1) the degree of concern, suspicion, or knowledge that a violation has

       occurred, (2) the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities, and (3) the extent of law

       enforcement needs.” Id. at 361.


[16]   We first address the degree of intrusion. The searched property was Deel’s

       residence, and therefore it was entitled to the highest protection. Carpenter v.

       State, 18 N.E.3d 998, 1002 (Ind. 2014). Police served the search warrant and

       found Deel in the main trailer. They kicked open the door of his popup camper

       and searched inside, finding large quantities of meth and marijuana, as well as

       paraphernalia. The degree of intrusion was substantial and weighs in Deel’s

       favor.


[17]   High degree of intrusion notwithstanding, we must weigh it considering the

       remaining Litchfield factors. Deel admits that police had some, “maybe even a

       fairly high degree of concern, suspicion, or knowledge,” that he was engaged in

       criminal behavior. Appellant’s Br. at 32. However, he claims that it is

       “impossible to say that [Detective] Allen’s degree of concern, suspicion, or

       knowledge that a violation had occurred at the Rollin Road property was very

       high.” Id. at 33. We disagree. As previously discussed, in concluding that

       illegal activity was occurring on the property, Detective Allen relied not only on

       Citizen’s detailed descriptions of and specific directions to the remote property



       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 13 of 16
       but also on his own commonsense observations. The high degree of concern,

       suspicion, or knowledge weighs in favor of the reasonableness of the search.


[18]   As for the extent of law enforcement needs, we note that Deel’s illegal activities

       had been on Detective Allen’s radar through three independent sources prior to

       Citizen’s appearance, i.e., one CI with whom the detective had a history, and

       two law enforcement officers. From the information gathered, Deel was

       believed to be dealing large quantities of crystal meth with his cohort, Baldy. It

       was reported that Deel’s source was based in Indianapolis. In other words,

       Deel was not a lone actor but was believed to be involved in a meth dealing

       enterprise comprising a significant swath of central to southern Indiana. Simply

       put, law enforcement needs were high. Based on our balancing of the foregoing

       factors, we conclude that the search was reasonable.


         Section 3 – Double jeopardy principles require vacatur of
        Deel’s conviction, not merely his sentence, for level 3 felony
                       methamphetamine possession.
[1]    Finally, we address sua sponte the trial court’s entry of judgment of conviction

       against Deel on both level 2 felony dealing in methamphetamine and level 3

       felony methamphetamine possession. Because double jeopardy violations

       implicate fundamental rights, we may review them sua sponte. Hayden v. State,

       19 N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015). In Richardson v.

       State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court set forth the statutory

       elements and actual evidence tests to be applied to double jeopardy claims

       made pursuant to the Indiana Constitution. Where, as here, “no constitutional

       Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 14 of 16
      violation has occurred, multiple convictions may nevertheless violate the ‘rules

      of statutory construction and common law that are often described as double

      jeopardy, but are not governed by the constitutional test set forth in Richardson.”

      Montgomery v. State, 21 N.E.3d 846, 865 (Ind. Ct. App. 2014), trans. denied

      (2015). One such category is “[c]onviction and punishment for a crime which

      is a lesser-included offense of another crime for which the defendant has been

      convicted and punished.” Richardson, 717 N.E.2d at 55 (Sullivan, J.,

      concurring).


[2]   Here, the State charged Deel with both dealing in and possession of

      methamphetamine. The dealing count is phrased in term of Deel’s “knowing[]

      or intentional[] possess[ion] with intent to deliver methamphetamine … having

      a weight of at least 10 grams.” Appellant’s App. Vol. 2 at 25. His possession

      count is phrased in terms of his “knowingl[] or intentional[] possess[ion] [of]

      methamphetamine … weighing at least 28 grams.” Id. In pronouncing

      sentence, the court stated, “COUNT 2: POSSESSION OF

      METHAMPHETAMINE; Court vacates this sentence.” Id. at 208. Yet, the

      court had already expressly indicated that it was entering judgment of

      conviction on all counts. Id. at 206.


[3]   We believe that the trial court intended to address the double jeopardy

      implications of Deel’s convictions for both dealing in and possession of

      methamphetamine by vacating his sentence. In Kovats v. State, 982 N.E.2d 409,

      414-15 (Ind. Ct. App. 2013), another panel of this Court emphasized that where

      the trial court formally enters judgment of conviction on a jury’s guilty verdict,

      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 15 of 16
      simply vacating the sentence or merging convictions for purposes of sentencing

      is insufficient to remedy a double jeopardy violation. Rather, the court must

      reduce either conviction to a less serious form of the same offense that will

      eliminate the violation or vacate the conviction for the offense with lesser penal

      consequences. Richardson, 717 N.E.2d at 54. As such, we remand with

      instructions to vacate Deel’s conviction for level 3 felony methamphetamine

      possession. In all other respects, we affirm.


[4]   Affirmed and remanded.


      Robb, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 59A01-1704-CR-939 | January 31, 2018   Page 16 of 16
