MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Sep 08 2017, 7:50 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael G. Moore                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Torri Newman,                                            September 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1702-CR-290
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1411-FA-51440



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017       Page 1 of 8
                                       Statement of the Case
[1]   Torri Newman appeals his convictions for possession of cocaine, as a Class C

      felony; possession of a controlled substance, as a Class D felony; and possession

      of marijuana, as a Class D felony, following a jury trial. Newman presents four

      issues for our review, but we address a single dispositive issue, namely, whether

      the trial court erred when it admitted into evidence at trial the cocaine, ecstasy,

      and marijuana police officers found in his home after he gave them consent to

      search the premises. We affirm.


                                 Facts and Procedural History
[2]   On December 11, 2013, members of the Hamilton-Boone County Drug Task

      Force arranged a controlled buy between a confidential informant (“CI”) and

      Joseph Bobish. In particular, on that date, the CI telephoned Bobish, who told

      the CI that “he had a local source [who] could deliver” cocaine to Bobish to sell

      to the CI. Tr. Vol. 2 at 9. The CI and Bobish agreed that the CI would

      purchase one ounce of cocaine from Bobish at Bobish’s residence in Fishers the

      following day.


[3]   Accordingly, on December 12, Carmel Police Department Detective Darin

      Troyer searched the CI, searched the CI’s vehicle, gave him a “covert audio

      transmitter,” and gave him money for the cocaine. Id. The CI then drove to

      Bobish’s house. Detective Troyer and another detective followed the CI and

      kept him under constant audio and visual surveillance during the drive. The CI




      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017   Page 2 of 8
      parked in front of Bobish’s house. After a short time, Bobish arrived at the

      house, parked his car, and both men walked into Bobish’s house together.


[4]   Once the two men were inside the house, Detective Troyer monitored their

      conversation over the audio transmitter, and he could hear that Bobish “spent a

      decent amount of time on his cell phone[.]” Id. at 10. Then Bobish “got what

      sounded like marijuana” and had a “general conversation” with the CI. Id.

      The sale of cocaine had not yet transpired. At some point, a man later

      identified as Newman parked his maroon SUV1 in front of Bobish’s residence,

      and Bobish went outside and talked to Newman “for a short period of time”

      while Newman remained sitting in his SUV. Id. at 11. Bobish then went back

      inside his home, at which time Detective Troyer “could hear the cocaine

      transaction occurring between [the CI] and Mr. Bobish.” Id. In particular,

      Detective Troyer heard “the money exchange” and “talk about the quality of

      the cocaine.” Id. at 11-12. Bobish then went back outside, “went back to

      [Newman’s] vehicle[,] and met with Mr. Newman again for a short period of

      time.” Id. at 12. Bobish then returned to his house, and Newman drove off.


[5]   Detective Troyer then advised “assisting members of the Drug Task Force” to

      stop Newman’s SUV “under suspicion of being involved in a felony drug deal.”

      Id. at 12, 14. Officers initiated a traffic stop, arrested Newman, and transported

      him to the Fishers Police Department. There, after Detective Matthew




      1
          Newman was the sole occupant of the SUV.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017   Page 3 of 8
      Kinkade and Major Aaron Dietz had read Newman his Miranda rights,

      Newman did not request an attorney, but he “did not give any statement of any

      type.” Id. at 44. Newman did answer a few questions and initially told the

      officers that he lived on Moonlight Drive in Indianapolis. But, after officers

      discovered that the license plate on his SUV was registered to him at a residence

      located on 13th Street in Indianapolis, Newman confirmed that he lived at the

      13th Street address. Newman then signed a consent to search form for his

      residence and gave the officers a key to that home. When officers searched

      Newman’s home, they found 27.5923 grams of cocaine, 100 ecstasy pills,

      201.45 grams of marijuana, four firearms, digital scales, plastic baggies, and a

      package of rubber gloves.


[6]   The State charged Newman with dealing in cocaine, as a Class A felony;

      unlawful possession of a firearm by a serious violent felon, a Class B felony;

      possession of cocaine, as a Class C felony; possession of a controlled substance,

      as a Class D felony; and possession of marijuana, as a Class D felony.

      Newman moved to suppress the evidence officers obtained during the search of

      his residence, but the trial court denied that motion following a hearing. Before

      trial, the State dismissed the possession of a firearm count. A jury found

      Newman guilty of possession of cocaine, as a Class C felony; possession of a

      controlled substance, as a Class D felony; and possession of marijuana, as a

      Class D felony; but it acquitted him of dealing in cocaine. The trial court

      entered judgment accordingly and sentenced Newman to an aggregate term of

      six years. This appeal ensued.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017   Page 4 of 8
                                       Discussion and Decision
[7]   Newman contends that the officers violated his Fourth Amendment rights

      when they arrested him and when they searched his vehicle. 2 These issues

      present “questions of law we review de novo.” Zanders v. State, 73 N.E.3d 178,

      181 (Ind. 2017). As the United States Supreme Court has explained, “as a

      general matter determinations of reasonable suspicion and probable cause

      should be reviewed de novo on appeal,” while “findings of historical fact”

      underlying those legal determinations are reviewed “only for clear error.”

      Ornelas v. United States, 517 U.S. 690, 699 (1996). With that standard in mind,

      we turn to Newman’s arguments on appeal.


[8]   Newman first contends that officers did not have probable cause to arrest him

      during the traffic stop. Thus, he maintains that the evidence against him was

      obtained in violation of the Fourth Amendment and “should have been

      excluded from evidence as it was fruit of the poisonous tree.” Appellant’s Br. at

      12. We cannot agree.


[9]   An arrest is lawful without a warrant when an officer has probable cause to

      support the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003). Probable

      cause for an arrest exists when the officer has knowledge of facts and




      2
        Newman briefly cites to Article 1, Section 11 of the Indiana Constitution to argue that both his arrest and
      the search of his vehicle were unreasonable. However, Newman fails to develop an independent argument
      and analysis regarding these facts; therefore, he has waived this claim. See Ackerman v. State, 774 N.E.2d 970,
      978 n.10 (Ind. Ct. App. 2002) (stating that the failure to cite to any authority or to make a separate argument
      specific to the state constitutional provision waives the issue on review).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017             Page 5 of 8
       circumstances that would warrant a person of reasonable caution to believe the

       suspect committed a criminal act. Id. The amount of evidence necessary to

       meet the probable cause requirement for a warrantless arrest is determined on a

       case-by-case basis. Id.


[10]   Here, the evidence shows that, the day before the controlled buy, Bobish had

       told the CI over the telephone that he “had a local source [who] could deliver

       the cocaine for him.” Tr. Vol. 2 at 9. When the CI went to Bobish’s house to

       purchase cocaine, the CI and Bobish were inside his home for a short time and

       discussed marijuana, but the cocaine transaction did not occur until after

       Bobish met with Newman, who was parked outside Bobish’s residence. When

       Bobish went back inside after talking to Newman, Detective Troyer “could hear

       the cocaine transaction occurring between [the CI] and Mr. Bobish.” Id. at 11.

       Bobish then went back outside, “went back to [Newman’s] vehicle[,] and met

       with Mr. Newman again for a short period of time.” Id. at 12. Bobish then

       returned to his house, and Newman drove off. Detective Troyer testified that,

       in his experience, the facts and circumstances indicated that Newman had

       delivered cocaine to Bobish to sell to the CI.


[11]   We hold that the evidence shows that the officers had probable cause to initiate

       the traffic stop and arrest Newman for dealing in cocaine. Accordingly,

       Newman has not shown that his arrest violated the Fourth Amendment to the

       United States Constitution. And the trial court did not err when it admitted the

       evidence officers found during the search of his residence.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017   Page 6 of 8
[12]   Still, Newman maintains that the contraband seized from his house was

       inadmissible as fruit of the poisonous tree following an illegal search of his

       vehicle. In particular, Newman asserts that officers only learned his real address

       after they had conducted an illegal search of his SUV and found the vehicle’s

       registration that listed the 13th Street address. In essence, Newman contends

       that, had officers not discovered his real address through that purportedly illegal

       search, he would not have consented to the ensuing search of his residence.3


[13]   But the State introduced evidence that officers had discovered Newman’s 13th

       Street address while Newman was driving his SUV, before his arrest and before

       any search of the SUV, when one of the officers ran his license plate number

       with the Bureau of Motor Vehicles (“BMV”). And it is well settled that the fruit

       of the poisonous tree doctrine does not apply when the derivative evidence

       obtained has an independent source. Clark v. State, 994 N.E.2d 252, 272 (Ind.

       2013) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920),

       overruled on other grounds by United States v. Havens, 446 U.S. 620 (1980)). Here,

       because officers obtained Newman’s home address through an independent

       source, namely, the BMV search, we need not address his claim that the search

       of his SUV was illegal, and his claim on this issue is without merit. The trial




       3
           Newman does not otherwise challenge the validity of his consent to search his residence.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017        Page 7 of 8
       court did not err when it admitted into evidence the contraband officers found

       in his residence.4


[14]   Affirmed.


       Riley, J., and Robb, J., concur.




       4
         In any event, Detective Troyer testified that officers seized Newman’s SUV after his arrest under the civil
       forfeiture statute. It was reasonable for officers to search the SUV for information regarding the vehicle’s
       owner and to verify Newman’s address. See, e.g., Brune v. State, 168 Ind. App. 202, 342 N.E.2d 637, 640
       (1976) (holding search of car and trailer seized under civil forfeiture statute reasonable because “closely
       related” to reason for arrest and reason vehicle being held).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-290 | September 8, 2017             Page 8 of 8
