MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Jan 10 2019, 5:48 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
James A. Edgar                                           Curtis T. Hill, Jr.
J. Edgar Law Offices, P.C.                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon T. Smith,                                        January 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1042
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1609-F2-35459



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                   Page 1 of 13
                                       Statement of the Case
[1]   Brandon T. Smith appeals his conviction for possession of a narcotic drug, as a

      Level 3 felony, and his adjudication as a habitual offender. He presents three

      issues for our review:


              1.       Whether the trial court erred when it admitted into
                       evidence items seized pursuant to an allegedly stale search
                       warrant.

              2.       Whether the trial court erred when it admitted into
                       evidence his statement to police, which he alleges was not
                       voluntary.

              3.       Whether the trial court abused its discretion when it
                       prohibited him from asking certain questions on cross-
                       examination of a police officer.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In April 2016, Indianapolis Metropolitan Police Department Detective Jason

      Hart began an investigation of suspected drug dealing by Smith and Smith’s

      associate Kierre Washington. Detective Hart was also acting as a Task Force

      Officer with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives

      (“ATF”). Members of the Task Force conducted several controlled heroin buys

      between Smith and a confidential informant (“CI”) between April 14 and

      August 31. Detective Hart observed Smith and Washington using a “stash




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 2 of 13
      house”1 located at 6451 Bay Harbor Lane in Indianapolis, where Smith would

      stop before each controlled buy with the CI. Tr. Vol. 2 at 227. In August,

      Detective Hart obtained a GPS warrant, which permitted him to place a GPS

      tracking device on a white pickup truck driven by Smith. Through surveillance,

      Detective Hart learned that Smith drove to the stash house more than fifty

      times between August 3 and September 7.


[4]   On August 31, ATF Special Agent Launa Hunt applied for a search warrant

      from the United States District Court for the Southern District of Indiana. In

      her affidavit submitted in support of the warrant, Special Agent Hunt described

      the controlled buys between Smith and the CI as well as Smith’s use of the

      residence at 6451 Bay Harbor as a stash house for his heroin trafficking

      activities. Special Agent Hunt also stated that Smith and Washington were the

      only people who had unrestricted access to the residence. Further, during

      August 2016, a second CI contacted investigators to report that Smith and

      Washington were working together to sell narcotics and that they had used the

      residence at 6451 Bay Harbor as a stash house. On August 31, the court issued

      the search warrant for the residence.


[5]   During the evening of September 6, officers saw Smith arrive at the residence,

      and they saw him leave early the next morning, on September 7. After Smith

      left, IMPD officers conducted a traffic stop, arrested Smith, and drove him to




      1
        Detective Hart explained that a “stash house” is a house where drug dealers do not reside but where they
      keep narcotics and firearms. Tr. Vol. 2 at 227.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                Page 3 of 13
      the IMPD gun range, which was a nearby isolated location. Officers wanted to

      question him in a location where no one could see that he was talking with law

      enforcement. Detective Hart and Detective Andrew Deddish read Smith his

      Miranda rights and questioned him about selling drugs. Smith ultimately

      admitted that he had sold cocaine and heroin, but he denied any connection to

      the stash house other than as a visitor. In the meantime, officers executed the

      search warrant at the residence, where they found approximately two ounces of

      heroin, three firearms, two pills containing methamphetamine, baggies, three

      digital scales, hypodermic needles, $510 in cash, and strips of fentanyl. Officers

      also found personal items addressed to Smith, as well as photographs of Smith.


[6]   The State charged Smith with dealing in a narcotic drug, as a Level 2 felony;

      possession of a narcotic drug, as a Level 3 felony; and with being a habitual

      offender. Prior to trial, Smith filed two motions to suppress the evidence. In

      his first motion to suppress, Smith alleged that his statement to police was not

      voluntary. In his second motion to suppress, he alleged that there was no

      probable cause to support the warrant, including that any probable cause had

      become stale because the officers waited eight days to execute the warrant. The

      trial court denied both motions to suppress. A jury found Smith guilty of

      possession of a narcotic drug, as a Level 3 felony, and adjudicated him to be a

      habitual offender, but the jury acquitted him of dealing in a narcotic drug. The

      trial court entered judgment of conviction accordingly and sentenced Smith to

      twenty-five years executed. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 4 of 13
                                      Discussion and Decision
                                         Issue One: Search Warrant

[7]   Smith first contends that the trial court erred when it admitted into evidence

      items seized pursuant to the search warrant, which, he contends, was not

      supported by probable cause at the time of execution.2 Because Smith alleges a

      constitutional violation, the proper standard of appellate review is de novo. See

      Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013).


[8]   The Fourth Amendment to the United States Constitution and Article 1,

      Section 11 of the Indiana Constitution both require probable cause for the

      issuance of a search warrant. Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct.

      App. 2008), trans. denied. In Huffines v. State, we explained that


              “‘[p]robable cause is a fair probability that contraband or
              evidence of a crime will be found in the location to be searched.”
              [United States v.] LaMorie, 100 F.3d [547,] 552[ (8th Cir. 1996)].
              We determine probable cause “under a totality-of-the-
              circumstances approach.” Id. at 553. A delay in executing a
              search warrant may render stale the probable cause finding.
              United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied,
              516 U.S. 903, 116 S. Ct. 265, 133 L. Ed. 2d 188 (1995).
              Important factors to consider in determining whether probable
              cause has dissipated, rendering the warrant fatally stale, include
              the lapse of time since the warrant was issued, the nature of the




      2
         Smith makes no contention that the search warrant was not supported by probable cause at the time it was
      issued.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                Page 5 of 13
               criminal activity, and the kind of property subject to the search.
               Id.”


       739 N.E.2d at 1096 (quoting United States v. Gibson, 123 F.3d 1121, 1124 (8th

       Cir. 1997)).


[9]    Smith maintains that the facts and circumstances underlying the search warrant

       officers executed at the stash house are analogous to those in Huffines. In

       Huffines, officers conducted a single controlled drug buy three days prior to the

       issuance of a search warrant for defendant’s residence, and officers waited eight

       days after the warrant’s issuance to search the home. The trial court denied the

       defendant’s motion to suppress. On appeal, we acknowledged that the officers

       had executed the warrant within the ten-day window provided by Indiana Code

       Section 35-33-5-7(b) (2018), but we stated that “the fact that the search did not

       violate the statute does not address Huffines’ separate constitutional

       arguments” that the probable cause supporting the search warrant had

       dissipated by the time of execution. Id. at 1095 (citing Jaggers v. State, 687

       N.E.2d 180, 183 (Ind. 1997)).


[10]   In Huffines, we distinguished Gibson, where police had waited four days after

       issuance to execute a search warrant. The district court in Gibson denied the

       defendant’s motion to suppress, having “concluded that the confidential

       informant’s statements about drug trafficking activity at the [defendant’s]

       apartment and the traffic in and out of the apartment were sufficiently

       indicative of continued drug dealing to provide probable cause at the time the

       warrant was issued.” 123 F.3d at 1125. On appeal, the Eighth Circuit affirmed
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 6 of 13
       the district court, noting that, “[b]ecause continuing criminal activity was

       suspected and corroborated, probable cause did not dissipate in the four days

       that lapsed between the time the state court issued the warrant and its

       execution.” Id. (emphasis added).


[11]   In contrast, in Huffines, we held that the probable cause supporting the search

       warrant had dissipated by the time of execution. In particular, we observed that


                [t]he State presented no evidence that the police conducted
                surveillance of Huffines’ residence between the time the warrant
                was issued and when it was executed. The State did not present
                evidence regarding any increase or decrease in traffic to and from
                Huffines’ home or any evidence indicating on-going drug
                activity.

                Utilizing the totality of the circumstances approach of the federal
                courts, we conclude that the State has failed to demonstrate that
                continuing criminal activity was suspected and corroborated. As
                such, probable cause dissipated in the eight days that lapsed
                between the time of the warrant’s issuance and the search of
                Huffines’ home. Therefore, when the police conducted the
                search, they did so based upon a warrant not supported by
                probable cause.


       Huffines, 739 N.E.2d at 1097.3


[12]   The totality of the circumstances underlying the search warrant for Smith’s

       stash house are distinguishable from those in Huffines. In Huffines, officers




       3
         As in Huffines, here there is no meaningful difference between our analyses under the federal and state
       constitutions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                  Page 7 of 13
       conducted a single controlled buy. Here, officers conducted multiple controlled

       buys over the course of several months. Further, the State presented evidence

       that Smith had visited the stash house more than fifty times in a single month,

       and Smith had stopped by the stash house before the controlled buys. A second

       confidential informant stated that Smith and Washington used the stash house

       in the course of dealing drugs. And Smith spent the night at the stash house the

       night before officers executed the search warrant. In short, the State presented

       ample evidence of an ongoing drug dealing enterprise such that the search

       warrant was supported by probable cause at the time it was executed eight days

       after issuance. See Gibson, 123 F.3d at 1125; see also, e.g., Bigler v. State, 602

       N.E.2d 509, 516 (Ind. Ct. App. 1992) (holding information in probable cause

       affidavit was not stale where last known act of distribution had occurred

       twenty-one days before warrant issued and where facts showed ongoing drug

       dealing for two years), trans. denied. Accordingly, the trial court did not err

       when it admitted into evidence items seized pursuant to the search warrant.


                                            Issue Two: Statement

[13]   Smith contends that the trial court erred when it admitted into evidence his

       statement to police. He maintains that his statement was not voluntary. Again,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 8 of 13
       because Smith alleges a constitutional violation, our review is de novo.4 See

       Speers, 999 N.E.2d at 852.


                “A waiver of one’s Miranda rights occurs when a defendant, after
                being advised of those rights and acknowledging an
                understanding of them, proceeds to make a statement without
                taking advantage of those rights.” Crain v. State, 736 N.E.2d
                1223, 1230 (Ind. 2000). The State has the burden to prove
                beyond a reasonable doubt that the waiver was made knowingly
                and voluntarily. Horan v. State, 682 N.E.2d 502, 509 (Ind. 1997).
                To be admissible, a suspect’s confession must also be voluntarily
                given. Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997). A
                confession is voluntary if it is the product of a rational intellect
                and not the result of physical abuse, psychological intimidation,
                or deceptive interrogation tactics that have overcome the
                defendant’s free will. A.A. v. State, 706 N.E.2d 259, 262 (Ind. Ct.
                App. 1999). Under the United States Constitution, the State
                must prove by a preponderance of the evidence that the
                defendant’s confession was voluntary. Clark v. State, 808 N.E.2d
                1183, 1191 (Ind. 2004).


       Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012), trans. denied.


[14]   Smith asserts that, during his interview, the officers both threatened him and

       made promises of leniency, which rendered his statement involuntary.5 In




       4
         Smith does not clearly state whether he claims a constitutional violation under the federal or state
       constitutions, or both. He mentions the Fifth Amendment to the United States Constitution at one point, so
       we will address his claim under the federal constitution.
       5
         For the first time on appeal, Smith maintains that the location of his interview, in a police car at the IMPD
       gun range with guns being fired nearby, along with the tightness of the handcuffs, which the officers did not
       loosen until one-and-one-half hours had transpired after his arrest, also rendered his confession involuntary.
       But Smith did not ask to go to a different location or express any concern about the gun range. And Smith
       does not direct us to any evidence that he had expressed discomfort as a result of the handcuffs before the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                   Page 9 of 13
support of his contention, Smith summarizes the offending statements by the

officers during his interview as follows:


         “[Defendant] faces a crapload of time in Federal jail.”

         “quite a bit of Federal time.”

         “you are looking at a significant amount of time.”

         “significant portion of your life in penitentiary”

         “He’ll be joining you in Federal prison.”

         “When I play those videos to [the] Federal jury . . . “

         “You are screwed in Federal Court with your criminal history.”

         “We have the ability to take all the assets.”

         “If we go to the prosecutor and we say: “He is willing to play
         ball, there is a way you walk away from this.”

         “And another kicker that factors into that in the federal side of
         things on the onset right now – we would need to go over
         specifically your involvement within this and you need to take
         responsibility for it and acknowledge your participation to the
         point where we can say you cooperated in that way. Because
         actually that helps you in the federal system. You get
         consideration for that. They can knock points off. Everything in
         the federal system is on the points system.”




officers loosened them. In any event, it is well settled that a defendant cannot make an argument for the first
time on appeal. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019                  Page 10 of 13
       Appellant’s Br. at 19-20.


[15]   It is true that a confession is inadmissible if obtained by a promise of immunity

       or mitigation of punishment. Collins v. State, 509 N.E.2d 827, 830 (Ind. 1987).

       However, vague and indefinite statements by the police about it being in the

       best interest of the defendant for him to tell the real story or cooperate with the

       police are not sufficient inducements to render a subsequent confession

       inadmissible. Id. Implied promises are too indefinite to render a confession

       involuntary. Id.


[16]   Here, the officers’ statements to Smith that he faced a considerable amount of

       jail time and might get leniency for his cooperation were too vague and

       indefinite to render his confession involuntary. See Higgins v. State, 562 N.E.2d

       770, 771 (Ind. Ct. App. 1990) (holding confession voluntary where officer told

       defendant “the one that cooperates the most” would get the “best deal” from

       the prosecutor); see also, e.g., Lord v. State, 531 N.E.2d 207, 209 (Ind. 1988)

       (holding confession voluntary where police officer asked, “[I]f I could get [the

       prosecutor] down here, would you tell the truth, if he’d cut you a deal?”); Neal

       v. State, 522 N.E.2d 912, 913 (Ind. 1988) (holding confession voluntary where

       officer promised leniency if defendant “came clean”); Ford v. State, 504 N.E.2d

       1012, 1013 (Ind. 1987) (holding confession voluntary where officer told

       defendant that others were making statements and that it would be in his best

       interests to make a statement himself); Hampton v. State, 468 N.E.2d 1077, 1080

       (Ind. Ct. App. 1984) (holding confession voluntary where officers told

       defendant possible sentences for crime, that mitigating circumstances could be

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 11 of 13
       considered, and that they would inform court if he was truthful and

       cooperative); White v. State, 404 N.E.2d 1144, 1146 (Ind. Ct. App. 1980)

       (holding confession voluntary where officer stated, “if you help us like your

       sister, we’ll help you”). The trial court did not err when it found that Smith’s

       statement was voluntary.


                                     Issue Three: Cross-examination

[17]   Finally, Smith contends that the trial court abused its discretion when it

       prohibited him from questioning Detective Hart about threats Detective Hart

       had allegedly made to Smith during the interview. A trial court has wide

       discretion to determine the scope of cross-examination, and we will reverse only

       for a clear abuse of that discretion. Nasser v. State, 646 N.E.2d 673, 681 (Ind.

       Ct. App. 1995). The general rule is that cross-examination must lie within the

       scope of the direct examination. Id. A trial court abuses its discretion in

       controlling the scope of cross-examination when the restriction relates to a

       matter which substantially affects the defendant’s rights. Id.


[18]   Here, Smith points out that, on direct examination of Detective Hart, the

       prosecutor asked him whether he had threatened Smith during the interview,

       and Detective Hart answered no. Smith asserts that that question and answer

       opened the door for Smith to question Detective Hart about alleged threats he

       had made. And Smith made an offer of proof where he asked Detective Hart

       about his statements to Smith that he faced “a crapload of Federal time” if he

       did not cooperate, and other statements to that effect. Tr. Vol. IV at 16.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 12 of 13
[19]   The trial court limited Smith’s cross-examination of Detective Hart based on

       the court’s previous ruling that Detective Hart had not made threats against

       Smith during his interview. Indeed, again, “‘[s]tatements by police expressing a

       desire that a suspect cooperate and explaining the crimes and penalties that are

       possible results are not specific enough to constitute either promises or threats.’”

       Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004) (quoting Kahlenbeck v. State,

       719 N.E.2d 1213, 1217 (Ind. 1999) (emphasis added)). Thus, as the trial court

       determined, Detective Hart’s statements regarding possible penalties Smith

       faced did not constitute threats. And because there is no evidence that

       Detective Hart threatened Smith during the interview, Smith cannot show that

       the trial court abused its discretion when it prohibited Smith’s questions of

       Detective Hart about alleged threats on cross-examination.


[20]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019   Page 13 of 13
