                                                                        FILED
                                                                    Aug 09 2018, 9:46 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan P. Dillon                                             Curtis T. Hill, Jr.
Maritza K. Webb                                            Attorney General of Indiana
Dillon Legal Group, P.C.                                   J.T. Whitehead
Franklin, Indiana                                          Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jevon R. Bates-Smith,                                      August 9, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-307
        v.                                                 Appeal from the Morgan Superior
                                                           Court
State of Indiana,                                          The Honorable Peter R. Foley,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           55D01-1509-F2-1386



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018                           Page 1 of 13
[1]   Jevon Bates-Smith appeals his conviction for Level 2 Felony Dealing in a

      Narcotic Drug.1 Bates-Smith argues that the trial court erred by (1) admitting

      evidence stemming from a traffic stop that Bates-Smith contends was

      unconstitutional; and (2) admitting testimony in violation of the rule against

      hearsay evidence and the federal Confrontation Clause. Finding no error, we

      affirm.


                                                      Facts
[2]   Indiana State Police Detective Joshua Allen works for the drug enforcement

      section and is assigned to covert operations in an undercover role investigating

      people who deal in cocaine, heroin, and methamphetamine. He has been

      involved in over 500 criminal investigations related to controlled substances.

      Detective Allen often employs confidential informants (CIs), who are usually

      low-level drug users whose cooperation leads to the arrest of higher level

      targets. He has used CIs over 100 times in his career.


[3]   In the summer of 2015, Detective Allen began working with a CI. This CI has

      heroin-related cases in his criminal history, though he had not yet been

      convicted of any drug offense. At some point, the CI told Detective Allen that

      he had purchased heroin from a dealer for whom the CI had a phone number

      and a vague description, but no name.




      1
          Ind. Code § 35-48-4-1.


      Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018          Page 2 of 13
[4]   The CI worked with officers to contact the heroin dealer, making multiple

      phone calls and many contacts before finally succeeding. On September 28,

      2015, after Detective Allen and the CI had been working together for a few

      months, police officers were able to contact the dealer using the phone number

      provided by the CI. They set up a meeting to purchase heroin in the amount of

      $800. Detective Allen contacted various troopers, sheriff’s deputies, and police

      officers, telling them to be out of sight at the planned meeting location and to be

      prepared to arrest the dealer after the controlled buy occurred.


[5]   The plan was for the controlled buy to take place near a Steak ‘n Shake

      restaurant and Wal-Mart plaza in Martinsville. Based on the CI’s description,

      law enforcement was looking for a blue four-door passenger vehicle holding a

      slender, tall, Black male. Detective Allen and the CI waited for the vehicle to

      arrive.


[6]   Detective Allen saw a blue four-door vehicle arrive and park in a lot near the

      restaurant. The detective and CI drove past the vehicle, which held two Black

      males. As they drove by, the CI’s cell phone rang; Detective Allen noticed that

      the driver of the vehicle, later identified as Bates-Smith, was on his cell phone.

      The incoming call to the CI was from the same number officers had contacted

      to arrange the controlled buy. The CI identified Bates-Smith as the dealer.

      Evidently, Bates-Smith was contacting the CI to cancel the deal. Appellee’s Br.

      p. 23.




      Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018         Page 3 of 13
[7]   Bates-Smith began to drive his vehicle out of the parking lot. Detective Allen

      contacted the other law enforcement officials who were waiting nearby with

      instructions to stop the vehicle; Detective Allen drove the CI to a gas station

      and let him get out of the car so that he would not be identified by Bates-Smith

      or his passenger.


[8]   As Bates-Smith was driving his vehicle, law enforcement officials followed it

      and turned on their lights and sirens. Bates-Smith continued to drive through

      the parking lot, with the officials in pursuit. As officials had blocked the

      parking lot exits, Bates-Smith eventually ran out of room and had to stop. His

      passenger, later identified as Jeremiah Moore, jumped out of the car while it

      was still moving. Moore tried to run away but was apprehended by law

      enforcement officials. He was instructed to get down onto the pavement in a

      spread-eagle position. He complied, and then repeatedly attempted to shove

      something into his mouth but was unable to swallow it. It was later determined

      that the object was a golf-ball-sized baggy containing heroin.


[9]   At the same time, other officials were focused on Bates-Smith, who was still in

      the vehicle. He eventually agreed to exit the vehicle. A later search of the

      vehicle revealed a loaded pistol, five cell phones, scales, and multiple bags

      containing a total of approximately 25.06 grams of heroin.2




      2
       Detective Allen later testified that in his experience, he has learned that a normal dose of heroin is one tenth
      of one gram. Tr. Vol. III p. 121.

      Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018                                   Page 4 of 13
[10]   On September 30, 2015, the State charged Bates-Smith with Level 2 felony

       dealing in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 3

       felony dealing in a narcotic drug, and Level 6 felony maintaining a common

       nuisance. On April 13, 2016, Bates-Smith filed a motion to suppress the

       evidence, arguing that the police had lacked reasonable suspicion to conduct

       the traffic stop. Following an August 25, 2017, hearing, the trial court denied

       the motion to suppress. Bates-Smith’s jury trial took place on November 7 and

       8, 2017, and the jury found him guilty as charged. The trial court merged all

       the offenses into the Level 2 felony conviction and sentenced Bates-Smith to

       twelve years imprisonment. Bates-Smith now appeals.


                                     Discussion and Decision
                                               I. Traffic Stop
[11]   Bates-Smith first argues that the trial court erred by admitting the evidence

       obtained as a result of the traffic stop, which he argues was unconstitutional.

       The admission of evidence is within the discretion of the trial court, and we will

       reverse only if the decision is clearly against the logic and effect of the facts and

       circumstances before the court. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

       2002).




       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018           Page 5 of 13
[12]   Both the United States and Indiana3 Constitutions prohibit unreasonable

       searches and seizures by the government, including brief investigatory stops of

       persons or vehicles. Clarke v. State, 868 N.E.2d 1114, 1117 (Ind. 2007). In this

       case, the stop was not based on a warrant, so the burden was on the State to

       show that there was an exception to the general requirement of a warrant.

       Coleman v. State, 847 N.E.2d 259, 262 (Ind. Ct. App. 2006).


[13]   The exception at issue in this case was set forth by the United States Supreme

       Court in Terry v. Ohio, 392 U.S. 1 (1968). The Terry Court held that law

       enforcement officials may briefly detain a person for investigatory purposes

       with only a reasonable suspicion that criminal activity is occurring. Moultry v.

       State, 808 N.E.2d 168, 170-71 (Ind. Ct. App. 2004). The determination of

       reasonable suspicion is based on whether the officer had a particularized and

       objective basis for suspecting legal wrongdoing in light of the totality of the

       circumstances. Id. at 171.


[14]   Under certain circumstances, a CI’s tip may provide the basis of a Terry stop.

       Coleman, 847 N.E.2d at 262. In Parker v. State, this Court considered when such

       a tip provides sufficient indicia of reliability to justify an investigatory stop. 662

       N.E.2d 994, 996-98 (Ind. Ct. App. 1996). The Parker Court found the CI’s tip

       in that case to be sufficient because “the officers relied on the tip of a known




       3
        Although Bates-Smith initially names both constitutions, his analysis focuses solely on the United States
       Constitution. Therefore, we will not conduct a separate analysis under the Indiana Constitution. We note,
       however, that even if we did so, the result would not change.

       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018                               Page 6 of 13
       informant who provided the information over the phone and in person, gave

       specific verifiable details, accurately predicted [the defendant’s] future actions,

       and had provided information in the past that led to other narcotics

       convictions.” Id. at 997. The Parker Court also emphasized that the reliability

       of a CI’s tip need not rise to the level needed to justify an arrest or search

       warrant. Id. at 996.


[15]   Bates-Smith directs our attention to Coleman v. State in support of his contention

       that the stop in this case was unconstitutional. In Coleman, a new CI who was

       unknown to police contacted a sergeant and told him that he had previously

       bought cocaine at the mall from a man named “J.C.” 847 N.E.2d at 261. The

       CI then called J.C. and arranged to meet him at the mall later that day to buy

       crack cocaine. Police transported the CI to the buy in an unmarked police

       vehicle. From inside the vehicle, the CI identified a man waiting outside of a

       department store as J.C.; it was eventually determined that “J.C.” was

       Coleman. After the CI identified the man, a uniformed officer stopped

       Coleman and asked if he was J.C. Coleman replied affirmatively, and the

       officer asked Coleman if he could conduct a pat-down search of his person.

       Coleman agreed, and the officer found a digital scale, illegal drug residue, and

       parts of plastic baggies. Coleman was arrested and a subsequent search of his

       vehicle revealed cocaine. Id.


[16]   On appeal, this Court considered whether the CI’s tip had sufficient indicia of

       reliability to justify the stop. We found that it did not:



       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018           Page 7 of 13
        Here, our review of the record indicates that in stopping
        Coleman, the police officers relied on the C.I.’s initial tip, his
        subsequent telephone conversation with “J.C.” arranging the
        meeting, and then finally his identification of Coleman as “J.C.”
        at the pre-determined meeting place. The record further reveals
        that the C.I. was not a well-known informant, but rather had
        only given the police one reliable tip in the past, on the very same
        day that he provided the tip about Coleman. Also, the record
        discloses that the officers were only able to hear the C.I.’s side of
        the telephone conversation in arranging the meeting with “J.C.”;
        thus, the police officers relied entirely on the C.I.’s statement that
        “J.C.” would be waiting at the mall and would have cocaine with
        him. While the C.I. did give a general description of “J.C.” as a
        5’10” African American male, approximately thirty (30) years
        old, the record fails to show that the C.I. gave any specific
        description of “J.C.” prior to identifying him.


        We find that this set of facts presents us with a close case.
        However, under the totality of the circumstances, we ultimately
        conclude that the officers here lacked the requisite reasonable
        suspicion to stop Coleman. . . . [T]he officers here relied on a
        new informant who gave a tip consisting of little detail. The
        record shows that the C.I. had no history of drug-related crimes,
        and in fact was in custody on his first offense of any sort. In . . .
        our review of the record, we also find that the officers did not
        independently investigate the tip on Coleman prior to stopping
        him. Although C.I.’s telephone conversation with “J.C.” was
        corroborated by “J.C.’s” presence at the mall, the officers had a
        limited history with C.I., and little guarantee that he was telling
        the truth. Thus, the police officers could not corroborate that the
        man waiting in front of the department store was in fact “J.C.”
        until after they stopped him. Also, Officer Long testified at the
        hearing on the Motion to Suppress that he did not observe
        Coleman committing a crime, or even acting suspiciously, before
        he stopped him. . . .



Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018           Page 8 of 13
               In addition, we have concerns as to the hastiness of the police
               work in Coleman’s case. From the record, it is apparent that the
               Greenwood Police Department conducted several pre-arranged
               drug buys and made numerous drug-related arrests the day
               Coleman was arrested. And while the record is void as to the
               amount of investigating that preceded the other arrests that day,
               the record here indicates that the police officers met with the C.I.,
               set up the meeting between the C.I. and Coleman, and arrested
               Coleman all in one day. . . .


       847 N.E.2d at 263-64. We ultimately reversed the trial court’s order denying

       Coleman’s motion to suppress.


[17]   Bates-Smith argues that this case is similar to Coleman and, consequently, his

       conviction should be reversed. Although there are some similarities, we

       disagree that Coleman compels a reversal. In this case, the CI was known to

       Detective Allen because the detective had worked on criminal cases in which

       the CI was a suspect. Indeed, the CI was assisting the police because he was

       trying to strike a bargain for leniency on another criminal case. And although

       there was not a years-long relationship between police and the CI, Detective

       Allen testified that he had worked with the CI for a few months before the

       incident involving Bates-Smith.


[18]   With respect to Bates-Smith, officers and the CI had attempted to arrange the

       deal by multiple phone calls before finally succeeding. In other words, the call

       that set up the deal for September 28, 2015, was the culmination of a number of

       efforts to arrange the deal; it was the final call in a series of contacts between

       this CI and Bates-Smith. Unlike Coleman, this was not a same-day, hastily

       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018           Page 9 of 13
       arranged buy. Additionally, facts provided by the CI that were immediately

       verifiable at the scene—before the stop—include the location of the deal, the

       time of the deal, a physical description of Bates-Smith, the phone number of

       Bates-Smith, a description of Bates-Smith’s vehicle, and on-site identification of

       the dealer as Bates-Smith.4 Additionally, Detective Allen observed Bates-Smith

       on his phone at the same time the dealer was talking with the CI, and Bates-

       Smith drove his vehicle off the lot after the dealer told the CI he was cancelling

       the deal.


[19]   When examining the totality of the circumstances surrounding the controlled

       buy, we find that the CI’s information regarding Bates-Smith had sufficient

       indicia of reliability to provide the officers with a particularized and objective

       basis for suspecting legal wrongdoing. In other words, the State met its burden

       of showing that a Terry stop was proper in this case. Therefore, the trial court

       did not err by admitting the evidence stemming from that stop.


                                II. Detective Allen’s Testimony
[20]   Bates-Smith also argues that the trial court erred by permitting Detective Allen

       to testify because his testimony relied in part on information he learned from

       the CI. As such, Bates-Smith contends that the testimony was impermissible



       4
         To the extent the State attempts to rely on things that occurred after officers attempted to stop Bates-Smith,
       we note that using those events would constitute an impermissible argument amounting to “the ends justify
       the means.” The facts that Bates-Smith fled from police officers, that his passenger jumped out of a moving
       vehicle, or that his passenger attempted to swallow a bag of heroin, cannot possibly answer the question of
       whether the stop was proper to begin with. To answer that question, we must examine what the officers
       knew before the stop occurred.

       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018                                  Page 10 of 13
       hearsay that, in addition to violating the rules of evidence, violated his rights

       under the Confrontation Clause of the United States Constitution.


[21]   We must first determine whether the testimony constituted inadmissible

       hearsay. Hearsay is a statement, other than one made by the declarant while

       testifying at trial, offered into evidence to prove the truth of the matter asserted.

       Ind. Evidence Rule 801(c). In some circumstances, conduct itself can constitute

       hearsay when it indicates an implied assertion by the declarant. Watt v. State,

       412 N.E.2d 90, 96 (Ind. Ct. App. 1980).


[22]   Bates-Smith directs our attention to the following testimony, which he argues is

       inadmissible hearsay:


               During the jury trial, Detective Allen testified that he “visually
               observed the CI dial a phone number” to arrange the purchase of
               heroin, (Tr. Vol. 3, p. 51), he then drove the informant to the
               place in which the CI had arranged for the purchase, outside the
               Steak N Shake in Martinsville, (Tr. Vol. 3, p. 53). Detective Allen
               then testified that he and the CI waited for a “blue four door
               passenger vehicle containing a tall, slender, black male with
               tattoos on his arms.” (Tr. Vol. 3, p. 55).


       Appellant’s Br. p. 19. According to Bates-Smith, this testimony is rooted in the

       inadmissible hearsay statements of the CI, who did not testify at trial.


[23]   We disagree. Assuming for argument’s sake that the verbal and non-verbal

       statements made by the CI amounted to statements underlying Detective

       Allen’s testimony, the statements are not hearsay because they were not offered

       for the truth of the matter asserted. Instead, they were offered to explain the

       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018          Page 11 of 13
       course of the investigation and to show the reason the officers stopped Bates-

       Smith’s vehicle. See Johnston v. State, 530 N.E.2d 1179, 1181 (Ind. 1988)

       (holding that testimony that would otherwise be hearsay is admissible when it is

       offered to explain the course of police investigation rather than for the truth of

       the matter asserted).


[24]   In some cases, it has been held that a detective’s testimony about statements

       made by a CI was, indeed, offered for the truth of the matter asserted. See

       Mason v. State, 689 N.E.2d 1233, 1235 (Ind. 1999) (detective’s testimony

       inadmissible because testimony was presented for the truth of assertion that

       defendant was dealing drugs and was not limited to explaining what prompted

       police investigation). We find that this is not such a case. Detective Allen’s

       testimony that was based on information gained from the CI was offered solely

       to explain the course of the investigation. The State proved its charges against

       Bates-Smith based on what happened after the stop; Detective Allen merely

       offered the prologue to the story. Therefore, the trial court did not err by

       admitting this testimony.


[25]   Because the statements complained of by Bates-Smith were not hearsay, their

       admission did not violate his rights under the federal Confrontation Clause.

       See, e.g., Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014) (observing

       that “if a statement is either nontestimonial or nonhearsay, the federal

       Confrontation Clause will not bar its admissibility at trial”). Therefore, this

       argument is unavailing.



       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018          Page 12 of 13
[26]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-307 | August 9, 2018   Page 13 of 13
