                                                                                   FILED
                                                                              Feb 13 2019, 10:52 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                        Angelus T. Kocoshis
      Attorney General of Indiana                                Muncie, Indiana
      Laura R. Anderson
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          February 13, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-CR-1746
              v.                                                 Appeal from the Delaware Circuit
                                                                 Court
      Dusten T. Vance,                                           The Honorable Kimberly S. Dowling,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.
                                                                 18C02-1806-F5-92



      Bailey, Judge.



                                            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

      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                            Page 1 of 15
      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 short time. When visual surveillance was restored, officers

      observed Target leaving Vance’s residence. Target provided CI with 1.5 grams




      1
       An undercover officer was providing transportation to Target on this occasion. On the second and third
      occasions, CI was providing transportation to Target.

      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                         Page 2 of 15
      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.)




      2
          Ind. Code § 35-48-4-6(a).
      3
          I.C. § 35-45-1-5.


      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019   Page 3 of 15
[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




      4
        The State is permitted to appeal from “an order granting a motion to suppress evidence, if the ultimate
      effect of the order is to preclude further prosecution of one (1) or more counts of an information or
      indictment.” Id.

      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                             Page 4 of 15
      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:


              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


      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019       Page 5 of 15
       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, 1019 (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




       5
         We disagree with the dissent’s contention that we utilize an inappropriate standard of review. Although
       McIlquham did indeed involve a warrantless search, the ruling on review was – as in this case – a trial court’s
       ruling upon a motion to suppress. In Methene v. State, 720 N.E.2d 384, 387 (Ind. Ct. App. 1999), we applied
       the “standard similar to other sufficiency matters” to review a ruling on a motion to suppress a residential
       search warrant.

       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                              Page 6 of 15
       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 supervision and control purchases illegal drugs from a dealer. A

       controlled buy has been described as follows:


               A controlled buy consists of searching the person who is to act as
               the buyer, removing all personal effects, giving him money with
               which to make the purchase, and then sending him into the
               residence in question. Upon his return he is again searched for
               contraband. Except for what actually transpires within the
               residence, the entire transaction takes place under the direct
               observation of the police. They ascertain that the buyer goes
               directly to the residence and returns directly, and they closely
               watch all entrances to the residence throughout the transaction.


       Mills v. State, 177 Ind. App. 432, 435, 379 N.E.2d 1023, 1026 (1978).


[13]   In Watson, we observed:


               Presumably, the pre-buy search establishes the person making the
               purchase for the police does not have contraband prior to the
               transaction with the target. Surveillance during the transaction

       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019       Page 7 of 15
               establishes the target as the source of the contraband and
               excludes other sources of contraband. Thus, any contraband
               discovered during a search after the transaction is attributable to
               the target of the controlled buy.


       839 N.E.2d at 1294.


[14]   The key to the controlled buy is that the police are always in control of the

       situation. But the instant circumstances were not those of a previously-searched

       buyer entering a residence. Police did not maintain strict control in this alleged

       tri-level (buyer-dealer-source) transaction where the alleged middle-man, who

       was not searched and did not act as an agent of police, moved about on his own

       volition and police surveillance was interrupted. And although the cocaine

       ultimately produced would arguably have been “attributable to the target,” see

       id., the sole connection between Target and Vance’s residence, the premises to

       be searched, was that Target was seen leaving the residence. Viewing someone

       exit a residence would not lead a reasonable person to “believe that a search of

       those premises will uncover evidence of a crime.” Esquerdo, 640 N.E.2d at

       1019. The search warrant, not supported by probable cause, was invalid under

       the Fourth Amendment.


[15]   However, that does not end our inquiry. The State asks that we find the good-

       faith exception to the exclusionary rule applicable. In United States v. Leon, 468

       U.S. 897, 920, 104 S.Ct. 3405 (1984), the Supreme Court held that the

       exclusionary rule does not require the suppression of evidence obtained in

       reliance on a defective search warrant if the police relied on the warrant in


       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019         Page 8 of 15
       objective good faith. “However, Leon cautioned that certain police conduct

       would not qualify for this exception, including where (1) the magistrate is

       ‘misled by information in an affidavit that the affiant knew was false or would

       have known was false except for his reckless disregard for the truth’; or (2) the

       warrant was based on an affidavit ‘so lacking in indicia of probable cause as to

       render official belief in its existence entirely unreasonable.’” Jaggers v. State, 687

       N.E.2d 180, 184 (Ind. 1997) (citing Leon, 468 U.S. at 923). In discussing the

       good faith exception to the exclusionary rule, our supreme court additionally

       observed: “In applying Leon, our cases have stressed the importance of

       accurately presenting all relevant information to the magistrate. … Only then

       can the magistrate make the neutral and detached determination the Fourth

       Amendment requires of whether probable cause exists.” Id. at 185 (internal

       citation omitted).


[16]   A probable cause affidavit must include “material facts” known to law

       enforcement. Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007), trans.

       denied. “The typical formulation of [omitted] ‘material’ facts is that they cast

       doubt on the existence of probable cause.” Query v. State, 745 N.E.2d 769, 772

       (Ind. 2001). Although it may not be practical to include all information related

       to an investigation in a probable cause affidavit, “the best course for police to

       follow is to include any information that could conceivably affect a probable

       cause determination.” Ware, 859 N.E.2d at 719-20.


[17]   When material information is omitted from a probable cause affidavit, such

       omission will invalidate a warrant if (1) the police omitted facts with the intent

       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019       Page 9 of 15
       to make the affidavit misleading or with reckless disregard for whether it would

       be misleading, and (2) the affidavit supplemented with the omitted information

       would have been insufficient to support a finding of probable cause. Id. at 718.

       We have recognized that omissions from a probable cause affidavit are made

       with reckless disregard “if an officer withholds a fact in his ken that ‘[a]ny

       reasonable person would have known that this was the kind of thing the judge

       would wish to know.’” Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct. App. 2016)

       (quoting Wilson v. Russo, 212 F.3d 781, 788 (3rd Cir. 2000)).


[18]   Here, the affidavit represented that multiple “controlled buys” had been

       conducted with CI and Target but did not address irregularities such as Target

       not being searched. The affidavit also stated that Target had exited the Turner

       Street residence before providing CI with cocaine on the third occasion. Then,

       outside the context of the drug buys, the affidavit stated that Vance was an

       occupant of the Turner Street residence. This permits an inference that Target

       and Vance were the same person. Whether a drug dealer is an occupant of, or

       simply a visitor to, a residence is “information that could conceivably affect a

       probable cause determination.” Ware, 859 N.E.2d at 720. The likelihood that

       evidence of a crime will be found at the home of a dealer is arguably greater

       than the likelihood that evidence of a crime will be found at a residence he

       visited. Had the affidavit herein been supplemented with the fact that there

       were two individuals as opposed to one, it would have been made evident to the

       issuing magistrate that the Target had no known connection with the Turner

       Street residence apart from having been seen exiting it before consummating a


       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019     Page 10 of 15
       third drug sale with CI. The good faith exception will not reward the creation

       of a misleading impression to avoid revealing the clear absence of probable

       cause. As the Court observed in Jaggers: “Leon’s rationale is not advanced by

       effectively allowing the State to claim good faith reliance on a warrant after a

       less than faithful effort to establish probable cause to obtain it.” 687 N.E.2d at

       186. The good faith exception “cannot save the illegally seized evidence” in

       these circumstances. See id.



                                                Conclusion
[19]   The evidence obtained at Vance’s residence was seized in violation of his

       Fourth Amendment rights and was properly suppressed.


[20]   Affirmed.


       Brown, J., concurs.
       Bradford, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019    Page 11 of 15
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          Court of Appeals Case No.
                                                                 18A-CR-1746
      Appellant-Plaintiff,

              v.

      Dusten T. Vance,
      Appellee-Defendant.




      Bradford, Judge, dissenting.


[1]   Because I believe the search warrant was supported by probable cause, I

      respectfully dissent.


[2]   The State contends that the trial court erred by concluding that the previously-

      issued search warrant lacked probable cause. “[The reviewing courts] 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.” Watkins v. State, 85 N.E.3d 597, 603 (Ind. 2017)

      (internal quotations and citations omitted). Reviewing courts include both the

      trial court ruling on a motion to suppress and the appellate court reviewing that

      decision. Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997).



      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                  Page 12 of 15
        Probable cause is a fluid concept incapable of precise definition
        and must be decided based on the facts of each case. [Mehring v.
        State, 884 N.E.2d 371, 376 (Ind. Ct. App. 2008)] (citing [Figert
        686 N.E.2d at 830]). In deciding whether to issue a search
        warrant, the issuing magistrate’s task is simply to make a
        “practical, common-sense decision whether, given all the
        circumstances set forth in the affidavit, there is a fair probability
        that evidence of a crime will be found in a particular place.” Id. at
        376–77 (citing State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006)).


Casady v. State, 934 N.E.2d 1181, 1188–89 (Ind. Ct. App. 2010), trans.

denied. The reviewing court’s duty is to determine whether the issuing

magistrate had a substantial basis for concluding that probable cause

existed. Id. at 1189. “While we review the question de novo, we give

significant deference to the issuing magistrate’s determination and focus

on whether reasonable inferences drawn from the totality of the

evidence support the finding of probable cause.” Id. When deciding

whether the affidavit provided probable cause for the issuance of a

search warrant, doubtful cases are to be resolved in favor of upholding

the warrant. Id.6




6
  The Majority uses a standard of review which was used by the Indiana Supreme Court to review a trial
court’s decision regarding a motion to suppress evidence obtained by a warrantless police search; however,
this case regards whether the issued search warrant was supported by probable cause. Therefore, the correct
standard should give deference to the issuing trial court’s determination of probable cause rather than the
reviewing trial court’s decision on the motion to suppress. See Watkins, 85 N.E.3d at 599 (“[W]e give great
deference to the prior judge’s initial, underlying probable cause finding—affirming if a substantial basis

Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                          Page 13 of 15
[3]   Given the totality of the circumstances set forth by the affiant, the trial court

      made a common-sense determination that there was a fair probability that

      controlled substances would be found in the Turner Street residence (“the

      Residence”) before issuing the warrant. First, all three controlled buys followed

      a consistent pattern.7 The Target exited the vehicle and entered either a hotel or

      residence. Upon exiting the structure, the Target returned to the vehicle and

      dealt the CI a controlled substance. The third controlled buy was no exception.

      The Target exited the CI’s vehicle and entered the Residence. After exiting the

      Residence, the Target returned to the vehicle and delivered the controlled

      substance to the CI. Moreover, the affiant averred that through his training and

      experience he had learned that individuals involved in drug trafficking use

      residences in which they do not live to store the controlled substances that they

      sell. Finally, the affiant averred that the Residence is a well-known drug house

      and has been the subject of a search by the Muncie SWAT on a prior occasion.




      supported it and resolving doubtful cases in favor of upholding the warrant.”) (internal quotations and
      citations omitted).
      7
        The fact that the Target was never searched by the State before going into the Residence does not prevent
      these three drug deals from being classified as controlled buys. For a buy to be controlled, only one party, i.e.
      the CI, will be controlled by law enforcement. A useful if not universally-applicable definition of a controlled
      buy involves a procedure where “law enforcement officers search the informant to make sure that she does not
      have any illegal narcotics before the purchase; officers provide the informant with marked bills with which to
      purchase the drugs; officers place a body wire on the informant and monitor all conversations during the
      purchase; the informant is placed under visual surveillance during the purchase; and the informant turns over
      the contraband to officers immediately after the purchase.” U.S. v. Clyburn, 24 F.3d 613, 615 n.1 (4th Cir.
      1994) (emphases added). For a case with a controlled buy similar to the current matter, see U.S. v. Bacon, 2018
      WL 4483181 *2–3 (N.D. Ind. 2018) (acknowledging that two controlled buys occurred when a third party
      took money from a CI, entered the residence in question, exited the residence, and dealt the CI drugs, even
      though the third party was neither under the Government’s control nor searched by the Government at any
      time).

      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019                              Page 14 of 15
      This evidence leads to the common-sense and logical inference that the

      Residence was used as a place to store controlled substances. Therefore, the

      trial court had a substantial basis for concluding that probable cause existed

      before issuing the search warrant.


[4]   Because I would reverse the trial court’s order granting Vance’s motion to

      suppress, I respectfully dissent.




      Court of Appeals of Indiana | Opinion 18A-CR-1746 | February 13, 2019   Page 15 of 15
