                                                                            Oct 07 2013, 5:58 am

FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

TERESA L. CATALDO                             GREGORY F. ZOELLER
Cataldo Law Offices, Inc.                     Attorney General of Indiana
Bristol, Indiana
                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DORIAN GRAY JACKSON,                          )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )       No. 20A05-1210-CR-572
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                               Cause No. 20C01-1104-FA-9



                                    October 7, 2013


                              OPINION - FOR PUBLICATION


BROWN, Judge
       Dorian Gray Jackson appeals his convictions for possession of a narcotic drug

with intent to deliver as a class A felony, two counts of dealing in a narcotic drug as class

B felonies, and possession of marijuana as a class A misdemeanor. Jackson raises one

issue, which we revise and restate as whether the trial court abused its discretion by

admitting evidence obtained following the traffic stop and arrest of Jackson. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Elkhart County Sheriff’s Undercover Officer 193 (“UC 193”), a member of the

Interdiction and Covert Enforcement Unit (the “ICE Unit”), a countywide drug task force

for Elkhart County, received information that two cooperating sources wanted to work

together to identify and target their source who was identified as Dorian Stephens

residing in the Overlook Apartments in Elkhart. On March 14, 2011, UC 193 and other

officers met with Cooperating Sources 11-005 (“CS 11-005”) and 11-006 (“CS 11-006”).

The police searched CS 11-005 and CS 11-006 and CS 11-006’s vehicle. CS 11-005

placed a phone call to Stephens advising that they were going to be on their way for a

purchase. After twenty or thirty minutes, Stephens called back and said that he was ready

to meet and directed them to drive to the playground area of Overlook Apartments.

       UC 193 accompanied the cooperating sources in CS 11-006’s vehicle to the

Overlook Apartments. Shortly after arriving, a white Chevrolet Suburban approached

them and stopped, and the cooperating sources recognized the driver as Stephens.

Jackson, Stephens’ son, exited the Suburban, entered CS 11-006’s vehicle, received

money from CS 11-005, and gave heroin to CS 11-005. After a brief conversation,

Jackson exited the vehicle.

                                             2
       On March 29, 2011, CS 11-005 called Jackson, and Jackson instructed him to go

to a different location. Prior to the buy, the cooperating sources and CS 11-006’s vehicle

were searched. CS 11-006 drove CS 11-005 and UC 193 to the location, and Jackson

entered the vehicle. CS 11-005 handed Jackson money, and Jackson handed him heroin.

       The police observed Jackson in a white Dodge Stratus on other buys and during

surveillance. The cooperating sources had told police that they believed that the Stratus

was used to go to Chicago to retrieve more heroin.              Without a search warrant,

Undercover Officer 8621 placed a GPS device on the Stratus. The GPS device was used

to assist with visual surveillance and to determine that the Stratus had gone to Chicago

and was traveling back to the Elkhart area on March 30, 2011. Once the police had

observed that the Stratus was going to Chicago, they decided that a traffic stop would be

initiated, if possible, when the Stratus returned to Elkhart.

       Elkhart County Sheriff’s Detective Jeremy Stout positioned his vehicle on County

Road 6 and observed the tracking device on his computer and that the “GPS unit was

indicating that the vehicle on which the device was placed was traveling eastbound on

Cleveland Road, which was also County Road 6.” Transcript at 147. Detective Stout did

not see the vehicle until its approach of Ash Road but knew of its location because of the

GPS.    Detective Stout was specifically planning to arrest Jackson, was not just

performing traffic control, and was aware of the location of the Stratus because of the

GPS tracking.     The driver of the Stratus stopped at Ash Road on County Road 6,

activated the turn signal, and turned south. Based upon the driver’s failure to signal 200

feet prior to making a turn, Detective Stout initiated a traffic stop and observed that

                                              3
Jackson was the driver. Detective Stout asked Jackson to step out of the vehicle and

noticed that Jackson’s belt was undone, his pants were hanging down, and he was

attempting to pull up his pants as he was stepping out of the vehicle. Detective Stout

arrested Jackson, searched him, and discovered a baggie of heroin and a baggie of

marijuana in Jackson’s boxer briefs.

        On April 4, 2011, the State charged Jackson with: Count I, dealing in a narcotic

drug as a class A felony; Count II, dealing in a narcotic drug as a class B felony; Count

III, dealing in a narcotic drug as a class B felony;1 Count IV, dealing in a narcotic drug as

a class B felony; and Count V, possession of marijuana as a class A misdemeanor. 2 On

September 28, 2011, Jackson filed a motion to suppress all evidence located on Jackson’s

person and in his vehicle, the evidence obtained from a cell phone, and all evidence from

the controlled buys. Jackson argued that his rights under the Fourth Amendment of the

United States Constitution and Article 1, Section 11 of the Indiana Constitution were

violated. After a hearing, the court denied Jackson’s motion to suppress. Specifically,

the court’s order states in part:

        15.     Finally, [Jackson] challenges the officers’ use of the GPS device in
                this case. Recently, the United States Supreme Court held that the
                government’s warrantless attachment of a GPS device to a vehicle,
                and its use of that device to monitor the vehicle’s movements,
                constitutes a prohibited search under the Fourth Amendment.
                United States v. Jones, [132 S. Ct. 945 (2012)]. Accordingly, any
                evidence or information obtained by the ICE Unit in this case solely



        1
         Count III related to a controlled buy that occurred on March 16, 2011, but this charge was later
dismissed.
        2
           Counts I and V related to March 30, 2011, Count II related to March 14, 2011, and Count IV
related to March 29, 2011.
                                                   4
             as a result of the GPS tracking device which was attached to
             [Jackson’s] vehicle is inadmissible.

      16.    Notwithstanding that result, the testimony in this case establishes
             that the only information learned via the tracking device was that
             [Jackson] traveled to and from Chicago. Law enforcement neither
             tracked or investigated any specific locations [Jackson] may have
             frequented in Chicago, nor obtained any information regarding drug
             trafficking. In this regard, government officials did not discover
             new, previously unknown activities or locations of [Jackson] via the
             GPS device. ICE Unit officers were already aware of the vehicle
             [Jackson] operated and knew that he had engaged in three illegal
             drug transactions. [Jackson’s] vehicle was stopped for a traffic
             violation after visual surveillance in Elkhart County, Indiana. ICE
             Unit officers had probable cause for a felony arrest of [Jackson]
             based on the three prior sales of heroin, and they seized additional
             illegal narcotics in conjunction with that arrest during a lawful traffic
             stop. Therefore, the evidence [Jackson] seeks to suppress was
             discovered irrespective of the GPS device and is, thus, admissible.
             [Jackson’s] assertion that the GPS device also violated Article I,
             Section 11 of the Indiana Constitution, although unsupported by
             cogent argument or citation to authority, is rendered moot given the
             United States Supreme Court’s ruling in Jones, supra.

      17.    A trial court has broad discretion in ruling on the admissibility of
             evidence and will be reversed only upon a finding of an abuse of
             discretion. An abuse of discretion involves a decision that is clearly
             against the logic and effect of the facts and circumstances before the
             court. Washington v. State, 784 N.E.2d 584, 586-87 (Ind. Ct. App.
             2003). In the case currently before the court, considering all facts
             and the totality of the circumstances, the court hereby finds that
             there was probable cause for [Jackson’s] arrest, and any evidence
             obtained as a result of that arrest and/or the traffic stop is admissible.

Appellant’s Appendix at 44-45.

      The State moved to dismiss Count III, and the court granted the motion. During

the bench trial, Jackson’s counsel objected at various points based upon the same reasons

raised in the motion to suppress, and the court overruled the objections. The court found

Jackson guilty of Counts I, II, IV, and V, and sentenced him to thirty-seven years with

                                             5
four years suspended for Count I, possession of a narcotic drug as a class A felony,

fifteen years for Count II, dealing in a narcotic drug as a class B felony, fifteen years for

Count IV, dealing in a narcotic drug as a class B felony, and one year for Count V,

possession of marijuana as a class A misdemeanor. The court ordered that the sentence

imposed under Count V be served concurrent with the sentence imposed under Count I

and that the sentences for Counts II and IV be served concurrent with each other but

consecutive to Count I. Thus, the court sentenced Jackson to an aggregate sentence of

fifty-two years with four years suspended.

                                      DISCUSSION

       The issue is whether the trial court abused its discretion by admitting evidence

obtained following the traffic stop and arrest of Jackson. Although Jackson originally

challenged the admission of the evidence through a motion to suppress, he now

challenges the admission of the evidence at trial. Thus, the issue is appropriately framed

as whether the trial court abused its discretion by admitting the evidence. See Jefferson

v. State, 891 N.E.2d 77, 80 (Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834

N.E.2d 1061, 1067 (Ind. Ct. App. 2005).

       We review the trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied.

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

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if

the trial court’s decision was an abuse of discretion, we will not reverse if the admission



                                             6
constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g

denied, trans. denied.

        While Jackson moved to suppress all evidence obtained as a result of the traffic

stop as well as evidence from the controlled buys, he challenges only the admission of

evidence obtained as a result of the traffic stop.               Jackson argues that the evidence

obtained following the traffic stop constituted fruit of the poisonous tree. He cites United

States v. Jones, 132 S. Ct. 945 (2012), and argues that the trial court “attempted to carve

out its own exception to the finding of Jones to allow the inadmissible evidence and

testimony in at trial resulting in [Jackson’s] conviction.” Appellant’s Brief at 7. Jackson

argues that the “officers’ warrantless installation and monitoring of the GPS device

violated the Fourth Amendment.”3 Id. at 8 (citing Kentucky v. King, 131 S. Ct. 1849,

1858 (2011)). He contends that none of the exceptions to the warrant requirement apply,

and that the State failed to show that the officers stopping him believed him to be armed

and dangerous and there was no testimony that the arresting officers perceived any item

felt by a patdown.

        The State asserts that the evidence of the baggie containing heroin and the baggie

containing marijuana were not fruit from the installation of the GPS tracking device and

were found incident to a valid arrest. The State contends that, without any reference to


        3
          In his appellate brief, Jackson cites Article 1, Section 11 of the Indiana Constitution. However,
Jackson fails to provide an independent analysis of Article 1, Section 11 of the Indiana Constitution;
rather his focus is on the Fourth Amendment of the U.S. Constitution. Failure to make a cogent argument
under Article 1, Section 11 of the Indiana Constitution constitutes waiver of the issue on appeal. See
Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (concluding state constitutional claim waived where
defendant presented no authority or independent analysis supporting separate standard under state
constitution); West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (citations omitted); Ind. Appellate Rule
46(A)(8).
                                                    7
the GPS, police knew that: (1) Jackson had conducted three heroin transactions, one just

hours before his arrest; (2) Jackson was known to drive the white Stratus that was pulled

over for the traffic violation; and (3) police recognized Jackson as the suspect in their

drug investigation upon stopping the vehicle. The State argues that “[t]he evidence found

pursuant to the proper search incident to arrest was not the result of the GPS device, and

any conceivable causal connection between the installation of the GPS and the

procurement of the evidence is extremely attenuated at best.” Appellee’s Brief at 12.

The State’s position is that “the search yielding the evidence [Jackson] claims was

wrongly admitted was a search incident to a valid arrest – not the installation of a GPS

device on the Stratus he was driving when he was stopped.” Id. at 10. The State also

contends that “the police clearly acted in good faith with respect to the installation of the

GPS, as case law at the time held that the warrantless use of such devices did not offend

the Fourth Amendment.” Id. at 12.

       The Fourth Amendment to the United States Constitution provides:

       The 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.

If the search is conducted without a warrant, the burden is upon the State to prove that an

exception to the warrant requirement existed at the time of the search. Black v. State,

810 N.E.2d 713, 715 (Ind. 2004).

       In United States v. Jones, 132 S. Ct. 945, 949 (2012), the United States Supreme

Court held that the government’s installation of a GPS device on a target’s vehicle and

                                             8
use of the device to track the vehicle’s movements constituted a “search” under the

Fourth Amendment. The Court decided Jones on January 23, 2012, months after the

police in this case placed the GPS device on the Stratus and after Jackson was arrested.

132 S. Ct. at 949. The State does not argue that the placement of the GPS on the Stratus

falls under an exception to the warrant requirement. Even assuming that the police relied

upon the GPS device to illegally pinpoint Jackson’s location, we cannot say that

exclusion is required.

       The exclusion of evidence is not the result of a simple “but for” test. Quinn v.

State, 792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (citing U.S. v. Green, 111 F.3d 515, 520

(7th Cir. 1997), cert. denied, 522 U.S. 973, 118 S. Ct. 427 (1997)), trans. denied. Not all

evidence is the fruit of the poisonous tree because it is the result of an illegal search or

seizure. Id. (citing Green, 111 F.3d at 520 (citing Wong Sun v. United States, 371 U.S.

471, 487-488, 83 S. Ct. 407, 417-418 (1963))). “Rather, the more apt question in such a

case is whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or instead by

means sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Green,

111 F.3d at 520). “Evidence may be purged of the primary taint if the causal connection

between the illegal police conduct and the procurement of the evidence is ‘so attenuated

as to dissipate the taint of the illegal action.’” Id. (quoting Green, 111 F.3d at 521).

       “Three factors for consideration in determining whether the causal chain is

sufficiently attenuated are: ‘(1) the time elapsed between the illegality and the acquisition

of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and

                                              9
flagrancy of the official misconduct.’” Id. (quoting Green, 111 F.3d at 521 (citing Brown

v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 2261-2262 (1975))). The important

consideration in the third factor is whether the evidence came from the exploitation of

that illegality or instead by means sufficiently distinguishable to be purged of the primary

taint. Id. (citing Green, 111 F.3d at 521 (citing Wong Sun, 371 U.S. at 488, 83 S. Ct. at

417)).

         With respect to the first factor, it appears that only a short time passed between the

illegal reliance on the GPS device and the acquisition of the evidence following the

traffic stop. This weighs against finding the search attenuated. See Green, 111 F.3d at

521 (holding that five minutes between an illegal stop and the search of the car weighed

against finding the search attenuated).       However, the time span between the police

misconduct and the search is not dispositive on the question of taint. Id. Rather, we must

next consider the presence of intervening circumstances. Id.

         With respect to intervening circumstances, the record shows that Detective Stout

observed the driver of the Stratus stop at Ash Road, activate the turn signal, and then turn

south without signaling 200 feet prior to making the turn. Detective Stout initiated the

traffic stop and recognized the driver as Jackson. Detective Stout asked Jackson to step

out of the vehicle and noticed that Jackson’s belt was undone, his pants were hanging

down, and he was attempting to pull up his pants as he was stepping out of the vehicle.

Based upon Detective Stout’s observations, he was concerned for his safety in that

Jackson could have a hidden weapon, or Jackson could be hiding contraband. Based



                                               10
upon the prior controlled buys, Detective Stout had probable cause to arrest Jackson. 4

With the right to arrest Jackson came the right to conduct a search incident to an arrest.

See Merritt v. State, 488 N.E.2d 340, 342 (Ind. 1986) (“Where police have probable

cause to apprehend an individual, they are justified in conducting a limited search for the

purpose of removing weapons or other contraband within the arrestee’s control.”); Smith

v. State, 980 N.E.2d 346, 348 (Ind. Ct. App. 2012) (concluding that because the officer

had probable cause to arrest the defendant, the search was a valid search incident to

arrest, and, as such, Smith’s constitutional rights were not violated), trans. denied. We

conclude that the intervening circumstances, including the traffic infraction, the discovery

of Jackson as the driver whom the police had probable cause to arrest, and the position of

Jackson’s pants, were sufficient to dissipate any taint caused by the illegal reliance on the

GPS device.

        Finally, we look to the purpose and flagrancy of the official misconduct. The

purpose of the stop was to arrest Jackson and the police had probable cause to make the

arrest. Jackson does not argue that the police did not act in good faith in attaching the

GPS device to the Stratus. As previously mentioned, at the time that the police placed the

GPS device, the United States Supreme Court had not yet decided Jones and the Seventh

Circuit had held that GPS tracking did not constitute a search under the Fourth

Amendment. See United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007) (holding

that GPS tracking does not constitute a search under the Fourth Amendment), reh’g

denied, cert. denied. Under the circumstances, we cannot conclude that the officers’

        4
          Jackson does not argue that the police did not have probable cause to arrest him based upon the
prior controlled buys.
                                                   11
actions were flagrant or intended to exploit an illegality.        We conclude that the

circumstances were sufficient to remove the taint from any police illegality.

       For the foregoing reasons, we affirm Jackson’s convictions.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




                                            12
