                                                                     FILED
MEMORANDUM DECISION                                              Jul 21 2016, 8:54 am

                                                                     CLERK
Pursuant to Ind. Appellate Rule 65(D),                           Indiana Supreme Court
                                                                    Court of Appeals
this Memorandum Decision shall not be                                 and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Special Assistant to the State Public                    Attorney General of Indiana
Defender
Wieneke Law Office, LLC                                  Justin F. Roebel
Brooklyn, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George Dixon,                                            July 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1601-CR-312
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         84D01-1301-FB-212



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016      Page 1 of 9
                                             Case Summary
[1]   A confidential police informant drove to the home of George Dixon, who sold

      her cocaine, and then drove to a staging area to meet the police officers who

      had arranged and observed the controlled buy. Unbeknownst to the officers,

      the informant’s driver’s license was suspended. The State charged Dixon with

      class B felony dealing in cocaine, and a jury found him guilty as charged.


[2]   Dixon asserts that his conviction should be overturned, claiming that the

      officers engaged in “outrageously dangerous” behavior by arranging for the

      informant to drive when it was illegal for her to do so and that the trial court

      therefore erred in admitting evidence regarding the controlled buy. Appellant’s

      Br. at 4. We conclude that Dixon waived this issue by failing to object to

      testimony regarding the controlled buy and the cocaine at trial. Waiver

      notwithstanding, we conclude that the behavior of the officers, who were

      unaware that the informant’s license was suspended, was not outrageously

      dangerous. Therefore, we affirm Dixon’s conviction.


                                  Facts and Procedural History
[3]   On the afternoon of September 10, 2012, police officers from the Vigo County

      Drug Task Force met with a confidential informant at a staging area to organize

      a controlled buy of cocaine from Dixon. Martin Dooley, the lead detective,

      had the informant call Dixon to arrange the purchase of $100 worth of cocaine.

      Detective Dooley searched the informant’s clothing and car, which she did not

      own, and equipped her with $100 in buy money and an audiovisual device that


      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 2 of 9
      was used to record the buy. The informant drove to Dixon’s home, followed by

      Detective Dooley and other officers. Dixon got into the informant’s car, asked

      her to drive around, and gave her a plastic baggie corner containing white

      powder in exchange for the $100. The informant returned Dixon to his home,

      met the officers at the staging area, and gave the powder to Detective Dooley.

      The detective field-tested the powder, which tested positive for cocaine. A

      forensic scientist at the Indiana State Police laboratory later determined that the

      powder weighed .86 grams and contained cocaine.


[4]   The State charged Dixon with class B felony dealing in cocaine. Dixon filed a

      motion to suppress “all property seized by the arresting officers, all observations

      made by the arresting officers, and all statements and conduct made by

      [Dixon],” asserting that the informant “had a suspended driver’s license at the

      time of the controlled buy” and that the officers “acted in bad faith when they

      knowingly/negligently put a[n] unlicensed driver behind the wheel of a car that

      was not hers for the purpose of obtaining a controlled buy from [Dixon].”

      Appellant’s App. at 70, 71. At the suppression hearing, Detective Dooley

      testified that he did not become aware that the informant’s license was

      suspended until after the controlled buy; that he was not aware if the informant

      had insurance on the car, which he did not “believe” was hers; that the

      informant stopped at “stop signs and stop lights” during the operation; and that

      he had assumed that the informant had been cleared to drive in prior controlled

      buy operations. Suppression Tr. at 49, 35. Dixon offered into evidence the

      informant’s official driver record, which reflected her suspended status as well


      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 3 of 9
      as numerous instances of driving while suspended, speeding, and failure to

      provide proof of insurance. Defendant’s Suppression Ex. D. The informant

      did not testify at the hearing. The trial court denied Dixon’s motion to

      suppress, concluding that the police conduct was not so “outrageously

      dangerous” as to justify excluding evidence. Appellant’s App. at 134.


[5]   At Dixon’s jury trial, Detective Dooley testified without objection about the

      controlled buy, that the powder field-tested positive for cocaine, and that the

      State Police lab confirmed that the powder contained cocaine. The State Police

      forensic scientist testified without objection that the powder contained cocaine

      and weighed .86 grams. Tr. at 173. The informant did not testify. Dixon took

      the stand and admitted that he sold cocaine to the informant but claimed that

      he had been entrapped. The jury found him guilty as charged.


                                     Discussion and Decision
[6]   Dixon argues that the trial court erred in admitting evidence regarding the

      controlled buy at trial. “We review rulings on the admission of evidence for an

      abuse of discretion. An abuse of discretion occurred if the trial court

      misinterpreted the law or if its decision was clearly against the logic and effect

      of the facts and circumstances before it.” Miles v. State, 51 N.E.3d 305, 309-10

      (Ind. Ct. App. 2016) (citation omitted), trans. denied. More specifically, Dixon

      contends that the evidence should have been excluded because the police

      officers’ use of an unlicensed driver to conduct the controlled buy was




      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 4 of 9
      “outrageously dangerous,” citing Osborne v. State, 805 N.E.2d 435 (Ind. Ct.

      App. 2004), trans. denied.


[7]   To preserve a claim of error in the admission of evidence, a party must object

      each time the allegedly inadmissible evidence is offered. Evans v. State, 30

      N.E.3d 769, 776 (Ind. Ct. App. 2015), trans. denied. Failure to do so results in

      waiver of the issue on appeal. Id. Although Dixon timely objected to

      evidentiary exhibits such as the cocaine, the audio recording of the controlled

      buy, and the State Police lab test results, he failed to object to Detective

      Dooley’s testimony regarding the controlled buy and the cocaine as well as the

      forensic scientist’s testimony regarding the cocaine. Consequently, he has

      waived this issue for review. See id. (finding waiver where defendant objected

      to photo of money but failed to object to testimony that money had been found

      on his person).


[8]   Waiver notwithstanding, we find no abuse of discretion here. In Osborne, David

      Turner told police that “he would be bringing Osborne to French Lick and that

      Osborne had cocaine in his possession.” 805 N.E.2d at 437. Police arranged

      for Turner, who was on home detention and told them that “he had been

      drinking all day and had consumed cocaine,” to drive through town over the

      posted speed limit so that they could stop his car and search Osborne for

      cocaine. Id. This plan was carried out, and Osborne was charged with cocaine

      possession. He “filed a motion to suppress the evidence seized during the

      traffic stop[,]” which was denied. Id. at 438.



      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 5 of 9
[9]   On appeal, another panel of this Court noted that “the Indiana constitution

      provides more liberal protection against search and seizure than does the federal

      constitution[,]” that “when evidence is obtained in violation of the constitution,

      such evidence may not be used against a defendant at trial[,]” and that “the

      exclusionary rule is designed to deter police misconduct.” Id. at 439 (citation,

      quotation marks, and alteration omitted). The Osborne court stated,


              Our research has revealed no reported case in any American
              jurisdiction similar to the circumstances presented here. The
              nearest available analogy is to a “controlled buy” situation. 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.
              Indiana courts have long approved of this investigatory practice.
              The key to the controlled buy is that the police are in control of
              the situation at all times. However, this case is easily
              distinguished from a controlled buy in light of compelling public
              policy concerns.

              ….

              Inasmuch as it is a policy of the utmost importance to the State of
              Indiana to prevent impaired driving, we find the police officers’
              conduct in this case to have been outrageously dangerous. The
              state trooper knew from the conversation with Turner that
              Turner had been drinking and consuming cocaine that day. The
              police flouted Indiana’s public policy by agreeing to a plan that
              required Turner, a man they knew to have ingested both alcohol
              and cocaine, to drive upon our public highways in such a
              condition. They released a missile over which they had no
              control in the form of a Honda Prelude onto the streets of
              southern Indiana by not only failing to prevent Turner from
              driving, but actually encouraging him to drive by agreeing to and
              acting upon this plan. We cannot condone the actions of the
      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 6 of 9
                police under these circumstances, and we extend the
                exclusionary rule to cover not only illegal conduct, but also
                outrageously dangerous conduct such as this by the police.

                ….

                Moreover, the police by their actions encouraged Turner to
                violate the terms of his home detention.…

                ….

                …. Because the actions of the police could certainly be
                considered outrageously dangerous in these circumstances, we
                find that the intrusion here by the police was unreasonable.
                Inasmuch as reasonableness is the touchstone of the
                constitutional analysis, Osborne’s rights under Indiana
                Constitution Article I, Section 11 were violated.[ 1] Thus, his
                motion to suppress should have been granted.


       Id. at 439-41 (citations omitted).


[10]   Dixon argues that,


                [j]ust as in Osborne, the police officers in this case were not
                reacting to a dangerous situation when they allowed the
                confidential informant to drive on a suspended license and
                without insurance. While it is true that [Detective Dooley]
                testified he was not aware the CI had a suspended license, this
                was something that the officer could (and should) have known
                before working with the informant. Like the officers in Osborne,



       1
         Article 1, Section 11 states, “The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon
       probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and
       the person or thing to be seized.”

       Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016                 Page 7 of 9
                the officers here were so motivated by their desire to apprehend
                Dixon that they were blinded to the obvious dangers of not
                performing a routine background check on the informant to
                ensure that it was safe for her to drive.


       Appellant’s Br. at 9-10. 2


[11]   The State asserts that, “[u]nlike the informant in Osborne, the informant in this

       case was not intoxicated and was not directed to violate any terms of

       incarceration. Further, unlike in Osborne, the illegal conduct at issue—driving

       while suspended—was not encouraged or directed by the police.” Appellee’s

       Br. at 11. These assertions are supported by the record. Detective Dooley

       testified that he was unaware of the informant’s license suspension and had

       simply assumed that she had been cleared to drive in prior controlled buy

       operations. Although the better practice would have been to check the

       informant’s driving and insurance status before conducting the controlled buy,

       we cannot conclude that the failure to do so was, or resulted in, outrageously

       dangerous behavior in this case. Indeed, Detective Dooley testified that he and

       his fellow officers “observed [the informant] throughout the entire process” and

       that she stopped at “stop signs and stop lights.” Suppression Tr. at 54, 34. In

       the words of the Osborne court, the informant was “under strict police




       2
         Dixon also asserts that “the informant apparently lied to Detective Dooley and told him that she was
       licensed to drive. Had he run a license check, he would have discovered that she lacked credibility and could
       not be trusted as an informant.” Appellant’s Br. at 10 (citing Suppression Tr. at 32). Detective Dooley
       testified, “[W]e usually ask [confidential informants] what their status is on their license.” Suppression Tr. at
       32 (emphasis added). He did not specifically state that he posed this question to the informant in this case.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016                   Page 8 of 9
       supervision[,]” and “the police [were] in control of the situation at all times.”

       805 N.E.2d at 439.


[12]   Under these facts and circumstances, we cannot conclude that the actions of the

       police were outrageously dangerous. As such, waiver notwithstanding, we

       cannot conclude that the trial court abused its discretion in admitting evidence

       regarding the controlled buy. We affirm Dixon’s conviction.


[13]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016   Page 9 of 9
