Brandon T. Smith v. State of Indiana (mem. dec.)

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