Frederick Herron v. State of Indiana , 991 N.E.2d 165 ( 2013 )

FOR PUBLICATION
Jul 18 2013, 6:31 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DERICK W. STEELE GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FREDERICK HERRON, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1203-CR-224
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable William C. Menges, Jr., Judge
Cause No. 34D01-1106-FA-541
July 18, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Frederick Herron appeals his convictions of two counts of Class A felony dealing in
cocaine,1 one count of Class B felony dealing in cocaine,2 and a finding that he is an habitual
substance offender.3 He asserts the court abused its discretion when it admitted evidence
seized during and after a traffic stop. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 22, 2011, the Howard County Drug Task Force used a confidential informant,
J.G., to make a controlled purchase of cocaine. About 4:30 p.m., Detective Brad Reed
recorded a phone call between J.G. and Mike Ingle. J.G. told Ingle she wanted fifty dollars
worth of crack cocaine, and Ingle told her to come to a house on East Fischer Street in
Kokomo. Police searched J.G., wired her with recording devices, recorded serial numbers of
the money they gave her to buy the drugs, and dropped her off near Ingle’s location.
J.G. rode a bicycle to the arranged meeting place. When she arrived, Ingle was
smoking crack with several other people. J.G. gave Ingle $50, and he placed a phone call.
After ending the call, Ingle told J.G. his supplier was on the way. Moments later, a white
Chrysler Pacifica parked in the alley next to the house where J.G. and Ingle were. Ingle sat
briefly in the passenger seat of the Pacifica, then returned to the house. He gave J.G. a rock
of cocaine, she broke off a small piece for him, and she left. Police followed the Pacifica a
short distance to record the license plate number and then circled back to pick up J.G., who
1
One was based on the sale occurring within 1000 feet of a public park, see Ind. Code §§ 35-48-4-1(a)(1) &
35-48-4-1(b)(3), while the other was based on Herron possessing more than three grams of cocaine with an
intent to deliver, see Ind. Code §§ 35-48-4-1(a)(2) & 35-48-4-1(b)(1).
2
Ind. Code § 35-48-4-1(a)(1).
3
Ind. Code § 35-50-2-10.
2
turned over the cocaine. A search confirmed J.G. did not have the purchase money or other
drugs.
Shortly before that controlled purchase, the Task Force had received information that
a person named Frederick Herron was selling cocaine in Kokomo from a white Chrysler
Pacifica. Because Ingle’s supplier had arrived in a car matching that description, police
decided to attempt a second purchase from Ingle that day, to see if the white Chrysler
Pacifica would arrive again after Ingle called his supplier. J.G. again called Ingle, who
agreed to help her buy another $80 worth of cocaine. Ingle told J.G. to come to his house on
Webster Street.
Officers once again searched J.G., placed a wire on her, gave her money, and sent her
to meet Ingle. When J.G. arrived, Ingle was outside his house. J.G. gave Ingle the buy
money, Ingle made a phone call, and Ingle told J.G. his supplier was on the way. A short
time later, a white Chrysler Pacifica arrived. An officer determined the Pacifica was
registered to Herron. Herron exited the Pacifica, talked to Ingle and to a man seated inside a
blue vehicle, adjusted the Pacifica’s headlight with Ingle’s assistance, and then left. Ingle
gave the cocaine to J.G, who broke off a piece for Ingle, kept the rest for herself, and left.
Before Herron travelled two blocks, police stopped Herron because the window
tinting on Herron’s car was too dark to permit officers to identify the gender or ethnicity of
the driver.4 As Officer Chad VanCamp approached the driver’s window of Herron’s vehicle,
4
Officer VanCamp testified that, later in the traffic stop, he used a “tint meter” to check the tinting on Herron’s
windows, determined the tint was darker than permitted by law, and issued a citation for that violation. (Tr. at
27.)
3
Sergeant Tonda Cockrell approached the passenger window. Because of the window tint, the
officers could not determine how many people were in the car, so they ordered Herron to roll
down his windows. In plain view on the middle console of the car, Sergeant Cockrell saw
some $20-dollar bills, which she believed was the money from the just completed purchase.
Officer VanCamp ordered Herron to exit the vehicle.5 After “at least ten” requests,
(Tr. at 248), Herron exited his car, and Officer VanCamp placed him in handcuffs and “read
him the Miranda Warning.” (Id. at 26.) Officer VanCamp then conducted a pat-down search
of Herron and found a “large amount” of money in his right front pocket and “a smaller
bundle” in his left pocket. (Id. at 249.) Herron said he was not employed and said his
brother gave him $2000 to use as down-payment on a house. Officer VanCamp then walked
his drug-sniffing dog around Herron’s car. The dog indicated there were drugs near the
passenger door of Herron’s car.
Detectives used the dog’s response, along with the controlled-buy evidence to obtain a
search warrant for Herron’s car. After the warrant was procured, police found a secret
compartment in the back of the passenger seat that contained crack cocaine packaged for
sale.
The State charged Herron with two counts of Class A felony dealing in cocaine, one
count of Class B felony dealing in cocaine, and being an habitual substance offender. Herron
moved to suppress the evidence collected pursuant to the traffic stop. The trial court denied
5
Officer VanCamp testified that he asked Herron to exit the car because other officers had “already determined
that he was going to be detained.” (Tr. at 248.)
4
his motion and his request for interlocutory appeal. In a bifurcated trial, a jury found Herron
guilty of all three dealing counts and then found he was an habitual substance offender. The
court imposed concurrent sentences for the three felonies -- forty years for each Class A
felony and twenty years for the Class B felony -- and imposed an eight-year habitual
substance offender enhancement, for a cumulative sentence of forty-eight years.
DISCUSSION AND DECISION
Herron asserts the police search of him and his vehicle was unconstitutional. Because
the trial court denied Herron’s request for interlocutory appeal of the denial of his motion to
suppress and his trial proceeded to completion, we review whether the trial court’s admission
of evidence was an abuse of discretion. See Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct.
App. 2012) (interlocutory orders appealed after trial are reviewed for abuse of discretion),
trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most
favorable to the trial court’s ruling. Id. However, we must also consider the uncontested
evidence favorable to the defendant. Id.Herron argues the seizure of evidence violated both the Fourth Amendment of the
United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although
the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution contain textually
similar language, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200,
1205-06 (Ind. 2008), reh’g denied.
Herron acknowledges the police could pull over his car because the officer believed
his window tint was darker than permitted by law. (Appellant’s Br. at 7.) He claims,
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however, the police unreasonably extended a valid traffic stop by removing him from his car
and searching him because they did not have reasonable suspicion to conduct an investigatory
stop or probable cause to arrest him. As the police had probable cause at the time he was
removed from the car to arrest Herron for dealing cocaine, we need not address his other two
arguments.
1. Fourth Amendment
The Fourth Amendment to the United States Constitution protects people from
unreasonable searches and seizures. U.S. Const. Amend. IV.6 The Fourteenth Amendment
extended to state governments the Fourth Amendment’s requirements for constitutionally
valid searches and seizures. Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). A search
conducted without a warrant is presumed unreasonable unless the State can demonstrate the
search was permitted by one of the exceptions to the warrant requirement. VanPelt v. State,
760 N.E.2d 218, 221 (Ind. Ct. App. 2001), trans. denied. One exception to the warrant
requirement is a search incident to a lawful arrest. White v. State, 772 N.E.2d 408, 411 (Ind.
2002). An arrest is lawful without a warrant when an officer has probable cause to support
the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003). Probable cause for an arrest
exists when the officer has knowledge of facts and circumstances that would warrant a
person of reasonable caution to believe the suspect committed a criminal act. Id.6
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.
6
On an unknown date prior to June 22, 2011, the Howard County Drug Task Force
received anonymous information that a person named Frederick Herron, who drove a White
Chrysler Pacifica with dark-tinted windows, was distributing crack cocaine in the Kokomo
area. Herron challenges the use of that tip for establishing probable cause for his arrest on
the grounds the tip was not associated with any “indicia of reliability” and it “may have been
stale” by June 22, 2011. (Appellant’s Reply at 2.) However, this is not a situation where
police took action based on a tip. See, e.g., Washington v. State, 740 N.E.2d 1241, (Ind. Ct.
App. 2000) (traffic stop based on uncorroborated anonymous tip is unconstitutional), trans.
denied. Instead, the Task Force was investigating Ingle when the Pacifica arrived to deliver
cocaine for the controlled buy. The Pacifica appeared at the first buy location just after
Ingle’s call to his supplier and just before Ingle delivered the crack to J.G. The Pacifica
arrived at the second buy location and was registered to Herron. Those events demonstrate
the tip was from a credible source and the information was not stale. See Moultry v. State,
808 N.E.2d 168, 172 (Ind. Ct. App. 2004) (“When significant aspects of the anonymous
informant’s prediction are verified, there is reason to believe not only that the anonymous
informant was honest, but also that the anonymous informant’s information is sufficiently
credible . . . .”). Accordingly, the tip is one of the facts on which the police could rely when
determining whether they had probable cause to arrest Herron. See id.Herron asserts the “mere presence” of a white Pacifica at two locations where police
were conducting a controlled buy cannot support probable cause. (Appellant’s Br. at 10.)
Herron was not, however, “merely present” at those locations during the controlled
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purchases. Herron arrived at both locations shortly after Ingle called his supplier and ordered
the cocaine J.G. requested. During the first buy, Ingle sat in the Pacifica and then returned to
the house to give J.G. the cocaine. Soon after Herron left the location of the second buy,
police saw what appeared to be the buy money in plain view in Herron’s car. These facts,
when combined with the anonymous tip, gave the police probable cause to arrest Herron for
dealing cocaine. See Jackson v. State, 597 N.E.2d 950, 957 (Ind. 1992) (circumstantial
evidence, much of which involved location of defendant’s car in relation to car involved in
crime, sufficient to support probable cause to arrest for bank robbery by masked men who
could not be identified visually), reh’g denied, cert. denied 507 U.S. 976 (1993).
Upon proper arrest, police may search the arrestee and the area within the arrestee’s
immediate control. White, 772 N.E.2d at 411. Thus, after removing Herron from the car,
Officer VanCamp was authorized to remove the money from Herron’s pockets and to detain
him while police obtained a search warrant for Herron’s car. The court therefore did not
abuse its discretion when it admitted the evidence collected after Herron was removed from
his car. See Fentress v. State, 863 N.E.2d 420, 424 (Ind. Ct. App. 2007) (no error in
admission of evidence collected where police had probable cause for arrest before they
collected challenged evidence).
b. Article 1, Section 11
The language of Article 1, Section 11, the search and seizure provision of the Indiana
Constitution, is virtually identical to its Fourth Amendment counterpart. Section 11 provides:
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
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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.
This provision must receive a liberal construction in its application to protect the people from
unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).
As we resolve challenges asserting this Section, we consider the circumstances
presented in each case to determine whether the police behavior was reasonable. Saffold v.
State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied. The State has the burden of
showing the intrusion was reasonable under the totality of the circumstances. Id. In
determining reasonableness under Section 11, we recognize Indiana citizens are concerned
not only with personal privacy but also with safety, security, and protection from crime. Id.When government intrusion is challenged under Section 11, therefore, the determination of
reasonableness under the totality of circumstances may include consideration of police
officer safety. Id.Officers are permitted to stop a vehicle when they observe a traffic violation, Black v.
State, 621 N.E.2d 368, 370 (Ind. Ct. App. 1993), even if the officer may have an ulterior
motive of furthering an unrelated criminal investigation. Mitchell v. State, 745 N.E.2d 775,
787 (Ind. 2001). The officers could stop Herron’s car based on their belief the tint on his
windows was illegal. Once stopped, we believe the totality of the circumstances known to
police demonstrate the reasonableness of the police officers’ decision to arrest Herron for
dealing crack cocaine. The two controlled purchases made by the confidential informant
corroborated the anonymous tip, and an officer saw in plain view what appeared to be the
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buy money in Herron’s car. That evidence gave police reasonable belief Herron should be
arrested for dealing cocaine, and it was reasonable under our State Constitution for police to
search Herron incident to that arrest. See Winebrenner v. State, 790 N.E.2d 1037, 1041 (Ind.
Ct. App. 2003) (search reasonable under Art. 1, Sect. 11 where incident to arrest supported
by probable cause).
CONCLUSION
Because the police officers had probable cause to believe Herron was delivering
cocaine, his arrest on being removed from the car was permissible. The trial court therefore
did not abuse its discretion in admitting evidence seized from that point forward.
Accordingly, we affirm the trial court’s judgment.
Affirmed.
NAJAM, J., and KIRSCH, J., concur.
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