George Dixon v. State of Indiana (mem. dec.)

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.
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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
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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
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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
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“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.
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[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
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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.”
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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.
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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.
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