MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 26 2018, 6:43 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Frank Dangerfield, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 49A05-1711-CR-2544 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1604-F2-14201
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 1 of 18 [1] Frank Dangerfield appeals his conviction for dealing in a narcotic drug as a
level 2 felony and the enhancement of his sentence pursuant to an adjudication
that he is an habitual offender. Dangerfield raises one issue which we revise
and restate as whether the court abused its discretion by admitting evidence
obtained as a result of Dangerfield’s arrest. We affirm.
Facts and Procedural History
[2] Detective Scott Wolfe of the Indianapolis Metropolitan Police Department
(“IMPD”) was assigned to the Metro Drug Task Force and began an
investigation into an individual who would eventually be identified as
Dangerfield sometime in the spring of 2016. Between March 7 and March 9,
2016, police arranged a controlled purchase of heroin through a confidential
informant (“CI”) with whom working had “led to the seizure of drugs in the
past as well as the arrest and conviction of people for drug crimes.” Transcript
Volume 2 at 16. After being “set up . . . with . . . recording equipment” and
being provided with “pre-recorded IMPD buy money,” the CI traveled to a pre-
determined location established with the individual later identified as
Dangerfield and purchased what was later tested to be heroin. Id. at 17.
Following the purchase, the CI met with Detective Wolfe and gave him the
heroin. Detective Wolfe reviewed video obtained by the CI and identified the
person who sold the heroin as Dangerfield, someone who had grown up in the
area that Detective Wolfe had originally patrolled and who had been arrested
by him in the past.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 2 of 18 [3] In preparation for a second controlled purchase which was also conducted in
March 2016, Detective Wolfe researched Dangerfield and discovered that he
was on home detention and obtained the details of his home detention.
Surveillance units monitored Dangerfield’s residence. Once the second
controlled purchase commenced, detectives reported to Detective Wolfe that
they observed Dangerfield exit the residence, enter a vehicle, and head to meet
the CI at the arranged location. Similar to the first controlled purchase, the CI
was provided pre-recorded money. Audio and video surveillance was collected
on the purchase which further “demonstrated that [it] was in fact [Dangerfield]
that was conducting [the purchase].” Id. at 22. Officers met with the CI after
the purchase and recovered the suspected heroin, which later tested positive.
[4] Detective Wolfe coordinated a third controlled purchase in April 2016, where
the CI placed a telephone call to Dangerfield and the same procedure was
followed with regards to the CI being provided purchase money. The purchase
was also captured on audio and video recording and the CI brought the
acquired substance to officers after meeting with Dangerfield, which also tested
positive for heroin. During the third purchase, Dangerfield was driving a “sort
of a greenish-grey Chrysler 300.” Id. at 23.
[5] On April 13, 2016, officers from the Metro Drug Task Force arrived at
Dangerfield’s residence, intending to “[m]ake an outright arrest.” Id. at 24. As
they arrived, they parked away from the residence. Dangerfield exited the
house with his wife and walked to a green Chrysler 300 parked in the driveway.
Officers identified Dangerfield, drove “right up in the driveway,” exited their
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 3 of 18 vehicles and moved towards the house as Dangerfield approached the Chrysler,
identified themselves as police officers, and told Dangerfield “at that time” to
place his hands in the air. Id. at 77, 110. Dangerfield responded by backing
away toward the garage and moved to the front bumper of the Chrysler, which
faced the garage. He then reached into the front part of his blue jeans, ducked
down, and placed a “clear plastic baggie with a grayish substance” on the
ground that was recognized by Detective Wolfe as “suspected heroin.” Id. at
77, 81. After starting to stand, Dangerfield reached again into his waistband,
and removed and placed a “little over forty-seven hundred dollars” “made
mainly of twenties” on the hood of the car. Id. at 81. An officer placed
Dangerfield in handcuffs, moved him into the front yard of the residence,
patted him down, checked his pockets, and located an additional bag of heroin,
two cellular phones, a lighter, and additional U.S. currency. At some point,
Dangerfield attempted to step on the bag of heroin pulled from his pocket.
[6] After Detective Wolfe was notified of the search of Dangerfield’s person and
the discovered contraband, he explained to Dangerfield why the officers were
present at his residence, advised him of his rights, and obtained the signatures
of Dangerfield and his wife on a standard IMPD consent to search form,
allowing officers to search the residence. While officers entered the house using
keys recovered from Dangerfield, Detective Wolfe interviewed Dangerfield.
Officers found, among other items, “over three thousand dollars” “largely made
up of . . . twenty dollar bills” in a pair of men’s sweat pants in what was
established as the residence’s master bedroom; a digital scale, a hammer, a
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 4 of 18 “Magic Bullet type blender grinder,” and a bottle of “cut,” or a “substance that
you would mix with the heroin like . . . more of the product” to sell and “make
more money”, on the counter to the right of the sink between the sink and the
refrigerator in the kitchen; a box of plastic baggies in the drawer directly below
the area where the digital scale and bottle of “cut” substance were located and
“right next to the suspected narcotics”; and a hydraulic press at the back left
corner of the garage and a bag “just left of the press” with a box of ammunition
and “another small baggie of suspected narcotics” inside. Id. at 87, 89, 117,
120, 135.
[7] On April 15, 2016, Detective Wolfe completed an affidavit for probable cause.
The same day, the State charged Dangerfield with three counts of dealing in a
narcotic drug as level 2 felonies, one count of possession of a narcotic drug as a
level 3 felony, two counts of possession of a narcotic drug as level 4 felonies,
unlawful possession of a firearm by a serious violent felon, a level 4 felony, and
possession of cocaine as a level 5 felony. On May 5, 2017, the State filed a
motion to dismiss, asking to dismiss two counts of dealing in a narcotic drug as
level 2 felonies and the two counts of possession of a narcotic drug as level 4
felonies, which the court granted. The court also dismissed the single count of
unlawful possession of a firearm by a serious violent felon upon motion by the
State.
[8] On August 29, 2017, the court held a jury trial. Prior to trial, the court
addressed preliminary matters, and Dangerfield’s counsel asked to suppress the
evidence obtained on April 13, 2016, and argued that the detectives lacked
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 5 of 18 probable cause to stop Dangerfield and his wife. In response, the State
presented testimony of Detective Wolfe regarding the three foregoing controlled
purchases. Detective Wolfe testified that the general procedure taken to prepare
informants to conduct controlled purchases involved searching the vehicle and
the informant before sending the informant down to conduct the purchase and
sometimes placing a call “down to the target” which would be recorded. Id. at
17. He also testified that, at the point where he “ha[d] three buys on
[Dangerfield],” he knew that Dangerfield had been sentenced, was on home
detention for dealing, and that “[d]ealing in narcotics would be a violation of
[Dangerfield’s] community correction sentence.” Id. at 24. After cross-
examining Detective Wolfe, Dangerfield’s defense counsel stated that, if it was
his intention to arrest Dangerfield on April 13, 2016, Detective Wolfe should
have sought an arrest warrant from a judicial officer because all three controlled
purchases occurred prior to the arrest date. Counsel for the State responded in
part, “[t]here’s no requirement that they get a warrant unless he’s holed up in a
house somewhere. Here the arrest was made as [Dangerfield] was leaving his
home.” The court, in finding that Detective Wolfe had probable cause to arrest
Dangerfield for a felony, stated:
I think based on all of the circumstances that was known to Detective Wolfe, based on the three previous [purchases] I don’t find that they were so remote in time as to perhaps lose their value in terms of – of – lose their probative value. All of the circumstances surrounding those [purchases] including knowledge of Detective Wolfe and including the audio and video recordings of that. I don’t think there’s anything in the law that I
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 6 of 18 am aware of that would mandate that the – the behavior or the offense occurred at the time or directly before the time of arrest. [1]
Id. at 31-32.
[9] Detective Wolfe testified at trial that, when he interviewed him, Dangerfield
admitted the quantity of the money recovered from the hood of the car was
about forty-seven hundred dollars, that officers had recovered heroin on the
ground in front of the car in the quantity of “over forty grams” and from his
pocket, and that he had been currently selling heroin at about fifty dollars per
gram. Id. at 92. He also indicated that he recognized the contents of the bag
that Dangerfield had placed on the ground as “suspected heroin” based on his
training and experience as a narcotics detective. Id. at 81. He testified that the
garage was “an attached garage, which is part of the home,” when asked if
Dangerfield and his wife consented to the search of the garage. Id. at 98.
[10] IMPD Detective Randall Dings testified, when asked what happened after
Dangerfield exited the house, that “[a]s we pulled up, I made eye contact with
[Dangerfield]. And he just kind of looked at us. Did a little head tilt to try to
figure out who we – what we were doing.” Id. at 110-111. In response to being
asked, “as you all got out and headed up towards [Dangerfield], what happened
next,” he stated:
1 Dangerfield’s counsel asked to certify the ruling with this Court, and the trial court responded that it would “deny that motion in terms of an Interlocutory request.” Transcript Volume 2 at 32.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 7 of 18 Detective Wolfe and Detective Graber were giving him commands. Detective Graber made contact – and Wolfe made contact with [Dangerfield]. I observed – originally I observed [Dangerfield] kind of bend down a little bit but I couldn’t see what he was doing. And he stood up as they got to him. And then I saw him set a large amount of cash on the hood of the car.
Id. at 111. He also indicated that plastic baggies, while common to have in a
normal kitchen, are typically used as a “a way to package the narcotics for
sale.” Id. at 120.
[11] IMPD Detective Ryan Graber testified that he arrived at the scene on April 13,
2016, and was involved in the search of the garage of the residence. He also
testified that hydraulic presses were commonly known to narcotics detectives
through experience as items used to re-press narcotics.
[12] The court admitted into evidence, over objection, the State’s photographs of
items discovered that day, as well as the Consent to Search form signed by
Dangerfield and his wife as State’s Exhibit 5 and photographs of the residence.
[13] The jury found Dangerfield guilty of dealing in a narcotic drug as a level 2
felony and not guilty of possession of cocaine as a level 5 felony.2 The court
found Dangerfield to be an habitual offender and sentenced him to twenty years
2 The jury also found Dangerfield guilty of possession of a narcotic drug as a level 4 felony, but the court vacated the judgment at the State’s request.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 8 of 18 for dealing in a narcotic drug as a level 2 felony enhanced by six years for being
an habitual offender.
Discussion
[14] The issue is whether the trial court abused its discretion in admitting the
evidence obtained as the result of Dangerfield’s arrest. Although Dangerfield
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).
[15] “Because the trial court is best able to weigh the evidence and assess witness
credibility, we review its rulings on admissibility for abuse of discretion and
reverse only if a ruling is ‘clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights.’” Carpenter v.
State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252,
260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a
search or seizure is a question of law that we consider de novo.” Id. Even if the
trial court’s decision was an abuse of discretion, we will not reverse if the
admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.
Ct. App. 1999), reh’g denied, trans. denied. We may affirm a trial court’s decision
to admit evidence seized as a result of the search based on any legal theory
supported by the record. Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002); Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 9 of 18 Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000). In ruling on admissibility
following the denial of a motion to suppress, the trial court considers the
foundational evidence presented at trial. Carpenter, 18 N.E.3d at 1001. If the
foundational evidence at trial is not the same as that presented at the
suppression hearing, the trial court must make its decision based upon trial
evidence and may consider hearing evidence only if it does not conflict with
trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[16] Dangerfield argues that the police lacked probable cause for his arrest and that
his rights under the Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Indiana Constitution were violated when he was
“arrested without benefit of a warrant and no crime was in progress.”3
Appellant’s Brief at 10.
A. Fourth Amendment
[17] The Fourth Amendment to the United States Constitution provides, in
pertinent part: “[t]he right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
3 To the extent that Dangerfield claims his Sixth Amendment confrontation rights were violated, we note that this Court does not address constitutional arguments which are raised for the first time on appeal. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“Declining to review an issue not properly preserved for review is essentially a cardinal princip[le] of sound judicial administration.” (internal quotation omitted))). Waiver notwithstanding, the record reveals that the CI did not testify at trial and Dangerfield did not attempt to subpoena the CI as a witness. Under the circumstances, we cannot say that Dangerfield’s Sixth Amendment confrontation rights were violated.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 10 of 18 violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a
warrant, the State bears the burden to show that one of the well-delineated
exceptions to the warrant requirement applies. Osborne v. State, 63 N.E.3d 329,
331 (Ind. 2016). The United States Supreme Court has held that “the
warrantless arrest of an individual in a public place upon probable cause [does]
not violate the Fourth Amendment.” United States v. Santana, 427 U.S. 38, 42
96 S. Ct. 2406, 2409 (1976) (citing United States v. Watson, 423 U.S. 411 [96 S.
Ct. 820] (1976)). See also Sears v. State, 668 N.E.2d 662, 666-667 (Ind. 1996) (“It
is equally well settled that a police officer may arrest a suspect without a
warrant if that officer has probable cause to believe that the suspect has
committed a felony.”).
[18] Probable cause to arrest arises when, at the time of the arrest, the arresting
officer has knowledge of facts and circumstances which would warrant a person
of reasonable caution to believe that the defendant committed the criminal act
in question. Thomas v. State, 81 N.E.3d 621, 626 (Ind. 2017) (citing Sears, 668
N.E.2d at 667 (citing Green v. State, 461 N.E.2d 108, 112 (Ind. 1984))). The
amount of evidence necessary to satisfy the probable cause requirement for a
warrantless arrest is evaluated on a case-by-case basis. Id. (citing Peterson v.
State, 674 N.E.2d 528, 536 (Ind. 1996), reh’g denied, cert. denied, 522 U.S. 1078,
118 S.Ct. 858 (1998)). Rather than requiring a precise mathematical
computation, probable cause is grounded in notions of common sense. Id.
(citing Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998) (citing Illinois v. Gates,
462 U.S. 213, 235-236, 103 S.Ct. 2317 (1983))). The evidence required to
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 11 of 18 establish guilt is not necessary for probable cause for an arrest to exist. Decker v.
State, 19 N.E.3d 368, 377 (Ind. Ct. App. 2014) (quoting Roberts v. State, 599
N.E.2d 595, 598 (Ind. 1992), reh’g denied), trans. denied. The existence of
probable cause is a fact-sensitive determination. Id. (citing Kelly v. State, 997
N.E.2d 1045, 1051 (Ind. 2013)).
[19] To effect a lawful arrest, police needed to have probable cause to believe that
Dangerfield dealt in a narcotic drug as defined by Indiana law. See id. At the
time of the offense, Ind. Code § 35-48-4-1(a)(2) governed the dealing of narcotic
drugs and provided in relevant part that a person who “possesses, with intent to
. . . manufacture[,] finance the manufacture of[,] deliver[,] or finance the
delivery of . . . cocaine or a narcotic drug, pure or adulterated, classified in
schedule I or II . . . commits dealing in a narcotic drug . . . .” (Subsequently
amended by Pub. L. No. 44-2016, § 2 (eff. July 1, 2016)). Ind. Code § 35-48-4-
1(e) provided at the time of the offense that the offense be considered a level 2
felony if “the amount of the drug involved is at least ten (10) grams.”
(Subsequently amended by Pub. L. No. 44-2016, § 2 (eff. July 1, 2016)).
[20] Dangerfield contends that the trial court abused its discretion by failing to
suppress the evidence obtained during the warrantless arrest, and that the
proper result should be suppression of “all the evidence stemming from
[Dangerfield’s] arrest.” Appellant’s Brief at 16. He asserts that Detective Wolfe
led a squad of detectives and officers to Dangerfield’s residence without an
arrest warrant and saw no drug distribution or other crime in progress when the
police approached him. He states that “[a]rguendo, in [this] case, the totality of
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 12 of 18 requisite facts and circumstances supporting probable cause seem to exist to
support Judge Gooden’s finding.” Id. at 13 (citing Appellant’s Appendix
Volume 2 at 21-24; Transcript Volume 2 at 16-24, 32, 36). He continues to
argue, “[h]owever, that determination is negated by the fact that the charges
directly associated with the controlled [purchases] creating [Detective] Wolfe’s
probable cause were dismissed.” Id. In his reply brief, Dangerfield contends
that he was not arrested in a public place nor did he forsake a reasonable
expectation of privacy because he was arrested in his driveway, or “arguably
within the ambit of his home’s curtilage, which is an area usually protected
from warrantless searches.” Appellant’s Reply Brief at 6-7 (quoting BLACK’S
LAW DICTIONARY 411-412 (8th ed. 2004) (quoting C.J.S. §§ 36, 71)).
[21] The State argues that the police had probable cause to arrest Dangerfield and
properly conducted a warrantless arrest of him in a public place, namely, the
driveway outside of his home. Specifically, the State argues that the three
controlled purchases of heroin conducted since March 7, 2016, provided ample
probable cause and that its exercise of discretion in charging Dangerfield is
irrelevant to the existence of probable cause at the time of his arrest.
[22] To the extent that Dangerfield argues that the trial court’s probable cause
determination is negated because “the charges directly associated with the
controlled [purchases] creating [Detective] Wolfe’s probable cause were
dismissed,” we observe that the Indiana Supreme Court has held that the “facts
and circumstances of which the arresting officer has knowledge that give him
probable cause to believe a crime has been committed, need not be the same
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 13 of 18 crime with which the defendant is ultimately charged.” Moody v. State, 448
N.E.2d 660, 663 (Ind. 1983).
[23] With respect to whether Detective Wolfe and other police officers had probable
cause, the record reveals that the police arranged three different controlled
purchases of heroin from Dangerfield through the CI, who, each time, was
provided with pre-recorded purchase money and recording equipment, travelled
to pre-determined locations, and captured audio or video footage of the
purchase. Detective Wolfe reviewed footage of the purchases, identified
Dangerfield as the person who had sold the heroin to the CI, and researched
and discovered that Dangerfield was on home detention, as well as the relevant
details of the home detention. As the officers approached Dangerfield on April
13, 2016, outside of his residence he had exited, he reached into his jeans to
place a clear plastic baggie with a grayish substance that was recognized as
“suspected heroin” on the ground and removed and placed a “little over forty-
seven hundred dollars,” comprised of twenty-dollar bills, on the hood of the car.
Id. at 81. Based upon the record, we conclude that Detective Wolfe and other
police officers had probable cause to arrest Dangerfield. Accordingly, we
cannot say Dangerfield’s arrest violated the Fourth Amendment to the United
States Constitution.
B. Article 1, Section 11
[24] Article 1, Section 11 of the Indiana Constitution provides:
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 14 of 18 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.
[25] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
Section 11 of our Indiana Constitution separately and independently. Robinson
v. State, 5 N.E.3d 362, 368 (Ind. 2014) (quoting State v. Washington, 898 N.E.2d
1200, 1205-1206 (Ind. 2008), reh’g denied). “When a defendant raises a Section
11 claim, the State must show the police conduct ‘was reasonable under the
totality of the circumstances.’” Id. “The focus of the exclusionary rule under
the Indiana Constitution is the reasonableness of police conduct.” Hardister v.
State, 849 N.E.2d 563, 573 (Ind. 2006). “We consider three factors when
evaluating reasonableness: ‘1) the degree of concern, suspicion, or knowledge
that a violation has occurred, 2) the degree of intrusion the method of the
search or seizure imposes on the citizen’s ordinary activities, and 3) the extent
of law enforcement needs.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield v.
State, 824 N.E.2d 356, 361 (Ind. 2005)).
[26] Dangerfield argues that the three reasonableness factors established in Litchfield
v. State, 824 N.E.2d 356 (Ind. 2005), require that “police should have obtained a
warrant instead of relying on information from a Confidential Informant
wholly unrelated to the conduct charged in this case.” Appellant’s Reply Brief
at 8. The State contends that Dangerfield’s argument is waived for failure to
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 15 of 18 present it below and argues that the police conduct was eminently reasonable as
police had probable cause for Dangerfield’s arrest from the proper execution of
three controlled purchases of heroin that were audio and video recorded.
[27] We note that the entirety of Dangerfield’s argument regarding the
reasonableness factors under Article 1, Section 11, of the Indiana Constitution
appears initially in his reply brief. Though he mentions both the Fourth
Amendment and Article 1, Section 11, in his principal brief, he fails to provide
an independent analysis of the reasonableness factors under the Indiana
Constitution until his reply brief. Issues are waived if raised for the first time in
a reply brief. Sisson v. State, 985 N.E.2d 1, 14 n.8 (Ind. Ct. App. 2012) (quoting
Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011)), trans. denied. See also Decker,
19 N.E.3d at 375 n.3 (“Failure to make a cogent argument under the Indiana
Constitution constitutes waiver of the issue on appeal.”) (citing Abel v. State, 773
N.E.2d 276, 278 n.1 (Ind. 2002)).
[28] Notwithstanding any issues of waiver, we cannot agree with Dangerfield to the
extent that he argues that the police conduct was not reasonable under the
totality of the circumstances. To the extent that he does argue reasonableness
factors, he asserts that the degree of concern, suspicion, or knowledge that a
violation has occurred is tainted “by the fact that [Dangerfield] was already
under surveillance on April 13, 2016, and that no criminal activity was
observed independently by police contemporaneous to the time he was arrested
at his home without a warrant”; that the degree of intrusion the method of the
search or seizure imposes on the citizen’s ordinary activities was “total”
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 16 of 18 because he was “removed from his home and taken into custody”; and, that the
extent of law enforcement needs to make a warrantless arrest was “minimal, at
best” because the investigation lasted over a month. Id. at 7-8.
[29] The record reveals that, with respect to both the degree of concern, suspicion, or
knowledge that a violation had occurred and the extent of law enforcement
needs, police conducted three controlled purchases of heroin from Dangerfield,
who was identified by Detective Wolfe after reviewing video and audio footage
which had been recorded by the CI. The record also reveals that the degree of
intrusion on Dangerfield’s ordinary activities was not high. Officers arrived at
the residence where Dangerfield was serving home detention and parked away
from the residence. He eventually exited the house and walked to a green
Chrysler 300 parked in the driverway. When officers approached him and
identified themselves, Dangerfield backed away toward the garage and moved
to the front bumper of the Chrysler; reached into the front part of his blue jeans,
ducked down, and placed on the ground a “clear plastic baggie with a grayish
substance” which Detective Wolfe recognized as “suspected heroin” based on
his training and experience; and, after starting to stand, reached again into his
waistband, and removed and placed a “little over forty-seven hundred dollars”
“made mainly of twenties” on the hood of the car. Transcript Volume 2 at 77,
81, 92.
[30] Under these circumstances, we conclude that Dangerfield’s rights against
unreasonable search and seizure under Article 1, Section 11 of the Indiana
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 17 of 18 Constitution were not violated. Accordingly, we cannot say that the trial court
abused its discretion.
Conclusion
[31] For the foregoing reasons, we affirm Dangerfield’s conviction.
[32] Affirmed.
Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018 Page 18 of 18