Frederick Herron v. State of Indiana

991 N.E.2d 165, 2013 WL 3759904, 2013 Ind. App. LEXIS 342
CourtIndiana Court of Appeals
DecidedJuly 18, 2013
Docket34A02-1203-CR-224
StatusPublished
Cited by3 cases

This text of 991 N.E.2d 165 (Frederick Herron v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frederick Herron v. State of Indiana, 991 N.E.2d 165, 2013 WL 3759904, 2013 Ind. App. LEXIS 342 (Ind. Ct. App. 2013).

Opinion

*167 OPINION

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 Pacifi-ca, 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 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. In-gle 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 *168 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, Sergeant Tonda Cock-rell 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 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 *169 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, 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.

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Bluebook (online)
991 N.E.2d 165, 2013 WL 3759904, 2013 Ind. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-herron-v-state-of-indiana-indctapp-2013.