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

• Court: Indiana Court of Appeals
• Decided: July 21, 2016
• Docket: 84A01-1601-CR-312
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 1 of 9 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

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 2 of 9 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

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 3 of 9 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

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 4 of 9 “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.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 5 of 9 [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 Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 6 of 9 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.”

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 7 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 8 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-312 | July 21, 2016 Page 9 of 9