Willie J. Bailey v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 16, 2019
• Docket: 18A-CR-2317
• Status: Published

Opinion

FILED Aug 16 2019, 7:50 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Monika P. Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Willie J. Bailey, August 16, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2317 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff Judge Trial Court Cause No. 49G21-1702-F2-7827

May, Judge.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 1 of 30 [1] Willie J. Bailey appeals his convictions of Level 2 felony dealing in cocaine, 1 Level 2

felony dealing in narcotic drug, 2 Level 6 felony possession of a narcotic drug, 3 Level

6 felony escape for knowingly violating a home detention order, 4 and Class B

misdemeanor possession of marijuana. 5 Additionally, the trial court enhanced

Bailey’s sentence for Level 2 felony dealing in a narcotic drug after finding him to be

a habitual offender. 6 He raises five issues on appeal, which we restate as:

I. Whether the arrest and search of Bailey and his vehicle at a gas station

violated either the Fourth Amendment to the United States Constitution or

Article I, Section 11 of the Indiana Constitution;

II. Whether the search of Bailey’s residence violated either the Fourth

Amendment to the United States Constitution or Article I, Section 11 of

the Indiana Constitution;

III. Whether the trial court committed reversible error in admitting the search

warrant affidavit into evidence;

IV. Whether there was sufficient evidence to demonstrate Bailey constructively

possessed the illegal drugs found in his residence; and

1 Ind. Code § 35-48-4-1. 2 Ind. Code § 35-48-4-1. 3 Ind. Code § 35-48-4-6. 4 Ind. Code § 35-44.1-3-4. 5 Ind. Code § 35-48-4-11. 6 Ind. Code § 35-50-2-8.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 2 of 30 V. Whether the prosecutor committed misconduct during closing arguments.

We affirm.

Facts and Procedural History 7

[2] In November 2016, an anonymous individual informed the Indianapolis

Metropolitan Police Department that a male nicknamed “Skip” drove a black

Chevrolet Camaro, owned a house on Olney Street (“Olney Address”), and sold

heroin out of the Olney Address. The tip indicated that when “Skip” arrived at the

Olney Address every day between 9 a.m. and 10 a.m., drug users would flock to his

car. The tip also stated that prostitutes were working out of the Olney Address.

Consequently, the police began surveillance of the Olney Address. The registered

owner of the Olney Address was Rebecca Goins, Bailey’s domestic partner.

[3] In the course of conducting surveillance on the Olney Address, the officers identified

Bailey as the individual nicknamed “Skip” in the anonymous tip. Bailey was in

community corrections at the time, serving home detention as a result of his

conviction for dealing in a narcotic under Cause No. 49G20-1312-FB-079889.

Bailey’s registered address was on Old Stone Drive (“Old Stone Address”). Goins

was also the registered owner of the Old Stone Address. As a condition of

community corrections, Bailey was not to possess any controlled substances without

7 We heard oral argument in this case on July 15, 2019, in Anderson, Indiana. We thank Anderson University and the Indiana State Police Youth Camp for their hospitality and thank counsel for their able presentations.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 3 of 30 a valid prescription. At his intake into community corrections, Bailey signed the

Marion County Community Corrections contract, which provided:

You must permit MCCC staff and/or Law Enforcement to enter the residence in which you are residing and to conduct a search of the residence at any time, without prior notice. You must permit a search of your person or property by MCCC staff and/or Law Enforcement based on reasonable suspicion that a violation of any part of this contract has occurred.

(State’s Exhibit 8.) The contract also provided that someone on home detention is

always to follow an approved schedule and to stay confined inside his residence,

with certain exceptions (i.e., working or traveling to an approved employment

location, going to the doctor, etc.).

[4] On November 9, 2016, officers observed a dark blue Chevy Camaro with an

Indianapolis Colts license plate, registered to Goins, at the Olney Address. Officers

also observed a woman, later identified as Brittany Griswold, drive to the Olney

Address in a silver Chevy Impala. Griswold exited the Impala, entered the Camaro

for approximately four minutes, left the Camaro, and then drove away from the

Olney Address. Police pulled Griswold over for a traffic violation shortly thereafter

and discovered narcotics in her vehicle.

[5] Police maintained surveillance of the Olney Address over the course of the next few

days, and they witnessed several more “transactions,” during which different persons

would arrive at the scene, enter the Camaro briefly, and then leave the scene.

During these transactions, Bailey remained in the Camaro and, before and after each

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 4 of 30 transaction, an unidentified white female would go between the Olney Address and

the Camaro.

[6] On another day, Bailey drove a white Chevy Silverado, also registered to Goins, to

the Olney Address. Officers observed a woman drive to the Olney Address, enter

Bailey’s vehicle, then return to her vehicle. Shortly thereafter, one of Bailey’s

associates, later identified as Alyssa Masengale, rushed the woman to the local fire

station where medics and firefighters treated her for a heroin overdose. Later that

same day, officers pulled Bailey over for a traffic violation. Officers noticed a strong

odor of marijuana emanating from the vehicle, and a K-9 unit gave a positive

indication for drugs inside the vehicle. However, the officers did not find any drugs

in the vehicle and allowed Bailey to leave.

[7] After a short break in the investigation, officers continued surveillance of the Olney

Address. On January 4, 2017, they observed Bailey drive a Dodge Charger,

registered to Goins, to the Olney Address. Throughout the day, Masengale would

go back and forth from the Dodge Charger to the house, and other individuals would

walk up to the Charger for a short period of time and then leave after an exchange

was made through the driver’s window. When Bailey drove away from the Olney

Address, officers pulled over Bailey’s Charger. The officers smelled burnt marijuana

coming from inside the car, and a K-9 unit gave a positive indication for drugs in the

vehicle. The officers found only marijuana crumbs and allowed Bailey to leave.

[8] On January 9, 2017, officers observed a Dodge Challenger pull up to a pump at a gas

station and, a few minutes later, Bailey’s car pulled up to the pump next to the

Challenger. The driver of the Challenger exited his car, entered the back of Bailey’s Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 5 of 30 car, then a short time later, returned to the Challenger. The front seat passenger of

the Challenger also entered the back of Bailey’s car and returned to the Challenger a

short time later. Minutes later, the officers stopped the Challenger, found cocaine,

marijuana, and four guns inside the vehicle, and arrested the occupants of the

Challenger.

[9] On February 8, 2017, an undercover officer picked up a prostitute, Tiana Anderson,

at the Olney Address. On February 16, 2017, officers surveilled Bailey’s movements

throughout the day. They observed Bailey leave the Old Stone Address and drive to

the Olney Address. At the Olney Address, officers observed a female walk up to the

car, lean in the window for a moment, then walk away. They also saw an individual

drive up to the Olney Address in a Honda and enter Bailey’s vehicle. Masengale also

entered Bailey’s vehicle. After a few minutes, the individual left Bailey’s vehicle,

returned to the Honda, and drove away. Minutes later, a male walked up to Bailey’s

window, exchanged something with Bailey, and then walked away. That morning,

officers also observed females leading men into the house, which led the officers to

believe prostitution was occurring at the house.

[10] The officers followed Bailey around town. At a gas station on North Shadeland

Avenue, officers observed an individual quickly enter the back-passenger seat of

Bailey’s vehicle and leave less than a minute later. At another gas station on North

Oaklandon Road, officers observed a female enter Bailey’s vehicle, sit in the back-

passenger seat for a short period of time, then exit the vehicle. Bailey then returned

to the Olney Address where individuals continued to enter Bailey’s vehicle for short

periods of time and then exit the vehicle.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 6 of 30 [11] Later that same day, officers followed Bailey to the Old Stone Address and then to a

parking lot in front of a barbershop. An individual left the barbershop, entered

Bailey’s vehicle briefly, and then returned to the barbershop. The officers observed

Bailey interact with an individual in a Chevy Cruze at the parking lot. Officers

followed the Chevy Cruze, approached the vehicle ostensibly to ask for directions,

noticed narcotics, and arrested the driver of the vehicle. The driver, Troy Price,

indicated he purchased the narcotics from Bailey at the barbershop. He also picked

Bailey out of a photograph lineup. All told, officers observed twelve different

suspected narcotics transactions between 9 a.m. and 4 p.m. on February 16, 2017.

[12] On February 17, 2017, officers continued their surveillance of Bailey. Bailey drove a

dark blue Camaro from the Old Stone Address to the Olney Address. Masengale

came out of the Olney Address and went back and forth between the Camaro, the

house, and the backyard. Individuals entered the Camaro for short periods of time

or spoke to Bailey through the window of the vehicle. Officers observed nine

suspected narcotics transactions between 9 a.m. and 1 p.m. on February 17, 2017.

[13] Following the surveillance activities, officers checked past incident reports for the

Olney Address. On January 31, 2016, officers responded to an alarm at the

residence and discovered a large amount of marijuana, and a scale, pots, and pans

with cocaine residue on them. On November 11, 2016, officers responded to the

Olney Address in response to a possible heroin overdose, and an ambulance

transported a female to the hospital. On December 22, 2016, officers responded to

the Olney Address again in response to a possible heroin overdose. The officers

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 7 of 30 found a woman and administered Narcan, 8 and an ambulance transported her to the

hospital. In addition to the surveillance described above, the officers conducted a

trash pull on February 20, 2017, from the Old Stone Address, which revealed

marijuana crumbs, drug paraphernalia, and mail addressed to both Bailey and Goins

at the Olney Address and at the Old Stone Address.

[14] Officer Jerry Messer submitted a request for search warrant along with supporting

affidavit on February 23, 2017, at 5:25 p.m. The clerk received the request for search

warrant at 6:45 p.m. Commissioner John Boyce received and granted the request at

7:33 p.m. The search warrant authorized search of the premises of both the Old

Stone Address and the Olney Address, as well as a 2008 White Chevy Silverado, a

2010 Blue Chevy Camaro, and a 2013 White Dodge Charger.

[15] On February 24, 2017, officers stopped Bailey at a gas station. The officers arrested

Bailey and searched him. During the search, officers recovered 4.9 grams of fentanyl

and $295. Officers also searched Bailey’s Camaro and recovered clear plastic baggies

and a scale. Officers then transported Bailey to the Old Stone Address. On the way,

Bailey made an unprompted comment that he was in big trouble because there were

drugs in the house. Bailey also notified officers that there was a key to the Old Stone

Address located under the doormat. The officers used this key to gain access to the

Old Stone Address. During the search, officers found heroin residue and suspected

8 Narcan is a trademark for the drug naloxone hydrochloride. Narcan. (n.d.) The American Heritage® Medical Dictionary. (2007). Retrieved August 2, 2019, from https://medical-dictionary.thefreedictionary.com/Narcan The drug is used to treat opiate overdose and to reverse coma and respiratory depression. naloxone hydrochloride. (n.d.) Medical Dictionary for the Health Professions and Nursing. (2012). Retrieved August 2, 2019, from https://medical- dictionary.thefreedictionary.com/naloxone+hydrochloride

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 8 of 30 marijuana particles in the saddlebag of a motorcycle parked in the garage. The

police searched the Dodge Charger at the Old Stone Address and found .67 grams of

cocaine inside the vehicle. Police recovered $9,000 in cash inside the nightstand of

the master bedroom, pictures of Bailey on top of the nightstand, and mail addressed

to Bailey on the nightstand. In the kitchen, officers found 10.28 grams of marijuana,

27.6 grams of cocaine, and 12.99 grams of fentanyl. They also found plastic bags

and lactose. 9

[16] Subsequently, the State charged Bailey with several drug offenses including dealing

in cocaine, dealing in a narcotic drug, possession of cocaine, possession of a narcotic

drug, possession of methamphetamine, escape, possession of a controlled substance,

dealing in marijuana, and possession of marijuana. 10 The State also sought a

habitual offender enhancement based on Bailey’s past convictions.

[17] On May 11, 2018, Bailey filed a motion to suppress the evidence gathered during the

traffic stop on February 24, 2017, and during the searches of the Old Stone Address

and the Olney Address, on the basis that the search warrant was issued without

probable cause. The State entered the search warrant affidavit and the warrant into

evidence at a hearing on the motion, and then both Bailey and the State submitted

post-hearing briefs. Bailey argued in his post-hearing brief that the statements of the

anonymous informant and of Troy Price were not demonstrated to be adequately

reliable and that the information in the search warrant affidavit was stale and

9 A sergeant with the Indiana State Police Drug Enforcement Section testified that lactose is a common ingredient used by drug dealers to dilute the efficacy of fentanyl and artificially increase the volume of the product. 10 The State later dismissed the possession of methamphetamine, possession of a controlled substance, and dealing in marijuana charges.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 9 of 30 conclusory. The trial court denied Bailey’s motion to suppress. The trial court held

the search warrant was supported by probable cause and, although the investigation

began with an anonymous tip, the officers conducted a large surveillance operation

that corroborated the information in the tip.

[18] The trial court held a two-day jury trial on August 14-15, 2018. The jury returned a

verdict of guilty on all counts. The trial court entered judgments of conviction for

Level 2 felony dealing in cocaine, Level 2 felony dealing in a narcotic drug, Level 6

felony possession of a narcotic drug, Level 6 felony escape, and Class B

misdemeanor possession of marijuana. 11 Bailey admitted being a habitual offender,

and the trial court enhanced his sentence for dealing in a narcotic drug. For these

five convictions, Bailey received an aggregate sentence of forty years in the

Department of Correction, and the trial court ordered these forty years be served

consecutive to Bailey’s sentence imposed under a separate cause number.

Discussion Bailey’s Search and Seizure Claims [19] The trial court has broad discretion to rule on the admissibility of evidence, and we

will reverse the trial court only upon finding an abuse of discretion. Holloway v. State,

69 N.E.3d 924, 929 (Ind. Ct. App. 2017), trans. denied. An abuse of discretion occurs

when “admission is clearly against the logic and effect of the facts and circumstances

and the error affects a party’s substantial rights.” Id. We will not reweigh the

11 The trial court merged the possession of cocaine finding into the dealing in cocaine conviction to avoid a double jeopardy violation.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 10 of 30 evidence and will resolve all conflicts in favor of the trial court’s ruling. Id.

Nonetheless, the constitutionality of a search and seizure is a question of law, which

we review de novo. Id.

Bailey’s Objections

[20] Bailey objected to the searches of his person and his Camaro at the gas station and

the searches of the Old Stone Address and Olney Address via a motion to suppress

and at trial. As we have previously explained, “[i]n order to preserve an appellate

argument challenging the admission of evidence, a party must have made a

contemporaneous objection at trial, and the failure to object will result in waiver of

any alleged error.” Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014). The

contemporaneous objection requirement applies even when the defendant filed a

pretrial motion to suppress. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g

denied. In his Memorandum in Support of Motion to Suppress, Bailey challenges the

search warrant by asking rhetorically, “[w]as this the basis for the outright felony

arrest of the Defendant, four days later, prior to search warrant issuance, and without

the benefit of a judicially reviewed and issued arrest warrant? And so should that

arrest be redacted/struck/eliminated?” (Appellant’s App. Vol. II at 119.)

[21] When Officer Bragg testified regarding the search of Bailey at the gas station, Bailey

objected to testimony about the search. The Court noted Bailey’s objection and

overruled it. Bailey also objected to questioning about the fentanyl found during the

search and to additional testimony about the search, generally. Additionally, the

Court noted during a hearing outside the presence of the jury that it would treat its

denial of Bailey’s motion to suppress as Defendant’s ruling under Evidence Rule

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 11 of 30 103(B), which provides “[o]nce the court rules definitively on the record at trial a

party need not renew an objection or offer of proof to preserve a claim of error for

appeal.” Consequently, Bailey adequately preserved an objection to his arrest and to

the subsequent searches for purposes of appeal because he raised the objection in a

motion to suppress and objected at trial. See Sullivan v. State, 748 N.E.2d 861, 864-65

(Ind. Ct. App. 2001) (holding defendant preserved claim of error by objecting via a

motion to suppress, incorporating his objections raised in the motion to suppress

during trial, and entering a continuing objection at trial).

Arrest and Search of Bailey and His Vehicle at Gas Station

Fourth Amendment Analysis

[22] Individuals have a constitutional right against arbitrary search and seizure by law

enforcement. The Fourth Amendment to the United States Constitution, as applied

to the states by virtue of the Fourteenth Amendment, protects individuals from

illegal searches and seizures by state actors. U.S. CONST. amend. IV; U.S.

CONST. amend. XIV. Searches conducted without a warrant are per se

unreasonable unless they fall into a few recognized exceptions. Burkett v. State, 736

N.E.2d 304, 306 (Ind. Ct. App. 2000). These exceptions are strictly construed, and it

is the State’s burden to prove the warrantless search falls into one of the exceptions.

Id. Evidence obtained without a warrant and in a circumstance that does not qualify

as an exception to the warrant requirement is not admissible. Holloway, 69 N.E.3d at

930.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 12 of 30 [23] Bailey argues the officers did not have a valid arrest warrant to stop his Camaro and

take him into custody on February 24, 2017. Bailey notes the only arrest warrant in

the record is dated February 25, 2017. However, law enforcement may conduct an

investigatory stop with reasonable suspicion of criminal activity. Terry v. Ohio, 392

U.S. 1, 30 (1968). “Reasonable suspicion exists where the facts known to the officer

and the reasonable inferences therefrom would cause an ordinarily prudent person to

believe that criminal activity has or is about to occur.” Castner v. State, 840 N.E.2d

362, 366 (Ind. Ct. App. 2006). Bailey argues the traffic stop and search of his person

at the gas station was unconstitutional because there was no evidence in the record

that a traffic violation occurred prior to the stop or that criminal activity was afoot.

See Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013) (holding officers did not have

reasonable suspicion of criminal activity when they “encountered three men that

they did not know, in a place where people are permitted to be, doing something

completely in line with the expected activity at the location, at a time when people

might be expected to be found there”). The State notes two police officers testified

the police executed an arrest warrant on Bailey on February 24, 2017, and argues

Bailey is asking us to reweigh the evidence.

[24] Initially, we note the search warrant issued on February 23, 2017, authorized the

search of the Camaro that Bailey was driving when he was searched at the gas

station prior to execution of the search warrant at the Old Stone Address. The

search warrant affidavit requests the trial court issue a search warrant authorizing a

search of the Old Stone Address, the Olney Address, and three vehicles, including

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 13 of 30 the 2010 Blue Chevrolet Camaro with an Indianapolis Colts plate. (State Ex. 1 at

18.) The search warrant itself authorized police

to enter into and upon the described premises identified in the Search Warrant and Affidavit, and there diligently search for the described property detailed in the pages of this Search Warrant. And also to diligently search and to seize person(s) so described and identified in the Affidavit for Search Warrant.

(Id. at 25.) The search warrant affidavit specifically identified Bailey’s Camaro as a

vehicle to be searched and Bailey was the subject of the investigation that was

described in the search warrant affidavit. Therefore, the stop and search of the

Camaro was proper. See State v. Foy, 862 N.E.2d 1219, 1230 (Ind. Ct. App. 2007)

(holding search warrant limited the discretion of the officers executing the warrant

and permitting them to make a rational determination as to what items could

properly be taken as potential evidence), trans. denied.

[25] While not acknowledged by the parties, we find Bailey’s status as a person on home

detention through community corrections to be relevant to his argument that his stop

and search at the gas station violated the Fourth Amendment. See Gonser v. State, 843

N.E.2d 947, 950 (Ind. Ct. App. 2006) (stating “we will affirm the trial court’s ruling

on a motion to suppress if it is sustainable on any legal theory supported by the

record, even if the trial court did not use that theory”). The community corrections

contract Bailey signed required him to allow police to search him and his property

based on reasonable suspicion of behavior violating the contract, such as possession

of illegal drugs. Therefore, based on the information gathered during the police

investigation, Bailey could be detained and searched without an arrest warrant. See

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 14 of 30 State v. Schlechty, 926 N.E.2d 1, 8 (Ind. 2010) (holding warrantless search of

probationer’s car was supported by a probation search term and reasonable suspicion

that the defendant used car to commit stalking), reh’g denied, cert. denied 562 U.S.

1150 (2011).

Article I, Section 11 Indiana Constitution

[26] Bailey also contends the stop of his vehicle at the gas station and the subsequent

searches of his person and the vehicle violate Article I, Section 11 of the Indiana

Constitution, which 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.

This provision of the constitution protects Indiana residents from unreasonable

police intrusion into the private areas of their lives. Mitchell v. State, 745 N.E.2d 775,

786 (Ind. 2001). As our Indiana Supreme Court has explained, this protection

extends to searches of automobiles. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).

“Hoosiers regard their automobiles as private and cannot easily abide their uninvited

intrusion.” Id. at 80. However, a search warrant authorized the search of the

Camaro, and Bailey agreed as a condition of community corrections to be subject to

search upon reasonable suspicion that he violated the conditions of the program.

Therefore, his rights under Article I, Section 11 of the Indiana Constitution were not

violated. See State v. Terrell, 40 N.E.3d 501, 507 (Ind. Ct. App. 2015) (holding search

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 15 of 30 of probationer’s nightstand did not violate the Indiana Constitution when

probationer waived his search and seizure rights as condition of probation).

Validity of Search Warrant for the Olney Address and the Old Stone Address

Fourth Amendment

[27] Bailey argues the search warrant authorizing searches of the Olney Address and the

Old Stone Address was not supported by probable cause because it “contains

uncorroborated and unreliable hearsay upon which the trial court relied in issuing

the search warrant.” (Appellant’s Br. at 30.) 12 Bailey notes that, pursuant to Indiana

Code section 35-33-5-2, a search warrant affidavit must set forth facts known to the

affiant through personal knowledge, or if based on hearsay, contain information

regarding the reliability of the source or regarding the totality of the circumstances

that corroborate the hearsay. A search warrant affidavit must link alleged drug

activity with the premises to be searched. Hensley v. State, 778 N.E.2d 484, 487-88

(Ind. Ct. App. 2002). The search warrant affidavit must also comply with the

statute. Methene v. State, 720 N.E.2d 384, 388 (Ind. Ct. App. 1999). “Attestations

contained in a probable cause affidavit must be based upon fact and not merely

conclusions of the affiant or a witness.” Id. at 390. Probable cause does not exist if

the supporting affidavit consists solely of uncorroborated hearsay. Newby v. State,

12 Bailey also contests whether Commissioner Boyce reviewed the search warrant affidavit prior to issuing the warrant. He contends that, given the timestamps of when Commissioner Boyce received and when he granted the search warrant request, he did not review the supporting affidavit prior to issuing the search warrant. However, this argument invites us to make a factual determination, which is the province of the trier of fact not the appellate court. In re R.C., 713 N.E.2d 285, 287 (Ind. Ct. App. 1999). We evaluate the issuance of the search warrant to see if it was supported by probable cause, which is our province to review. See Cheever-Ortiz v. State, 825 N.E.2d 867, 873 (Ind. Ct. App. 2005) (holding there was a substantial basis to determine probable cause existed to issue search warrant).

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 16 of 30 701 N.E.2d 593, 598 (Ind. Ct. App. 1998). An anonymous tip, standing alone,

cannot support a finding of probable cause. See McGrath v. State, 95 N.E.3d 522, 527

(Ind. 2018). However, an officer can bolster the trustworthiness of a source of

unknown credibility by including in the search warrant affidavit the basis of the

informant’s knowledge or facts obtained through independent police investigation

that corroborate the source. Id.

[28] There are several ways an officer can demonstrate the trustworthiness of information

in a search warrant affidavit. For example, hallmarks of trustworthiness include

whether “(1) the informant has given correct information in the past; (2) independent

police investigation corroborates the informant’s statements; (3) some basis for the

informant’s knowledge is shown; or (4) the informant predicts conduct or activities

by the suspect that are not ordinarily easily predicted.” Jaggers v. State, 687 N.E.2d

180, 182 (Ind. 1997). The magistrate is to make a practical, commonsense

determination whether there is a fair probability that evidence of a crime or

contraband will be found if the search warrant is issued. Id. at 181.

[29] Bailey argues the search warrant affidavit does not establish the credibility of the

anonymous tipster, Troy Price, or Tiana Anderson, nor does the affidavit contain

information corroborating the statements of these individuals. Bailey also argues the

search warrant affidavit failed to establish a nexus between the Old Stone Address

and suspected criminal activity. Bailey notes most of the surveillance described in

the affidavit occurred at the Olney Address. Bailey acknowledges a trash pull at the

Old Stone Address yielded a strong odor of marijuana, a needle cap and a plunger

cap for a hypodermic needle, and a mixture of paper, a plastic bag, and electrical

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 17 of 30 tape. He argues this evidence is, however, insufficient to support a finding of

probable cause.

[30] While an anonymous tip initiated the investigation and while statements by Price

and Anderson are included in the search warrant affidavit, most of the information

contained in the affidavit was obtained via surveillance and police investigation.

Bailey drove cars registered to Goins to the Olney Address. Goins listed the Old

Stone Address as her home address on her driver’s license. Bailey also identified the

Old Stone Address as his home address. Police stopped a woman after she left

Bailey’s Camaro at the Olney Address, and they found drugs and paraphernalia in

her possession. Bailey’s associates rushed another woman to a local firehouse to be

treated for a heroin overdose shortly after she entered and left Bailey’s Camaro.

Officers also stopped Bailey’s vehicle twice prior to issuance of the warrant. During

these stops, police dogs indicated drugs were present in the car, but officers could not

find the drugs. Moreover, officers found marijuana and drug paraphernalia when

they conducted a trash pull at the Old Stone Address.

[31] Bailey analogizes his case to Buford v. State, where we held officers lacked probable

cause for a residential search warrant to search for evidence of dealing premised on

an uncorroborated anonymous tip about drug dealing out of a suspect’s rental house.

40 N.E.3d 911, 916 (Ind. Ct. App. 2015). In Buford, the only allegation of dealing in

the search warrant affidavit was based on the anonymous tip, and the affidavit did

not contain any information corroborating the anonymous tip. Id. at 915. However,

with regard to Bailey, even though the alleged drug dealing occurred away from the

Old Stone Address, the totality of the evidence described in the search warrant

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 18 of 30 affidavit indicates the potential presence of evidence of a drug dealing operation at

the Old Stone Address, including the items recovered in the trash pull at the Old

Stone Address, Bailey’s connection to the Old Stone Address and the Olney Address,

Bailey’s regular trips from the Old Stone Address to the Olney Address, Bailey’s

storage of various vehicles at the Old Stone Address, and Bailey’s status on

community corrections for a drug offense for which he was to be serving house arrest

at the Old Stone Address. Consequently, the search warrant affidavit contained

sufficient information to support a finding of probable cause that evidence of a crime

would be found inside the Old Stone Address. See Scott v. State, 883 N.E.2d 147, 156

(Ind. Ct. App. 2008) (holding information provided by confidential informant was

sufficiently corroborated by police investigation and defendant’s recent history of

methamphetamine manufacture to support issuance of search warrant authorizing

search of defendant’s home).

[32] Additionally, Bailey contends the information contained in the search warrant

affidavit was stale. He notes the information in the search warrant affidavit alleging

drug dealing activity was weeks to months old when the search warrant was issued

and argues “[g]iven that the contraband alleged involved was drugs, which is highly

mobile and, in some instances, readily ingested, such information was stale.”

(Appellant’s Br. at 38.)

[33] The information contained in a search warrant affidavit must be timely. Mehring v.

State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), reh’g denied, trans. denied. A drug

dealing operation consists of many items which are easily moveable, which can

potentially render information contained in a search warrant affidavit stale. See

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 19 of 30 Owens v. United States, 387 F.3d 607, 608 (7th Cir. 2004) (finding ninety-day-old

information regarding drug sale referenced in probable cause affidavit was stale).

“The general rule is that stale information cannot support a finding of probable

cause, but rather, only gives rise to mere suspicion.” Seeley v. State, 782 N.E.2d 1052,

1060 (Ind. Ct. App. 2003), trans. denied, cert. denied 540 U.S. 1020 (2003).

Nevertheless, the exact moment information becomes stale cannot be precisely

determined. Id. We must look to the facts and circumstances of each case to

determine whether the facts and information contained in the search warrant

affidavit are stale. Mehring, 884 N.E.2d at 377. For instance, evidence of an ongoing

criminal operation is not necessarily stale just because it is weeks or months old. Id.

at 380 (holding ten-month-and-nineteen-day delay between when FBI agent

downloaded child pornography images from defendant’s IP address to when local

police officer applied for search warrant did not render the information in the search

warrant stale).

[34] The State contends the information in the search warrant affidavit was not stale

because it was evidence of an ongoing criminal operation. The police conducted

surveillance for a period of approximately four months and observed evidence of

ongoing, regular drug selling activity during the entire investigation. While a user

will likely consume drugs shortly after obtaining them, a dealer will likely maintain

an inventory and regular supply of drugs to sell. 13 The observations consistently

linking Bailey to suspected drug dealing activity, even if weeks or months old,

13 At trial, Sergeant Shafer testified that users of cocaine, heroin, and fentanyl usually do not possess large quantities of drugs because they tend to ingest the drugs shortly after obtaining them. In contrast, dealers will tend to have larger quantities of drugs. (See Tr. Vol. III at 56-60.)

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 20 of 30 supports the likelihood that he possessed drugs at the time the warrant was issued.

Thus, we hold the search warrant affidavit demonstrated evidence of an ongoing

criminal operation and therefore was not based on stale information. See Shell v.

State, 927 N.E.2d 413, 419 (Ind. Ct. App. 2010) (holding search warrant was not

based on stale information even though trash pull occurred three weeks after

confidential informant relayed information).

[35] Bailey argues the searches of the Olney Address and Old Stone Address violated his

rights under the Indiana Constitution for the same reasons he argues they violated

his Fourth Amendment rights. The Indiana Constitution protects Hoosiers from

unreasonable searches and seizures. Litchfield v. State, 824 N.E.2d 356, 359-60 (Ind.

2005). The reasonableness of the search is evaluated by looking at the totality of the

circumstances and “requires consideration of both the degree of intrusion into the

subject’s ordinary activities and the basis upon which the officer selected the subject

of the search or seizure.” Id. at 360. This inquiry generally requires balancing “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.” Id. at 361. The

information officers gathered in the course of their surveillance operation

demonstrated a high degree of concern or suspicion that Bailey was involved in a

drug dealing operation. Therefore, while the searches of the Olney Address and the

Old Stone Address were highly intrusive, law enforcement had a strong need to

search the addresses because they likely contained evidence of a criminal operation.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 21 of 30 See Carter v. State, 105 N.E.3d 1121, 1131 (Ind. Ct. App. 2018) (holding search of cell

phone pursuant to search warrant was reasonable under the totality of the

circumstances and did not violate the Indiana Constitution), trans. denied.

Admission of Search Warrant Affidavit into Evidence

[36] Bailey raises several arguments on appeal related to admission of the search warrant

affidavit. He contends the affidavit should not have been admitted because it

contained hearsay, evidence of uncharged criminal conduct, and statements of

individuals Bailey did not have the opportunity to cross-examine. The State argues

the search warrant affidavit was not admitted for the purpose of proving the truth of

the matters asserted within it, and therefore, no hearsay violation occurred. Rather,

the State contends, the affidavit was admitted to demonstrate the police obtained a

search warrant before conducting the search. The State also notes that it did not ask

the jury to convict Bailey based on the statements contained in the search warrant

affidavit.

[37] Initially, we note that it is unclear from the record and counsels’ statements during

oral argument whether the search warrant affidavit was published to the jury.

Officer Messer testified about Bailey’s arrest and the search of the Old Stone

Address. The search warrant and accompanying affidavit were admitted as Exhibit 1

during his testimony. (Tr. Vol. II at 198.) However, the State did not move to

publish the search warrant and supporting affidavit to the jury after it was admitted.

With the other exhibits, the State moved to publish the exhibits shortly after they

were admitted. For example, the State moved to publish Exhibits 10, 11, 12, and 13,

photographs of the Camaro, shortly after the photographs were admitted. (Id. at

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 22 of 30 204.) Therefore, the State’s decision to not move to publish Exhibit 1 would seem

to indicate the exhibit was never viewed by the jury.

[38] However, some of the trial court’s instructions to the jury indicate the jury would

have a chance to view all exhibits. For example, the trial court instructed the jury

prior to opening statements:

And then the last thing is that I’ve mentioned in the instructions about exhibits, some of them may be published as we go along for you to look at. If there are exhibits that are not published, we do have an opportunity at the end of trial where those exhibits are available for you to look at. So, don’t be thinking you missed something. They will be, um, published at the end if they’re not published during the pendency.

(Id. at 187.) And, at the close of the State’s presentation of evidence, the trial court

explained to the jury:

Members of the jury, um, at this time as you can see the State has set out all of the exhibits that had been admitted and, um, requested published. This is your opportunity to review any of those exhibits at—any of those exhibits as you deem appropriate or as you wish. You certainly do not have to get up. You do not have to look at anything, but these exhibits do not, as you can imagine, go back in the jury room with you. Uh, so this is your opportunity to review them, the pictures and so forth.

(Tr. Vol. III at 67.) While the State did not request publication of Exhibit 1 after it

was admitted, the record does not indicate whether Exhibit 1was laid out for the jury

to review.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 23 of 30 [39] Nevertheless, we evaluate whether admission of the affidavit amounts to harmless

error. Even if a trial court abuses its discretion in admitting evidence, “we will only

reverse for that error if the error is inconsistent with substantial justice or if a

substantial right of the party is affected.” Lehman v. State, 926 N.E.2d 35, 38 (Ind.

Ct. App. 2010), reh’g denied, trans. denied. The defendant must show that he was

prejudiced by the erroneous admission. Lewis v. State, 34 N.E.3d 240, 248 (Ind.

2015). We will hold the erroneous admission of evidence to be harmless error “if we

are satisfied that the conviction is supported by such substantial independent

evidence of guilt that there is little likelihood the challenged evidence contributed to

the conviction.” Corbally v. State, 5 N.E.3d 463, 470 (Ind. Ct. App. 2014).

[40] A community corrections officer testified that Bailey was in community corrections

at the time of the searches and Bailey listed the Old Stone Address as his home with

community corrections. Bailey was not allowed to possess narcotics while in

community corrections. Nonetheless, officers discovered marijuana residue, cocaine

residue, and heroin residue in the saddle bag of a motorcycle and cocaine in a Dodge

Charger parked inside the Old Stone Address’ garage. Officers also found cocaine,

marijuana, and fentanyl inside a kitchen drawer in the Old Stone Address. Bailey

also possessed fentanyl when he was searched at the gas station. In total, officers

recovered over twenty-eight grams of cocaine and over seventeen grams of fentanyl.

Additionally, officers recovered several items that, while innocuous in and of

themselves, are indicative of drug dealing: lactose in the kitchen of the Old Stone

Address, large amounts of US currency, scales, and plastic bags. Considering the

overwhelming evidence of Bailey’s guilt, if the search warrant affidavit was

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 24 of 30 published, it amounts to harmless error, at most. See Guajardo v. State, 496 N.E.2d

1300, 1303 (Ind. 1986) (holding that allowing the jury to see search warrant and

probable cause affidavit amounted to harmless error because of the overwhelming

evidence identifying the defendant as the perpetrator).

Sufficiency of the Evidence [41] In assessing whether there was sufficient evidence to support a conviction, we

consider the probative evidence in the light most favorable to the verdict. Burns v.

State, 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-finder’s role, not that

of appellate courts, to assess witness credibility and weigh the evidence to determine

whether it is sufficient to support a conviction.” Drane v. State, 867 N.E.2d 144, 146

(Ind. 2007). “Reversal is appropriate only when no reasonable fact-finder could find

the elements of the crime proven beyond a reasonable doubt. Thus, the evidence is

not required to overcome every reasonable hypothesis of innocence and is sufficient

if an inference may reasonably be drawn from it to support the verdict.” Burns, 91

N.E.3d at 641 (internal citation omitted).

[42] Bailey contends the State presented insufficient evidence to demonstrate he

constructively possessed the illegal drugs found at the Old Stone Address. 14 To prove

a defendant possessed contraband, the State is required to prove either actual or

constructive possession. Eckrich v. State, 73 N.E.3d 744, 746 (Ind. Ct. App. 2017),

14 Bailey also argues that if the evidence obtained during the gas station search and the search of the Old Stone Address is suppressed, then there is insufficient evidence to support his convictions. He also notes that if his convictions are reversed, the habitual offender finding must likewise be reversed due to the lack of any felony conviction to which it can attach. See Ind. Code § 35-50-2-8. However, as we held above, the evidence obtained during the gas station search and the search of the Old Stone Address should not have been suppressed. Therefore, his argument fails.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 25 of 30 trans. denied. “Actual possession occurs when a person has direct physical control

over an item. Constructive possession occurs when a person has (1) the capability to

maintain dominion and control over the item; and (2) the intent to maintain

dominion and control over it.” Id. (internal citation and quotation marks omitted).

When a person has exclusive possession of the premises in which contraband is

found, he is assumed to know about the presence of the contraband and be capable

of controlling it. Harrison v. State, 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans.

denied. However, when possession of the premises is not exclusive, the State must

show additional circumstances that indicate the defendant’s knowledge of the

presence of the contraband and ability to control it. Id. Such additional

circumstances include incriminating statements by the defendant, attempted flight, a

drug manufacturing setting, proximity of the defendant to the drugs, drugs being

found in plain view, and the location of the drugs in proximity to items owned by the

defendant. Goffinet v. State, 775 N.E.2d 1227, 1230 (Ind. Ct. App. 2002), trans. denied;

Speer v. State, 995 N.E.2d 1, 10 (Ind. Ct. App. 2013), trans. denied.

[43] Bailey argues the State failed to prove constructive possession of the drugs found in

the Old Stone Address. He argues the State failed to link the motorcycle and the

Dodge Charger found at the Old Stone Address to him. Further, he notes that he did

not have exclusive access to the Old Stone Address. Goins and two children also

lived at the Old Stone Address, and a key to the house was kept under a doormat.

[44] However, Bailey lived at the Old Stone Address. He told Marion County

Community Corrections that he lived at the Old Stone Address. Officers discovered

mail addressed to him at the Old Stone Address and pictures of Bailey were at the

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 26 of 30 Old Stone Address. Marijuana, cocaine, and fentanyl were found in a kitchen

drawer inside the house, not in a hard-to-reach location. Lactose, a cutting agent,

was found on a counter near the drugs. Large sums of cash were found in a

nightstand with pictures of Bailey and Goins on top of the nightstand. The

motorcycle and Dodge Charger where marijuana, heroin, and cocaine were found

were in the garage of the Old Stone Address. When Bailey was searched at the gas

station, he possessed fentanyl, $295 in US currency, plastic bags, and a scale.

Additionally, he made an unprompted comment on the way to the Old Stone

Address about there being a lot of drugs in the house. Given all these facts, a jury

could reasonably determine Bailey had the capability and intent to maintain

possession and control of the controlled substances found at the Old Stone Address.

See Gray v. State, 957 N.E.2d 171, 176 (Ind. 2011) (holding evidence was sufficient to

support finding defendant constructively possessed marijuana when bag of marijuana

was found underneath a coffee table in a common room).

Prosecutorial Misconduct [45] If a defendant objects at trial and asserts a claim of prosecutorial misconduct, “we

determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether

the misconduct, under all of the circumstances, placed the defendant in a position of

grave peril to which he or she would not have been subjected.” Cooper v. State, 854

N.E.2d 831, 835 (Ind. 2006). We consult case law and the Indiana Rules of

Professional Conduct to determine whether a prosecutor’s argument amounts to

prosecutorial misconduct. Id. We assess the degree of peril by looking at “the

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 27 of 30 probable persuasive effect of the misconduct on the jury’s decision rather than the

degree of impropriety of the conduct.” Id.

[46] When a claim of prosecutorial misconduct is not properly preserved, “the defendant

must establish not only the grounds for the misconduct but also the additional

grounds for fundamental error.” Id. “Fundamental error is an extremely narrow

exception that allows a defendant to avoid waiver of an issue. It is error that makes

‘a fair trial impossible or constitute[s] clearly blatant violations of basic and

elementary principles of due process.’” Id. (quoting Benson v. State, 762 N.E.2d 748,

756 (Ind. 2002)). The resulting harm or potential for harm must be substantial.

Davis v. State, 835 N.E.2d 1102, 1107 (Ind. Ct. App. 2005), trans. denied. We assess

harm by looking at “whether the defendant’s right to a fair trial was detrimentally

affected by the denial of procedural opportunities for ascertainment of truth to which

he would have been entitled.” Id. at 1107-08.

[47] Bailey argues the deputy prosecutors committed substantial misconduct during

closing arguments. A prosecutor cannot request a jury convict a defendant for any

reason other than the defendant’s guilt, nor may the prosecutor phrase a final

argument in a manner calculated to inflame the passions or prejudice of the jury.

Jerden v. State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015). The State referenced the

weight of fentanyl found at the Old Stone Address and on Bailey’s person and the

number of potential lethal doses that could be supplied. (Tr. Vol. III at 84-85) (“a

milligram, .001 grams of fentanyl can cause an overdose, he has 18,000 chances of

somebody [overdosing], not only on his person but in his house”); (id. at 88-89) (“he

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 28 of 30 had 5 grams on him. It was actually 4.94. So that’s 494, or 4,940 potential

overdoses”).

[48] Bailey did not object to these comments during trial but argues on appeal that they

constitute fundamental error. He contends the State misstated the evidence to spark

outrage and inflame the passions of the jury. An officer testified that “potentially

milligrams” or approximately .01 grams of pure fentanyl could kill someone

depending on the person’s tolerance level, dependency, and other considerations.

(Id. at 59.) Therefore, the State inaccurately represented that .001 grams of fentanyl

could result in a fatal overdose. Additionally, Bailey points to the State’s comment

that Bailey had “$13,000 laying around” when less than $10,000 was recovered

during Bailey’s arrest and the search of the Old Stone Address. (Id. at 88.) Also,

during closing, the deputy prosecutor said “[w]e caught him before he can deal. We

caught him before he could give any lethal doses to using citizen [sic] in this

community.” (Id. at 89.) Bailey argues these comments “conveyed to the jury that

Bailey was a would-be mass murderer from whom the jury could protect society

through guilty verdicts.” (Appellant’s Br. at 58-59.) He contends the comments

placed him in grave peril because they encouraged the jury to adopt an “us” versus

“him” mentality. (Id. at 59.)

[49] The deputy prosecutors misstated the amount of cash recovered at the Old Stone

Address and the number of potentially lethal doses that could be derived from the

fentanyl recovered from Bailey’s person and the Old Stone Address. However, these

statements appear to be inadvertent mistakes rather than calculated attempts to

inflame the passions of the jury. Further, any error was not so egregious as to

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 29 of 30 constitute fundamental error. The comments were limited in nature and the record

contains substantial evidence of Bailey’s guilt. See Gregory v. State, 885 N.E.2d 697,

707 (Ind. Ct. App. 2008) (holding prosecutor’s statements about the disastrous effects

methamphetamine has on the community did not constitute misconduct), trans.

denied.

Conclusion

[50] We conclude Bailey’s rights under both the United States and the Indiana

Constitutions were not violated when he and his vehicle were stopped and searched.

Further, the warrant authorizing the search of the Old Stone Address and the Olney

Address was supported by probable cause. There was sufficient evidence of guilt in

the record to support the jury’s verdict. Lastly, the prosecutor’s comments during

closing argument do not amount to fundamental error. Therefore, we affirm the trial

court.

Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Opinion 18A-CR-2317 | August 16, 2019 Page 30 of 30