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State v. Vance

Court of Appeals of Indiana

February 13, 2019

State of Indiana, Appellant-Plaintiff,
v.
Dusten T. Vance, Appellee-Defendant.

          Appeal from the Delaware Circuit Court Trial Court Cause No. 18C02-1806-F5-92 The Honorable Kimberly S. Dowling, Judge

          Attorneys for Appellant Curtis T. Hill, Jr. Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

          Attorney for Appellee Angelus T. Kocoshis Muncie, Indiana

          BAILEY, JUDGE.

         Case Summary

         [¶1] The State of Indiana appeals the trial court's suppression of evidence found during a search of the residence of Dusten Vance ("Vance"), based upon the trial court's determination that the search warrant was issued without probable cause. The State contends that the warrant was supported by probable cause developed in a series of controlled buys and that, even if probable cause was lacking, the officers acted in good faith and the exclusionary rule should not apply. We affirm.

         Facts and Procedural History

         [¶2] During April of 2018, Investigator Tyler Parks of the Delaware County Sheriff's Office ("Officer Parks"), assisted by a confidential informant ("CI"), was involved in three state-sponsored buys of cocaine. On April 13, April 20, and April 23, 2018, CI was searched and provided with photocopied money. On each occasion, CI contacted an individual described by law enforcement as the "Target." (Tr. at 17.) On the first occasion, Target went to a hotel before providing CI with cocaine.[1] On the second occasion, Target went to a residence before providing CI with cocaine.

         [¶3] On the third occasion, Target was picked up at a residence and driven to a street corner, where he exited the vehicle and began to walk north. Target was under police surveillance at that time, but the visual surveillance was interrupted for a short time. When visual surveillance was restored, officers observed Target leaving Vance's residence. Target provided CI with 1.5 grams of cocaine. Target was then taken back to the residence where he had been picked up.

         [¶4] Officer Parks executed an affidavit of probable cause for a search warrant of an address on Turner Street. He stated that "This house has an occupant of Dustin [sic] Vance aka (dustball)." (App. Vol. II, pg. 44.) The affidavit represented that members of the Delaware County Narcotics Unit had conducted "controlled cocaine purchases" and these were "from the same unnamed target." (Id. at 43-44.) The search warrant for Vance's residence was granted and, upon its execution, officers found cocaine and marijuana.

         [¶5] The State charged Vance with Possession of Cocaine[2] and Maintaining a Common Nuisance.[3] Vance moved to suppress the evidence obtained during the execution of the search warrant, alleging that material facts had been omitted from the affidavit for a search warrant and the warrant was unsupported by probable cause. At the suppression hearing, conducted on July 5, 2018, Vance elicited evidence to show that he was not Target and Target had not been searched as part of the state-sponsored buys. Vance argued that the affidavit for the search warrant omitted this material information and that the State had, in fact, conducted what was "really an uncontrolled buy." (Tr. at 32.)

         [¶6] On July 6, 2018, the trial court issued its suppression order. Having found that Target was never searched, the trial court concluded:

[T]he officers had no knowledge of whether the target had the drugs on him when he entered into or exited from the locations to which he was directing the CI.
The target simply entering into a location does not establish that, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found.

         (App. Vol, II, pg. 85.) The State dismissed the charges against Vance, without prejudice, and brought this appeal pursuant to Indiana Code Section 35-38-4-2(5).[4]

         Discussion ...


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