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Bailey v. State

Court of Appeals of Indiana

August 16, 2019

Willie J. Bailey, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court Trial Court Cause No. 49G21-1702-F2-7827 The Honorable Alicia A. Gooden, Judge

          Attorney for Appellant Kimberly A. Jackson Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Monika P. Talbot Deputy Attorney General Indianapolis, Indiana

          May, Judge.

         [¶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
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 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 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 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.

         [¶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 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 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 conclusory. The trial court denied Bailey's motion to suppress. The trial court held the search ...


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